Section 6(4)(a)(v) of the Public Protector Act empowers the Public Protector to investigate  any alleged act or omission by a government employee at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person.  The high court rejected an argument that the Labour Relations Act (LRA) precluded the Public Protector from dealing with the matter.  The high court held that the department of Home Affairs withdrew an employee from a foreign posting in Cuba improperly and acted unreasonably and improperly in not allowing him to be heard and respond to allegations.  The department was ordered to pay a substantial cost of living allowance (Cola) plus interest.

Minister of Home Affairs v Public Protector of the Republic of South Africa (76554/2013) [2016] ZAGPPHC 921 (26 October 2016) per WRC Prinsloo J.

Excerpts without footnotes

[1]        The applicants seek an order reviewing and setting aside the final report by the first respondent (“the Public Protector”) on an investigation into certain alleged conduct of employees of the Department of Home Affairs.  The final report is dated 25 July 2013.

. . . . .

Public Protector’s response to arguments about her jurisdiction

[57]      The applicants challenged the jurisdiction of the Public Protector to investigate this complaint on two grounds:

The Public Protector does not have the necessary jurisdiction to investigate an unfair labour practice complaint which ought to be dealt with in terms of the Labour Relations Act of 1995.  The Public Protector acted ultra vires the enabling legislation, being the Constitution and the Public Protector Act.   Her action in this regard is tainted with illegality so that her findings fall to be set aside.   This appears to be a so-called “legality review” as referred to.

The Public Protector responded to this argument by remarking that the provisions of the Labour Relations Act are subject to the Constitution.   She relied on section 182(1) of the Constitution which provides, as I already pointed out, that the Public Protector has the power, as regulated by national legislation to investigate any conduct in state affairs, or in the public administration in any sphere of government that is alleged or suspected to be improper or to result in any impropriety or prejudice.   She also has the power to take appropriate remedial action as stipulated in section 182(1)(c) of the Constitution.   (Emphasis added.)

She also has additional powers as prescribed by national legislation (in this case the Public Protector Act).   Here it is useful to revisit the provisions of section 6(4)(a) of the Public Protector Act which stipulates that the Public Protector is competent to investigate, on her own initiative or on receipt of a complaint, any alleged maladministration in connection with the affairs of government at any level as well as any alleged abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function.   (Emphasis added.)

In her report, the Public Protector argues that the authority relied upon by the applicants, Gcaba v Minister for Safety and Security and Others 2010 1 SA 238 (CC) has to do with a comparison of the jurisdiction of the High Court and Labour Court when it comes to so-called labour matters, concurrent jurisdiction in certain areas and exclusive jurisdiction of the Labour Court in other areas.   It has nothing to do with the jurisdiction of the Public Protector as ordained by the Constitution itself and the Public Protector Act.   I find myself in respectful agreement with this approach.   The powers of the Public Protector are extremely wide and she is competent to investigate any conduct in state affairs or in the public administration in any sphere of government (emphasis added).   The powers are extended even further in terms of section 6 of the Public Protector Act.   There is no provision in the Constitution or the Public Protector Act to the effect that the Public Protector’s powers, as circumscribed, fall to be excluded in certain instances, such as where the Labour Court has exclusive jurisdiction when compared with the jurisdiction of the High Court.   To argue otherwise, would lead to a situation where the powers of the Public Protector are severely curtailed and arguments that particular alleged maladministration or misconduct fall inside the jurisdiction of a certain court rather than that of the Public Protector, despite the wide powers ordained by the Constitution.

Finally, I add that the applicants did not rely, before me, on the provisions of section 13 of the Public Protector Act which, as I mentioned, stipulates that the provisions of that Act shall not affect any investigation under, or the performance or exercise of any duty or power imposed or conferred by or under, any law.   In my view this does not amount to an ouster of jurisdiction and a curtailment of the wide powers of the Public Protector which she enjoys in terms of the constitutional and other legislative provisions.

I am consequently of the view that there is no merit in the argument that the Public Protector acted beyond the scope of her powers by not paying deference to the provisions of the Labour Relations Act.   Indeed, when making out a case for improper conduct in her report, the Public Protector referred to the Labour Relations Act on a number of occasions.

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[62]      For the sake of detail, I proceed to quote the findings as they appear in the conclusionary portion of the final report:

“10.1    Did the Department withdraw the Complainant from a foreign posting in Cuba and was such withdrawal procedurally flawed and improper?

10.1.1  The Department withdrew the Complainant from a foreign posting in Cuba on the basis of allegations of misconduct against him.

10.1.2  The withdrawal was in violation of clause 5.3 of its contract with him, which required that he be withdrawn on the recommendation of the host country or the Head of the Mission (my note: there was no evidence to the effect that such a recommendation was made.   Indeed, the opposite was suggested in the aide memoire which I dealt with at the beginning of this judgment with the Cuban Foreign Minister stating that it had been agreed that the Ambassador would be summoned ‘with all these elements and, without requesting him to get them out of the country or to declare them personas non grata, point out to him emphatically that new incidents would not be tolerated’).

10.1.3  The conduct of the Department was improper as envisaged in section 182(1)(a) of the Constitution and constitutes maladministration in terms of section 6(4)(a)(i) of the Public Protector Act;

10.2     Was the delay by the Department to hold a disciplinary hearing to deal with the allegations against the Complainant prior to his resignation unreasonable and improper?

10.2.1  The Department delayed to hold a disciplinary hearing to deal with allegations of misconduct against the Complainant (my note: indeed, it is common cause that no disciplinary hearing ever took place).

10.2.2  The delay was in violation of paragraph 7.2(c) of the Public Service Disciplinary Code and Procedures which requires that a disciplinary hearing be held within a maximum period of 60 days.

10.2.3  The delay was unreasonable and improper as envisaged in section 182(1)(a) of the Constitution and constitutes maladministration in terms of section 6(4)(a)(i) of the Public Protector Act.

10.3     Was the Department’s decision to withhold the Complainant’s Cost of Living Allowance due to him by virtue of being posted at the Cuban Foreign Mission after withdrawing him improper?

10.3.1  The Department withheld the Complainant’s Cost of Living Allowance (COLA) due to him by virtue of being posted at the Cuban Foreign Mission after withdrawing him.

10.3.2  The Department’s decision to withhold the Complainant’s cost of living allowance due to allegations of misconduct against him contravened paragraph 6.2.1(iii) (COLA) of the Foreign Service Dispensation read with the DPSA letter dated 22/02/2006, which provides that an official who is recalled due to a Labour Relations action he/she is regarded as being on official duty and hence is entitled to be paid the appropriate percentage of COLA.

10.3.3  The conduct of the Department in withholding the Complainant’s COLA after withdrawing him due to allegations of misconduct against him was improper as envisaged in section 182(1)(a) of the Constitution and constitutes maladministration in terms of section 6(4)(a)(i) of the Public Protector Act; and

10.4     Was the Complainant prejudiced as envisaged in section 6(4)(a)(v) of the Public Protector Act by the Department’s decision to withdraw him from the Cuban Foreign Mission, the delay in holding a disciplinary hearing against him regarding allegations of misconduct in Cuba and the withholding of his COLA due to him by virtue of being posted at a Foreign Mission?

10.4.1  The Complainant suffered an injustice or prejudice as envisaged in section 6(4)(a)(v) of the Public Protector Act; in that

10.4.1.1           he was treated unfairly;

10.4.1.2           he unfairly lost his Cost of Living Allowance that he was legally entitled to;

10.4.1.3           his name and reputation remained tarnished due to the failure to afford him an opportunity to clear his name; and

10.4.1.4           his human dignity was impaired.”

Remedial action

[63]      In terms of the powers conferred upon her by section 182(1)(c) of the Constitution, the Public Protector took the following remedial action:

“11.1    The Director-General of the Department should ensure that the complainant’s allowances which accrued to him in terms of his contract of placement in the Cuban Foreign Mission entered into with the Department, is paid to him together with interest at the prescribed rate of 15,5% per annum from the date of his withdrawal from Cuba until the date he transferred to Correctional Services;

11.2     The Director-General of the Department should investigate the reasons why the case was not dealt with properly and take the necessary action against any person who may have failed to act as required by law and policy; and

11.3     The Director-General of the Department should ensure that the complainant is provided with a letter of apology for the prejudice he suffered as a result of the conduct of the Department in this matter.”