WHEREAS sections 181 to 183 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provide for the establishment of the office of Public Protector and 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 have resulted in any impropriety or prejudice, to report on that conduct and to take appropriate remedial action, in order to strengthen and support constitutional democracy in the Republic;

AND WHEREAS sections 193 and 194 of the Constitution provide for a mechanism for the appointment and removal of the Public Protector;

AND WHEREAS the Constitution envisages further legislation to provide for certain ancillary matters pertaining to the office of Public Protector;

1. In this Act, unless the context otherwise indicates-

'committee' means a committee established under section 2 (1);

'Constitution' means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

'Deputy Public Protector' means any person appointed as such in terms of section [3(2)] 2A(1);

'investigation' means an investigation referred to in section 7, including any preliminary investigation related thereto;

'joint committee' ......

'member of the office of the Public Protector' includes the Public Protector, [a] the Deputy Public Protector, a member of the staff of the Public Protector and any person contemplated in sections 3 (12) and 7 (3) (b);

'Minister' means the [Minister of Justice] Cabinet member responsible for the administration of justice;

'new Constitution' ......

'Provincial Public Protector' ......

'Public Protector' means any person appointed as such in terms of section 1A.

'Public Service Commission' ......

1A. (1) There shall be a Public Protector for the Republic.

(2) The President shall, whenever it becomes necessary, appoint a Public Protector in accordance with the provisions of section 193 of the Constitution.

(3) The Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who-

(a) is a Judge of a High Court; or

(i) practised as an advocate or an attorney; or

(ii) lectured in law at a university; or

(4) The Public Protector shall not perform remunerative work outside his or her official duties.

2. (1) The National Assembly shall, in accordance with the rules and orders of the National Assembly, appoint a committee for the purpose of considering matters referred to it in terms of this Act: Provided that the composition of such committee shall be in accordance with the provisions of section 193 (5) (a) of the Constitution.

(2) The remuneration and other terms and conditions of employment of the Public Protector shall from time to time be determined by the National Assembly upon the advice of the committee: Provided that such remuneration-

(a) shall not be less than that of a judge of a High Court; and

(3) The National Assembly or, if Parliament is not in session, the committee may allow a Public Protector to vacate his or her office-

(a) on account of continued ill-health; or

(4) If the committee allows a Public Protector to vacate his or her office in terms of subsection (3), the chairperson of the committee shall communicate that fact by message to the National Assembly: Provided that any decision taken by the committee in terms of this subsection must be ratified by the National Assembly.

(5) The Public Protector may, at any time, approach the committee with regard to any matter pertaining to the office of the Public Protector.

2A. (1) The President, on the recommendation of the National Assembly, may shall appoint one or more persons a person as Deputy Public Protectors Protector for such periods period as he or she may determine.

(9) If a vacancy occurs in the office of a the Deputy Public Protector the President may shall, subject to this section, as soon as possible, appoint another person to that office.".

3. (1) The Public Protector shall, subject to his or her directions and control, in the performance of his or her functions under this Act and the Constitution, be assisted by-

(a) [one or more] a Deputy Public [Protectors] Protector;

[(2) The Minister shall, after consultation with the Public Protector, appoint one or more persons as Deputy Public Protectors.]

(3) [A] The Deputy Public Protector and a person referred to in subsection (1) (c) shall have such powers as the Public Protector may delegate to him or her.

(4) Whenever the Public Protector is, for any reason, unable to perform the functions of his or her office, or while the appointment of a person to the office of Public Protector is pending, the [most senior] Deputy Public Protector [available] shall perform such functions.

[(5) If a vacancy occurs in the office of the Deputy Public Protector the Minister may, subject to the provisions of this section, appoint another person to that office.]

(6) ......

(7) ......

[(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 consultation with the Public Protector.]

(9) The persons appointed by the Public Protector in terms of subsection (1) (b) or (c) shall receive such remuneration, allowances and other employment benefits and shall be appointed on such terms and conditions and for such periods, as the Public Protector may determine.

(10) In exercising his or her powers in terms of subsections (1) and (9), the Public Protector shall consult with the Minister of Finance.

(11) (a) A document setting out the remuneration, allowances and other conditions of employment determined by [the Minister or] the Public Protector[, as the case may be,] in terms of this section, shall be tabled in the National Assembly within 14 days after such determination.

(b) If the National Assembly disapproves of any determination such determination shall cease to be of force to the extent to which it is so disapproved.

(c) If a determination ceases to be of force as contemplated in paragraph (b)-

(12) The Public Protector may, in the performance of the functions contemplated in subsection (1) (b), at his or her request, be assisted by officers in the Public Service seconded to the service of the Public Protector in terms of any law regulating such secondment.

(13) A member of the office of the Public Protector shall-

(14) No person, other than a person contemplated in section 7 (3), shall conduct an investigation contemplated in section 7 or render assistance with regard thereto in respect of a matter in which he or she has any pecuniary interest or any other interest which might preclude him or her from performing his or her functions in a fair, unbiased and proper manner.

(15) If any person fails to disclose an interest contemplated in subsection (14) and conducts or renders assistance with regard to an investigation contemplated in section 7, while having an interest in the matter being investigated, the Public Protector may take such steps as he or she deems necessary to ensure a fair, unbiased and proper investigation.

4. (1) The Chief Administrative Officer referred to in section 3 (1) (b)-

(a) shall, subject to the [Exchequer Act, 1975 (Act No. 66 of 1975)] Public Finance Management Act, 1999 (Act No. 1 of 1999)-

(2) The records referred to in subsection (1) (a) (ii) shall be audited by the Auditor-General.

5. (1) The office of the Public Protector shall be a juristic person.

(2) The State Liability Act, 1957 (Act No. 20 of 1957), shall apply with the necessary changes in respect of the office of the Public Protector, and in such application a reference in that Act to "the Minister of the department concerned" shall be construed as a reference to the Public Protector in his or her official capacity.

(3) Neither a member of the office of the Public Protector nor the office of the Public Protector shall be liable in respect of anything reflected in any report, finding, point of view or recommendation made or expressed in good faith and submitted to Parliament or made known in terms of this Act or the Constitution.

6. (1) Any matter in respect of which the Public Protector has jurisdiction may be reported to the Public Protector by any person-

(i) the nature of the matter in question;

(ii) the grounds on which he or she feels that an investigation is necessary;

(iii) all other relevant information known to him or her; or

(2) A member of the office of the Public Protector shall render the necessary assistance, free of charge, to enable any person to comply with subsection (1).

(3) The Public Protector may refuse to investigate a matter reported to him or her, if the person ostensibly prejudiced in the matter is-

(4) The Public Protector shall, be competent-

(a) to investigate, on his or her own initiative or on receipt of a complaint, any alleged-

(i) maladministration in connection with the affairs of government at any level;

(i) mediation, conciliation or negotiation;

(iii) any other means that may be expedient in the circumstances;

(c) at a time prior to, during or after an investigation-

(i) mediation, conciliation or negotiation;

(iii) any other means that may be expedient in the circumstances.

(5) In addition to the powers referred to in subsection (4), the Public Protector shall on his or her own initiative or on receipt of a complaint be competent to investigate any alleged-

(6) Nothing in subsections (4) and (5) shall be construed as empowering the Public Protector to investigate the performance of judicial functions by any court of law.

(7) The Public Protector shall be competent to investigate, on his or her own initiative or on receipt of a complaint, any alleged attempt to do anything which he or she may investigate under subsections (4) or (5).

(8) The Public Protector or any member of his or her staff shall be competent but not compellable to answer questions in any proceedings in or before a court of law or any body or institution established by or under any law, in connection with any information relating to the investigation which in the course of his or her investigation has come to his or her knowledge.

(9) Except where the Public Protector in special circumstances, within his or her discretion, so permits, a complaint or matter referred 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.

7. (1) (a) The Public Protector shall have the power, on his or her own initiative or on receipt of a complaint or an allegation or on the ground of information that has come to his or her knowledge and which points to conduct such as referred to in section 6 (4) or (5) of this Act, to conduct a preliminary investigation for the purpose of determining the merits of the complaint, allegation or information and the manner in which the matter concerned should be dealt with.

(b) (i) The format and the procedure to be followed in conducting any investigation shall be determined by the Public Protector with due regard to the circumstances of each case.

(ii) The Public Protector may direct that any category of persons or all persons whose presence is not desirable, shall not be present at any proceedings pertaining to any investigation or part thereof.

(2) Notwithstanding anything to the contrary contained in any law no person shall disclose to any other person the contents of any document in the possession of a member of the office of the Public Protector or the record of any evidence given before the Public Protector, [a] the Deputy Public Protector or a person contemplated in subsection (3) (b) during an investigation, unless the Public Protector determines otherwise.

(3) (a) The Public Protector may, at any time prior to or during an investigation, request any person-

(iii) otherwise subject to the jurisdiction of the Public Protector,

to assist him or her, under his or her supervision and control, in the performance of his or her functions with regard to a particular investigation or investigations in general.

(b) (i) The Public Protector may designate any person to conduct an investigation or any part thereof on his or her behalf and to report to him or her and for that purpose such a person shall have such powers as the Public Protector may delegate to him or her.

(ii) The provisions of section 9 and of the regulations and instructions issued by the Treasury under section [39 of the Exchequer Act, 1975 (Act No. 66 of 1975)] 76 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), in respect of Commissions of Inquiry, shall apply with the necessary changes in respect of that person.

(4) (a) For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person.

(b) The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated.

(5) A direction referred to in subsection (4) (a) shall be by way of a subpoena containing particulars of the matter in connection with which the person subpoenaed is required to appear before the Public Protector and shall be signed by the Public Protector and served on the person subpoenaed either by a registered letter sent through the post or by delivery by a person authorised thereto by the Public Protector.

(6) The Public Protector may require any person appearing as a witness before him or her under subsection (4) to give evidence on oath or after having made an affirmation.

(7) The Public Protector or any person authorised by him or her in writing may administer an oath to or accept an affirmation from any such person.

(8) Any person appearing before the Public Protector by virtue of the provisions of subsection (4) may be assisted at such examination by an advocate or an attorney and shall be entitled to peruse such of the documents or records referred to in subsection (2) as are reasonably necessary to refresh his or her memory.

(9) (a) If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.

(b) (i) If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.

(ii) Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section.

(10) The provisions of this section shall be applicable to any person referred to in subsection (9).

(11) The Public Protector may make rules in respect of any matter referred to in this section which has a bearing on an investigation or in respect of any matter incidental thereto, provided that such rules must be published in the Government Gazette and tabled in the National Assembly.

7A. (1) The Public Protector shall be competent to enter, or authorise another person to enter, any building or premises and there to make such investigation or inquiry as he or she may deem necessary, and to seize anything on those premises which in his or her opinion has a bearing on the investigation.

(2) The premises referred to in subsection (1) may only be entered by virtue of a warrant issued by a magistrate or a judge of the area of jurisdiction within which the premises is situated: Provided that such a warrant may be issued by a judge in respect of premises situated in another area of jurisdiction, if he or she deems it justified.

(3) A warrant contemplated in subsection (2) may only be issued if it appears to the magistrate, or a judge from information on oath or affirmation, stating-

(a) the nature of the investigation or inquiry;

(b) the suspicion which gave rise to the investigation or inquiry; and

that there are reasonable grounds for believing that anything referred to in subsection (1) is on or in such premises or suspected to be on or in such premises.

(4) A warrant issued in terms of this section may be issued on any day and shall be of force until-

(a) it has been executed;

(c) the expiry of three months from the day of its issue,

whichever may occur first.

(5) (a) Any person who acts on authority of a warrant issued in terms of this section may use such force as may be reasonably necessary to overcome any resistance against the entry and search of the premises, including the breaking of any door or window of such premises: Provided that such person shall first audibly demand admission to the premises and state the purpose for which he or she seeks to enter such premises.

(b) The proviso to paragraph (a) shall not apply where the person concerned is on reasonable grounds of the opinion that any object, book or 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.

(6) A warrant issued in terms of this section shall be executed by day unless the person who issues the warrant authorises the execution thereof by night at times which shall be reasonable in the circumstances.

(7) Any person executing a warrant in terms of this section shall immediately before commencing with the execution-

(8) If during the execution of a warrant or the conducting of a search in terms of this section, a person claims that any item found on or in the premises concerned contains privileged information and for that reason refuses the inspection or removal of such item, the person executing the warrant or conducting the search shall, if he or she is of the opinion that the item contains information which is relevant to the investigation or inquiry and that such information is necessary for the investigation or inquiry, request the registrar of the High Court which has jurisdiction or his or her delegate, to seize and remove that item for safe custody until a court of law has made a ruling on the question whether the information concerned is privileged or not.

8. (1) The Public Protector may, subject to the provisions of subsection (3), in the manner he or she deems fit, make known to any person any finding, point of view or recommendation in respect of a matter investigated by him or her.

(2) (a) The Public Protector shall report in writing on the activities of his or her office to the National Assembly at least once every year: Provided that any report shall also be tabled in the National Council of Provinces.

(b) The Public Protector shall, at any time, submit a report to the National Assembly on the findings of a particular investigation if-

(i) he or she deems it necessary;

(ii) he or she deems it in the public interest;

(iii) it requires the urgent attention of, or an intervention by, the National Assembly;

(iv) he or she is requested to do so by the Speaker of the National Assembly; or

(2A) (a) Any report issued by the Public Protector shall be open to the public, unless the Public Protector is of the opinion that exceptional circumstances require that the report be kept confidential.

(b) If the Public Protector is of the opinion that exceptional circumstances require that a report be kept confidential, the committee must be furnished with the reasons therefor and, if the committee concurs, such report shall be dealt with as a confidential document in terms of the rules of Parliament.

(c) For the purposes of this section, 'exceptional circumstances' shall exist if the publication of the report concerned is likely-

(i) to endanger the security of the citizens of the Republic;

(ii) to prejudice any other investigation or pending investigation;

(iii) disturb the public order or undermine the public peace or security of the Republic;

(iv) to be prejudicial to the interests of the Republic; or

(3) The findings of an investigation by the Public Protector shall, when he or she deems it fit but as soon as possible, be made available to the complainant and to any person implicated thereby.

9. (1) No person shall-

(a) insult the Public Protector or [a] the Deputy Public Protector;

(2) Nothing contained in this Act shall prohibit the discussion in Parliament of a matter being investigated or which has been investigated in terms of this Act by the Public Protector.

10. The Public Protector may, with the specific or general approval of the Minister of Finance or any person authorised by the said Minister to so approve, order that the expenses or a portion of the expenses incurred by any person in the course of or in connection with an investigation by the Public Protector, be paid from State funds to that person.

11. (1) Any person who contravenes the provisions of sections 3 (14), 7 (2) and 9 of this Act, or interferes with the functioning of the office of the Public Protector as contemplated in section 181 (4) of the Constitution, shall be guilty of an offence.

(2) Any person who fails to disclose an interest contemplated in section 3 (14), shall be guilty of an offence.

(3) Any person who, without just cause, refuses or fails to comply with a direction or request under section 7 (4) or refuses to answer any question put to him or her under that section or gives to such question an answer which to his or her knowledge is false, or refuses to take the oath or to make an affirmation at the request of the Public Protector in terms of section 7 (6), shall be guilty of an offence.

(4) Any person convicted of an offence in terms of this Act shall be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.

12. ......

13. The provisions of this 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.

14. The Ombudsman Act, 1979 (Act No. 118 of 1979), the Advocate-General Amendment Act, 1983 (Act No. 55 of 1983), and the Advocate-General Amendment Act, 1991 (Act No. 104 of 1991), are hereby repealed.

15. This Act shall be called the Public Protector Act, 1994.

X. Any person who immediately prior to the date of commencement of this Act was appointed as a Deputy Public Protector in terms of section 3(2) of the principal Act, shall as from the said date be deemed to have been duly appointed as the Deputy Public Protector in terms of section 2A(1) of the principal Act.