Public Protector Amendment Act

27 NOVEMBER 1998 No. 19524 OFFICE OF THE PRESIDENT I KANTOOR VAN DIE PRESIDEN-I No. 1545.

27 November 1998 No. 1545.

27 No\.cnlbcr I 99X It is hereby notified Act which following information:- that the President has assented to the is hereby published for general Hierby word bekend gemaak dat die keuring algemene geheg het aan die onderstaande inligting gepuhliseer word:- t’rtl\lden[ Wet win hizrby sy goetl- tel No. I I3 of 1998: Public f’rotector Amendment Act, 1998. NO. 113 van 1998: Wysigingswet op die Opcnba~-c l3cskermer. 1998. 2 No. 19.524 GOVERNMENT GAZt3-l-E.

27 NOVEMBER 1998 Ad No. 113, lYY8 PUBLIC PROTECTOR AMENDMENT ACT. 199X GENERAL EXPLANATORY NOI’E: [

1 Words in bold lype exisrinf enaclnients. in square br;~ckers indicate omission from Words underlined with a solid line indicate insertions in existing enactments. (English ICW signed by Ihe President.) (Assenred IO I9 November 1998.) ACT Act, 1994, so as to bring it into line with the of South Africa, 1996; and to provide for matters To amend Constitution connected the Public Protector of the Republic therewith. B E 1T ENACTED follows:- by the Pal-lianlcnt of the Republic of South Africa, a‘ Substitution of long title of Act 23 of 1994

1. The tollo\ving long title is hereby substituted for the long title of the Public Protector Act. 1994 (hereinafter for matters in the Constitution “To provide contemplated and to provide for matters connected therewith.“. referred 10 as the principal Act): incidental to the ofice of the Public Protector as of the Republic of South Africa, 119931 1996; 5 Substitution of Preamble of Act 23 of 1994

2. The following Preamble is hereby substituted for the Preamble of the principal Act: IO “Preamble WHEREAS sections [llO to 1141 181 to I83 of the Constitution of the Republic of South Africa, [1993 (Act 200 of 1993)] 1996 (Act No. 108 of 1996). provide for the establishment of the ofice of Public Protector [in order] and that the Public Protector has the power, as regulated by national against the public to protect investigate and lo [matters such as maladministration conduct improper legislation, matters government, function, unlawful act or omission improper the public administration improper enrichment prejudice acts with respect to public money, of a person performing a public by a person performing to another person] a public any conduct in connection with by a person performing improper the affairs of a public or and an in in state affairs, or in resulting function function in any sphere of Eovernment, that is alleyed or 15 20 4 No. 19524 GOVERNMENT GAZETTE.

27 NOVEMBER 1998 ACT No. 113, 1998 PUBLIC PROTECTOR AMENDMENT ACT, 1998 suspected prejudice. in order Republic: improper to be in any or to have to report on that conduct and to take appropriate support to strengthen constitutional resulted and impropriety or remedial action, the in democracy AND WHEREAS sections 193 and I94 of the Constitution provide for 5 a mechanism for the appointment and removal of the Public Protector; AND WHEREAS the Constirution envisages for certain ancillary matters pertaining provide Protector [, including immunities and privileges, powers and functions and staff of the Public Protector]:“. and conditions of employment, the remuneration further to to the office of Public legislation Amendment 1997 of section 1 of Act 23 of 1994, as amended by section 35 of Act 47 of

3. Section I of the principal Act is hereby amended- after the definition of “commit- .’ ‘Constitution’ means the Constitution of the Republic of South Africa, by the insertion of the following definition tee”: I996 (Act No. IO8 of 1996);“; by the substitution definition: for the definition of “investigation” of the following IO 15 ‘* ‘in\:estigation’ means including any preliminary investigation an investigation referred to thereto;“: related in section 7. 20 by the deletion of the definition of “joint committee”; by the insertion of the following definition after the definition of “member of the office of the Public Protector”: “ ‘Minister‘ means the Minister of Justice;“; by the deletion of the definition of “new Constitution”: by the deletion of the definition of “Pro\rincial Public Protecror”; by the substitution definition: for the definition ot “Public Protector” of the following 25 and ‘* ‘Public Protector’ means any person appointed IA;“. [section 110(2) of the Constitution] section as such in terms of 30 Insertion of section 1A in Act 23 of 1994

4. The following section is hereby inserted in the principal Act after section I: “Establishment and appointment IA. (I) There shall be a Public Protector (2) The President shall, whenever for the Republic. 35 it becomes necessary, appoint a Public 1 Protector Constitution. in accordance with the provisions of section 193 of the (3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such ofice, and who- (n) (b) is a Judge of a High Court; or is qualified cumulative period of at least 10 years after having so qualified- (i) (ii) practised as an advocate or an attorney; or in law at a university; or lectured to be admitted as an advocate or an attorney and has. for a (c) has specialised knowledge of or experience, of justice, public administration for a period of at least 10 or public years, in the administration finance. (4) The Public Protector shall not perform remunerative work outside his or her official duties.“. 50 6 No. 19524 GOVERNMENTGAZE~TE.~~NOVEMBER~~~~ ACI No.113.1998 PUBLICPROTECTORAMENDMENTACT. 1998 Amendment of section 2 of Act 23 of 1994

5. Section 2 of the principal Act is hereby amended- (a) by the substitution for subsection (I) of the following subsection: “( I) [Parliament] The National Assembly accordance with the rules and orders of [Parliament] shall, in appoint a committee Assembly, referred committee (5)((r) of the Constitution.“; to it in terms of this Act: Provided shall be in accordance with the provisions the National for the purpose of considering matters that the composition of such of section 193 S (b) by the substitution for subsection (2) of the following subsection: 10 and other terms and conditions of employment “(2) The remuneration the Public Protector shall [subject llO(6) of to section from time to time be determined the of Constitution,] the National Assembly upon the advice of the committee: Provided that such remuneration- @ shall not be less than that of a judge of [the Supreme Court of South Africa] a High Court; and shall not be reduced, nor shall employment of be adversely altered, during his or her term of office.“; terms and conditions by [Parliament] the (b) I5 (c) by the substitution for subsection (3) of the following subsection: 20 “(3) [Parliament] The National Assembly or, if Parliament the uoint] committee may allow a Public Protector is not in to vacate his session, or her office- (c/I) on account of continued (17) at his or her request: Provided ill-health; or that such request shall be addressed to [Parliament] the National Assembly or the uoint] committee, as the case may be, at least three calendar months prior to the date on which he or she wishes the National Assembly or the Qoint] committee, as the case may be, in a specific case.“; allows a shorter period (4) of the following for subsection to vacate such office, unless [Parliament] subsection: 25 30 (dJ by the substitution “(4) If the uoint] committee in terms of subsection shall communicate her office committee message decision ratified by the National Assembly.“; to [Parliament] taken by the committee allows a Public Protector (3). the chairperson to vacate his or of the uoint] [the vacation the National Assembly: of office] that fact by Provided that any 35 in terms of this subsection must be and (5) of the following subsection: (c) by the substitution for subsection “(5) The Public Protector may, at any time, approach the committee regard with functions] pertaining to any matter [in respect of which Parliament has 40 to the offIce of the Public Protector.‘.. Amendment of section 3 of Act 23 of 1994, as amended by section 35 of Act 47 of 1997

6. Section 3 of the principal Act is hereby amended- (o) by the substitution for subsection (2) of the following subsection: 45 “(2) The Minister shall, after consultation with the Public Protector, fb) by the substitution appoint one or more persons as Deputy Public Protectors.“; subsection: (3) of the following for subsection “(3) A Deputy Public Protector and a person referred to in subsection shall have such powers as the Public Protector may delegate to him 50 o(c) or her.“; (c) by the substitution for subsection “(5) If a vacancy occurs the [President] Minister may, subject to that office.“; appoint another person (6) and (7); (d) by the deletion of subsections (e) by the substitution for subsection (5) of the following subsection: in the office of the Deputy Public Protector to the provisions of this section, 5.5 (8) of the following subsection: 8 No. 19524 GOVEKNMENT GAZETTE,

27 NOVEMBER 1998 Acl No. 113, 1998 PUBLIC PROTECTOR AMENDMENT ACT. 1998 “(8) The remuneration and other terms and conditions of employment of a Deputy Public Protector shall from time to time be determined by the Minister, after the advice of the committee] [Parliament consultation with the Public Protector”: upon (f, by the substitution for subsection (10) of the following subsection: 5 “( 10) The Minister or the Public Protector, as the case may be, shall (8) and (9). in to in subsections the powers referred (I), exercise consultation with the Minister of Finance.“; (g) by the substitution for paragraphs (al and (b) of subsection (I 1) of the following paragraphs: “(a) A document setting out the remuneration, determined and other allowances by the Minister or the Public (9)] this section, the National Assembly within 14 days of employment conditions Protector, as the case may be, in terms of [subsection shall be tabled after such determination. (b) If [Parliament] the National Assembly in [Parliament] of any shall cease to be of force to the extent disapproves determination to which it is so disapproved.“; such determination and (h) by the substitution for subsection (12) of the following subsection: “( 12) The Public Protector may, in the performance of the functions (cl, at his or her request, be to the service of the contemplated assisted by officers in the Public Service seconded Public Protector in terms of any law regulating such secondment.“. in subsection (l)(b) and IO 15 20 Amendment of section 5 of Act 23 of 1994

7. Section 5 of the principal Act is hereby amended by the substitution for subsection 25 (2) of the following subsection: “(2) The State Liability Act. 1957 (Act No. 20 of 1957) shall apply [mututis in respect of the office of the Public in that Act to ‘the Minister of the in ~nutandis] with Protector, and in such application department concerned’ his or her official capacity.“. shall be construed as a reference to the Public Protector the necessary a reference changes Amendment of section 6 of Act 23 of 1994

8. Section 6 of the principal Act is hereby amended- (a) by the substitution for paragraph (b) of subsection (3) of the following paragraph: “(6) prejudiced [subsection subsections exhaust his or her legal remedies and [an act or omission] by (4)(d) or section 112(l)(a)(v) (4) and (5) and has not taken all reasonable referred of the Constitution] conduct to steps to in in connection with such matter.“; (b) by the substitution for subsections (4) and (5) of the following subsections: 14) The Public Protector shall, be competent- (a) to investigate, complaint, any alleged- on his or her own initiative or on receipt of a (i) (ii) (iii) (iv (v a public exercise of power or unfair, capricious, in connection with the affairs of govem- or other improper conduct or undue delay by a maladministration ment at any level; abuse or unjustifiable discourteous person performing improper or dishonest respect to public money; improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a the public person or in connection with the affairs of government administration at any level or of a person performing a public function; or act or omissron by a person in theemploy of government at any as a result of an act or omission function; act, or omission or corruption, with in 30 35 40 45 50 55 10 No. 19524 GOVERN.MENT GAZETTE. 27 NOVEMBER I Y98 Act No. 113,1998 PUBLIC PROTECTOR AMENDMENT ACT, 1998 level, or a person performing in unlawful or improper prejudice a public function, which results to any other person; (b) to endeavour, rectify any act or omission by- in his or her sole discretion, to resolve any dispute or (i) mediation, conciliation (ii) advising, where necessary, any complainant or negotiation; regarding appro- priate remedies; or (iii) any other means at a time prior to, during or after an investigation- that may be expedient in the circumstances; (c) (i) (ii ) that -the facts disclose if he or she is of the opinion the commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions; or if he or she deems it advisable, bearing on an investigation, authority affected by it or to make an appropriate dation regarding from or make any other appropriate deems expedient to refer any matter which has a to the appropriate public body or recommen- there- he or she to the affected public body or authority. the redress of the prejudice recommendation resulting (5) In addition to the powers referred (4), the Public Protector shall on his or her own initiative or on receipt of a complaint be competent (a) to in subsection to investigate any alleged- in connection with the affairs of any institution in shareholder or of any in section 1 of the Reporting by Public maladministration which the State is the majority or controlling public entity as defined Entities Act, 1992 (Act No. 93 of 1992); exercise of power or unfair, capricious, abuse or unjustifiable discourteous or other improper conduct or undue delay by a person a function connected with his or her employment by an performing institution or entity contemplated in paragraph improper improper or unlawful advantage, or promise of such enrichment or advantage, by a person as a result of an act or omisson in connection with the affairs of an institution or entity contemplated act or omission by a person in the employ of an institution or entity contemplated or improper prejudice to any other person. or receipt of any in paragraph in paragraph in unlawful (a), which enrichment (a); or results (a); (b) (d) (5) shall be construed the performance as of (6) Nothing empowering judicial in subsections the Public Protector functions by any court of law. (7) The Public Protector shall be competent (4) and to investigate to investigate, on his or her own initiative or on receipt of a complaint, any alleged attempt to do (4) or (5). anything which he or she may investigate under subsections (8) The Public Protector or any member of his or her staff shall be competent but not compellable in or before a court of law or any body or institution established by or under any law, in connection with any information which in the course of his or her investigation knowledge. has come to his or her to answer questions to the investigation in any proceedings relating (9) Except where the Public Protector in special circumstances, within his or her discretion, to the Public Protector shall not be entertained unless it is reported to the Public Protector within two years from the occurrence of the incident or matter concerned. “. so permits, a complaint or matter referred 5 10 15 20 25 $0 15 i0 12 No. 19524 GOVERNMENT GAZETTE, 27 NOVEMBER 199X Act No. 113,199s PUBLIC PROTECTOR AMENDMENT ACT, 1998 Amendment of section 7 of Act 23 of 1994

9. Section 7 of the principal Act is hereby amended- (n) by the substitution for subsection ( 1) of the following “( 1) [The procedure to be followed subsection: in conducting an investigation shall be determined by the Public Protector with due regard to the of each case, and the Public Protector may direct that circumstances is not any category of persons the desirable, investigation or all persons whose presence at the proceedings shall not be present or any part thereof.] during 5 (a) The Public Protector shall have that has come to his or her knowledge the power, on his or her own initiative or on receipt of a complaint or an allegation or on the ground of information and which points to to in section 6(4) or (5) of this Act, to conduct conduct such as referred the merits of a preliminary the complaint, in which the 15 matter concerned for the purpose of determining and the manner allegation or information should be dealt with. investigation 10 (b)(i) The format and the procedure any shall be determined by the Public Protector with due regard to be followed in conducting investigation to the circumstances of each case. (ii) The Public Protector may direct that any category of persons or all 20 persons whose presence proceedings pertaining is not desirable, to any investigation shall not be present at any or part thereof.“; (b) by the substitution for paragraph (b) of subsection (3) of the following paragraph: “(b)(iJ The Public Protector may designate any person to conduct an or any part thereof on his or her behalf and to report to him investigation or her and for that purpose such a person shall have such powers as the Public Protector may [assign] delegate to him or her [and]. CjiJ The provisions of section 9 and of the instructions issued by the Treasury under section 39 of the Exchequer Act, 1975 (Act No. 66 of [mutufis 1975), mufandis] with the necessary changes in respect of Commissions in respect of that person.“; shall apply of Inquiry, 25 30 (c) by the substitution for subsection (7) of the following subsection: “(‘7) The Public Protector or any person authorised by him or her in from any such writing may administer an oath to or accept an afErmation person.“; 35 (d) by the substitution for subsection (9) of the following to the Public Protector during subsection: is being “(9) @J If it appears the course of an that any person in the matter being and that such implication may be to the detriment of that to that person may result, the to [be heard] [by way of the giving of evidence, investigation investigated person or that an adverse finding pertaining Public Protector shall afford such person an opportunity respond therewith and], in any manner that may be expedient under the circumstances. in connection implicated (b)(i) If such implication forms part of the evidence submitted Public Protector during an appearance subsection in connection therewith by way of giving evidence. (4), such Person shall be afforded an opportunity in terms of the provisions to the of to be heard (ii) Such person or his or her legal representative through the Public Protector, the Public Protector, who have appeared before the Public Protector terms of this section.“; shall be entitled, to question other witnesses, determined by in and 40 45 50 fe) by the addition of the following subsection: “( 11) The Public Protector may make rules in respect of any matter or in to in this section which has a bearing on an investigation referred 55 5 10 15 20 25 14 No. 19524 GOVERNMENT GAZETTE. 27 NOVEMBER 19% Acl No. 113, 1998 PUBLIC PROTECTOR AMENDMENT ACT. 1998 respect of any matter incidental published Assembly.“. in the Government Gazette and thereto, provided that such rules must be the National in tabled Insertion of section 7A into Act 23 of 1994

10. The following section is hereby inserted into the principal Act: “Entering upon premises by the Public Protector 7A. shall be competent (1) The Public Protector to enter, or authorise another person to enter, any building or premises and there to or inquiry as he or she may deem necessary, and to make such investigation seize anything on those premises which in his or her opinion has a bearing on the investigation. (2) The premises virtue of a warrant jurisdiction within which warrant may be issued by a judge area of jurisdiction, (1) may only be entered by or a judge of the area of that such a in respect of premises situated in another referred to in subsection issued by a magistrate the premises is situated: Provided if he or she deems it justified. (3) A warrant contemplated in subsection (2) may only be issued if it on oath or appears at&rnation, (a) (b) (c) to the magistrate, stzting- or a judge from information the nature of the investigation the suspicion which gave rise to the investigation the need, terms of this section, to the investigation, or inquiry; in regard or inquiry: and for a search and seizure in that there are reasonable grounds subsection premises. (1) is on or in such premises or suspected for believing that anything referred to in to be on or in such (4) A warrant issued in terms of this section may be issued on any day and shall be of force until- (a) (I>) it has been executed; it is cancelled by the person who issued available. by any person with like authority; or the expiry of three months from the day of its issue. (r) whichever may occur first. it or, if such person is not 30 (5) (a) Any person who acts on authority of a warrant force as may be reasonably this section may use such overcome including that such person shall first audibly demand admission state the purpose the entry and search of the premises, any resistance the breaking of any door or window of such premises: Provided to the premises and for which he or she seeks to enter such premises. against issued in terms of necessary to 35 to paragraph (b) The proviso is on reasonable grounds of the opinion the person that any object, book or concerned document which is the subject of the search may be destroyed, tampered with or disposed of if the provisions of the said proviso are first complied with. (a) shall not apply where 40 (6) A warrant issued in terms of this section shall be executed by day 45 the Person who issues the warrant authorises unless by night at times which shall be reasonable in the circumstances. the execution thereof (7) Any person executing a warrant in terms of this section shall immediately before commencing with the execution- (a) is present, and hand to such person a copy of the warrant is not present, affix such copy to a prominent place identify himself or herself to the person such person or, if such person on the premises; and supply such person at his or her request with particulars or her authority to execute such a warrant. in control of the premises, regarding his 55 if 50 (6) (8) If during the execution of a warrant or the conducting of a search in 16 No. 19524 GOVERNMENT GAZETTE.

27 NOVEMBER 1998 AcI No. 113,199s PUBLIC PROTECTOR AMENDMENT ACT. 1998 a person claims contains privileged information or removal of such item, the person executing the search shall, if he or she is of the opinion terms of this section, premises concerned the inspection refuses warrant or conducting item contains and thar such request the registrar of the High Court which has jurisdiction delegate, has made a ruling on the question whether privileged or not.“. that any item found on or in the and for that reason the that the or inquiry or inquiry, or his or her to seize and remove that item for safe custody until a court of law is information which is relevant information for the investigation to the investigation the information is necessary concerned Amendment of section 8 of Act 23 of 1994

11. Section 8 of the principal Act is hereby amended- (a) by the substitution for subsection (2) of the following subsection: “(2) (a) The Public Protector shall report in w&ing on the activities of at least once every year: that any report shall also be tabled in the National Council of to the National Assembly his or her office Provided Provinces. [shall submit, @J The Public Protector to Parliament half-yearly of a serious concerned: that the Public Protector] shall, at any time, submit a report on the findings of a particular reports on the findings nature, which were conducted Provided to [Parliament] investigation in respect of investigations the National Assembly the half-year during if- it in the public the urgent attention he or she deems it necessary; he or she deems it requires [Parliament] he or she is requested Assembly; or he or she is requested Chairperson the National Assembly; to do so by the Speaker of the National to do so by the [President of the National Council of Provinces.“; of the Senate] and interest; of, or an intervention by, lb) by the insertion after subsection (2) of the following “(2A) (a) Any report issued by the Public Protector shall be open to subsection: the public, unless circumstances require that the report be kept confidential. (6) If the Public Protector is of the opinion the Public Protector is of the opinion that exceptional require circumstances must be furnished with concurs, terms of the rules of Parliament. that a report be kept confidential, the reasons therefor and, such report shall be dealt with as a confidential that exceptional the committee if the committee document in (c) For the purposes of this section, ‘exceptional circumstances’ shall 5 IO IS 20 25 30 15 40 of the report concerned is likely- the security of the citizens of the Republic; exist if the publication to endanger (i) to prejudice any other investigation (ii) disturb the public order or undermine (iii) the Republic; to be prejudicial in the opinion effective functioning (iv) (v) to the interests of the Republic; or of the Public Protector to have a bearing on the of his or her office.“. or pending the public peace or security of investigation: 45 Amendment of section 11 of Act 23 of 1994 50

12. Section 1 I of the principal Act is hereby amended- (a) by the substitution for subsection (1) of the following “(I) Any person who contravenes 7(2) and 9 of this Act, or interferes with the functioning the Public Protector as contemplated Constitution, (h) by the substitution in section and (3) of the following shall be guilty of an offence.“; for subsection subsection: subsection: the provisions of sections 3( 14). of the office of [111(3)] 181(4) of the 55 I8 No. 19524 GOVERNMENT GAZETTE. 27 NOVEMBER 1998 Act No. 113, 1998 PUBLIC PROTECTOR AMENDMENT ACT. 1998 “(3) Any person who, without just cause, refuses or fails to comply with a direction or request under [section 112(3) (a) of the Constitution or] section 7(4) [(a) of this Act] or refuses to answer any question put to him or her under to such question an answer which to his or her knowledge is false, or refuses to at the request of the Public take the oath or to make an affirmation Protector in terms of section 7(6), shall be guilty of an offence.“. that section or gives [those paragraphs] Repeal of section 12 of Act 23 of 1994

13. Section 12 of the principal Act is hereby repealed. Short title

14. This Act shall be called the Public Protector Amendment Act, 1998. 5 IO