This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
Chapter 8 - The Public Protector, Human Rights Commission, Commission on Gender Issues and Restitution of Land Rights
110 Establishment and appointment
(1) There shall be a Public Protector for the Republic.
(2) The President shall, whenever it becomes necessary, appoint as the Public Protector a person-
a. nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliament and willing to serve on the committee; and
b. approved by the National Assembly and the Senate by a resolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting: Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person.
(3) The first appointment of a person as the Public Protector after the commencement of this Constitution shall be made as soon as possible after the first sitting of the Senate under this Constitution. [Sub-s. (3) substituted by s. 7 of Act 13 of 1994.]
(4) 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 the Supreme Court of South Africa; or (b)is qualified to be admitted as an advocate and has, for a cumulative period of at least 10 years after having so qualified-
i. practised as an advocate or an attorney; or
ii. lectured in law at a university; or
b. has specialised knowledge of or experience for a period of at least 10 years in the administration of justice, public administration or public finance.
(5) Unless the new constitutional text provides otherwise, the Public Protector shall hold office for a period of seven years.
(6) The remuneration and other terms and conditions of employment of the Public Protector shall be as prescribed by or under an Act of Parliament, and such remuneration shall not be reduced, nor shall such terms and conditions be adversely altered, during his or her term of office.
(7) The Public Protector shall not perform remunerative work outside his or her official duties.
(8) The Public Protector may be removed from office by the President, but only on the grounds of misbehaviour, incapacity or incompetence, determined by a joint committee of the Houses of Parliament, composed as provided in subsection (2) (a), and upon receipt of an address from both the National Assembly and the Senate requesting such removal.
(9) A Public Protector who is the subject of an investigation by a joint committee in terms of subsection (8), may be suspended by the President pending a decision in such investigation.
111 Independence and impartiality
(1) The Public Protector shall be independent and impartial and shall exercise and perform his or her powers and functions subject only to this Constitution and the law.
(2) The Public Protector and the persons appointed in terms of section 113 (1) shall have such immunities and privileges as may be assigned to them by or under an Act of Parliament for the purpose of ensuring the independent and impartial exercise and performance of their powers and functions.
(3) No organ of state and no member or employee of an organ of state nor any other person shall interfere with the Public Protector or a person appointed under section 113 in the exercise and performance of his or her powers and functions.
(4) All organs of state shall accord such assistance as may be reasonably required for the protection of the independence, impartiality, dignity and effectiveness of the Public Protector in the exercise and performance of his or her powers and functions.
112 Powers and functions
(1) The Public Protector shall, in addition to any powers and functions assigned to him or her by any law, 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;
ii. abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function;
iii. improper or dishonest act, or omission or corruption, with respect to public money;
iv. improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function; or
v. act or omission by a person in the employ of government at any level, or a person performing a public function, which results in unlawful or improper prejudice to any other person;
b. to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by-
i. mediation, conciliation or negotiation;
ii. advising, where necessary, any complainant regarding appropriate remedies; or
iii. any other means that may be expedient in the circumstances;
or
c. at any time prior to, during or after an investigation
i. if he or she is of the opinion that the facts disclose the commission of an offence by any person, to bring the matter to the notice of the relevant authority charged with prosecutions; or
ii. if he or she deems it advisable, to refer any matter which has a bearing on an investigation, to the appropriate public body or authority affected by it or to make an appropriate recommendation regarding the redress of the prejudice resulting therefrom or make any other appropriate recommendation he or she deems expedient to the affected public body or authority.
(2) Nothing in subsection (1) shall be construed as empowering the Public Protector to investigate the performance of judicial functions by any court of law.
(3) The Public Protector shall conduct an investigation under subsection (1) with due regard to the circumstances of each case, and shall for the purposes of such investigation, in addition to such powers as may be prescribed by law, but subject to the provisions of this Constitution and the law of privilege, be competent to-
a. direct any person 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, in the opinion of the Public Protector, has a bearing on the matter being inquired into, and may examine such person for that purpose; and
b. 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 seize anything on those premises which in his or her opinion has a bearing on the purpose of the investigation.
(4) 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 which in the course of his or her investigation has come to his or her knowledge.
(5) Recourse to, or the exercise and performance of any powers and functions of, the Public Protector shall not oust the jurisdiction of a court of law to hear any matter or cause whatsoever.
(6) The Public Protector shall report in writing on his or her activities to Parliament at least once every year.
113 Staff and expenditure
(1) The Public Protector may appoint, on such terms and conditions of service as may be determined by or under a law, such persons as may be necessary for the discharge of the work of the office of the Public Protector.
(2) The Public Protector may delegate any of his or her powers or functions to persons referred to in subsection (1) subject to such conditions as may be determined by or under a law.
(3) Expenditure incidental to the exercise and performance of the powers and functions of the Public Protector in terms of this Constitution or under any other law shall be defrayed from money appropriated by Parliament.
114 Provincial public protectors
(1) A provincial legislature may, subject to subsections (2) and (3), by law provide for the establishment, appointment, powers and functions of a provincial public protector and for matters in connection therewith.
(2) A provincial law referred to in subsection (1) shall not in any way derogate from the powers and functions of the Public Protector.
(3) A provincial public protector shall be appointed by the Premier of a province in consultation with the Public Protector, provided that the appointment shall be confirmed by resolution of a majority of at least two-thirds of all the members of the provincial legislature.
(4) A provincial public protector shall exercise and perform his or her powers and functions in consultation with the Public Protector, who shall have concurrent jurisdiction in the provinces.
Human Rights Commission
115 Establishment and appointments
(1) There shall be a Human Rights Commission, which shall consist of a chairperson and 10 members who are fit and proper persons, South African citizens and broadly representative of the South African community.
(2) The members of the Commission shall be appointed as provided in subsection (3) and vacancies in the Commission shall be filled accordingly.
(3) The President shall, whenever it becomes necessary, appoint as a member of the Commission a person
a. nominated by a joint committee of the Houses of Parliament composed of one member of each party represented in Parliament and willing to participate in the committee; and
b. approved by the National Assembly and the Senate by a resolution adopted by a majority of at least 75 per cent of the members present and voting at a joint meeting:
Provided that if any nomination is not approved as required in paragraph (b), the joint committee shall nominate another person.
(4) The first members of the Commission after the commencement of this Constitution, shall be appointed as soon as possible after the first sitting of the Senate under this Constitution. [Sub-s. (4) substituted by s. 8 of Act 13 of 1994.]
(5) A Chairperson and a Deputy Chairperson of the Commission shall as often as it becomes necessary be elected by the members of the Commission from among their number.
116 Powers and functions
(1) The Commission shall, in addition to any powers and functions assigned to it by law, be competent and be obliged to-
a. promote the observance of, respect for and the protection of fundamental rights;
b. develop an awareness of fundamental rights among all people of the Republic;
c. make recommendations to organs of state at all levels of government where it considers such action advisable for the adoption of progressive measures for the promotion of fundamental rights within the framework of the law and this Constitution, as well as appropriate measures for the further observance of such rights;
d. undertake such studies for report on or relating to fundamental rights as it considers advisable in the performance of its functions; and
e. request any organ of state to supply it with information on any legislative or executive measures adopted by it relating to fundamental rights.
(2) If the Commission is of the opinion that any proposed legislation might be contrary to Chapter 3 or to norms of international human rights law which form part of South African law or to other relevant norms of international law, it shall immediately report that fact to the relevant legislature.
(3) The Commission shall be competent to investigate on its own initiative or on receipt of a complaint, any alleged violation of fundamental rights, and if, after due investigation, the Commission is of the opinion that there is substance in any complaint made to it, it shall, in so far as it is able to do so, assist the complainant and other persons adversely affected thereby, to secure redress, and where it is necessary for that purpose to do so, it may arrange for or provide financial assistance to enable proceedings to be taken to a competent court for the necessary relief or may direct a complainant to an appropriate forum.
117 Staff and expenditure
(1) The Commission shall appoint a director, who shall be the chief executive officer of the Commission and who shall be empowered to appoint staff subject to the approval of the Commission and on such terms and conditions of service as may be determined by or under an Act of Parliament.
(2) Expenditure incidental to the exercise and performance of the powers and functions of the Commission in terms of this Constitution or any other law shall be defrayed from money appropriated by Parliament.
118 Reports
The Commission shall report to the President at least once every year on its activities, and the President shall cause such report to be tabled promptly in the National Assembly and the Senate.
Commission on Gender Equality
119 Establishment
(1) There shall be a Commission on Gender Equality, which shall consist of a chairperson and such number of members as may be determined by an Act of Parliament.
(2) The Commission shall consist of persons who are fit and proper for appointment, South African citizens and broadly representative of the South African community.
(3) The object of the Commission shall be to promote gender equality and to advise and to make recommendations to Parliament or any other legislature with regard to any laws or proposed legislation which affects gender equality and the status of women.
120 Composition and functioning
The Act of Parliament referred to in section 119 shall provide for the composition, powers, functions and functioning of the Commission on Gender Equality and for all other matters in connection therewith. [S. 120 amended by s. 9 of Act 13 of 1994.]
Restitution of Land Rights
121 Claims
(1) An Act of Parliament shall provide for matters relating to the restitution of land rights, as envisaged in this section and in sections 122 and 123.
(2) A person or a community shall be entitled to claim restitution of a right in land from the state if-
a. such person or community was dispossessed of such right at any time after a date to be fixed by the Act referred to in subsection (1); and
b. such dispossession was effected under or for the purpose of furthering the object of a law which would have been inconsistent with the prohibition of racial discrimination contained in section 8(2), had that section been in operation at the time of such dispossession.
(3) The date fixed by virtue of subsection (2) (a) shall not be a date earlier than 19 June 1913.
(4)
a. The provisions of this section shall not apply to any rights in land expropriated under the Expropriation Act, 1975 (Act 63 of 1975), or any other law incorporating by reference that Act, or the provisions of that Act with regard to compensation, if just and equitable compensation as contemplated in section 123 (4) was paid in respect of such expropriation.
b. In this section 'Expropriation Act, 1975' shall include any expropriation law repealed by that Act.
(5) No claim under this section shall be lodged before the passing of the Act contemplated in subsection (1).
(6) Any claims under subsection (2) shall be subject to such conditions, limitations and exclusions as may be prescribed by such Act, and shall not be justiciable by a court of law unless the claim has been dealt with in terms of section 122 by the Commission established by that section.
122 Commission
(1) The Act contemplated in section 121 (1) shall establish a Commission on Restitution of Land Rights, which shall be competent to-
a. investigate the merits of any claims;
b. mediate and settle disputes arising from such claims;
c. draw up reports on unsettled claims for submission as evidence to a court of law and to present any other relevant evidence to the court; and
d. exercise and perform any such other powers and functions as may be provided for in the said Act.
(2) The procedures to be followed for dealing with claims in terms of this section shall be as prescribed by or under the said Act.
123 Court Orders
(1) Where a claim contemplated in section 121 (2) is lodged with a court of law and the land in question is-
a. in the possession of the state and the state certifies that the restoration of the right in question is feasible, the court may, subject to subsection (4), order the state to restore the relevant right to the claimant; or
b. in the possession of a private owner and the state certifies that the acquisition of such land by the state is feasible, the court may, subject to subsection (4), order the state to purchase or expropriate such land and restore the relevant right to the claimant.
(2) The court shall not issue an order under subsection (1) (b) unless it is just and equitable to do so, taking into account all relevant factors, including the history of the dispossession, the hardship caused, the use to which the property is being put, the history of its acquisition by the owner, the interests of the owner and others affected by any expropriation, and the interests of the dispossessed: Provided that any expropriation under subsection (1) (b) shall be subject to the payment of compensation calculated in the manner provided for in section 28 (3).
(3) If the state certifies that any restoration in terms of subsection (1) (a) or any acquisition in terms of subsection (1) (b) is not feasible, or if the claimant instead of the restoration of the right prefers alternative relief, the court may, subject to subsection (4), order the state, in lieu of the restoration of the said right-
a. to grant the claimant an appropriate right in available alternative state-owned land designated by the state to the satisfaction of the court, provided that the state certifies that it is feasible to designate alternative state-owned land;
b. to pay the claimant compensation; or
c. to grant the claimant any alternative relief.
(4)
a. The compensation referred to in subsection (3) shall be determined by the court as being just and equitable, taking into account the circumstances which prevailed at the time of the dispossession and all such other factors as may be prescribed by the Act referred to in section 121 (1), including any compensation that was paid upon such dispossession.
b. If the court grants the claimant the relief contemplated in subsection (1) or (3), it shall take into account, and, where appropriate, make an order with regard to, any compensation that was paid to the claimant upon the dispossession of the right in question.