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csi south africa


Hannah Trustee
Yuri Maharaj
Litigation Division
     
The Constitution empowers the Public Protector to investigate allegations of impropriety on the part of the State. In executing this constitutional mandate, the Public Protector must act without fear, favour or prejudice.

In 2005, the Mail and Guardian published a series of articles exposing what is now commonly known as the "Oilgate scandal". Following the publication of these articles, several members of parliament requested the Public Protector to investigate allegations of impropriety on the part of certain public entities and organs of state.

The Public Protector, after undertaking what can be best described as a superficial and cursory investigation, generated a report within a very short period of time. The report exonerated the public entities and organs of state of any wrongdoing.

The Mail and Guardian challenged the report on the basis that no proper investigation was undertaken by the Public Protector. The North Gauteng High Court agreed and ordered that the report produced by the Public Protector was inadequate, as the investigation preceding the report was flawed in a number of respects.

The Public Protector appealed against the decision to the Supreme Court of Appeal.

The Supreme Court of Appeal was careful to point out two things: Firstly, that it was not for the court to decide whether or not there was impropriety on the part of the state, but only to pronounce on the adequacy, or otherwise, of the Public Protector's report. Secondly, the court was not called upon to direct the Public Protector as to the manner in which he or she should conduct any investigation; this must be left to the Public Protector, himself or herself.

The court found that the Public Protector's report was inadequate and should be set aside. The reason was that the Public Protector lacked an appropriate mindset when the investigation was conducted. The Public Protector did not conduct the investigation with an open and enquiring mind; that is, a mind open to all possibilities and which reflects upon whether the truth had been told.

The accomplice in the crime of corruption is frequently our own indifference.
– Bess Myerson

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