Public Protector Act, 1994 (Act No. 23 of 1994)7. Investigation by Public Protector |
(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. |
[Section 7(1) substituted by section 9(a) of Act No. 113 of 1998]
| (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, the Deputy Public Protector or a person contemplated in subsection (3)(b) during an investigation, unless the Public Protector determines otherwise. |
[Section 7(2) substituted by section 8(a) of Act No. 22 of 2003]
(3)
| (a) | The Public Protector may, at any time prior to or during an investigation, request any person— |
| (i) | at any level of government, subject to any law governing the terms and conditions of employment of such person; |
| (ii) | performing a public function, subject to any law governing the terms and conditions of the appointment of such person; or |
| (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 76 of the Public Finance Management Act, 1999 (Act 1 of 1999), in respect of Commissions of Inquiry, shall apply with the necessary changes in respect of that person. |
[Section 7(3)(ii) substituted by section 8(b) of Act No. 22 of 2003]
[Section 7(3)(b) substituted by section 9(b) of Act No. 113 of 1998]
(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. |
[Section 7(7) substituted by section 9(c) of Act No. 113 of 1998]
| (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. |
[Section 7(9) substituted by section 9(d) of Act No. 113 of 1998]
| (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. |
[Section 7(11) inserted by section 9(e) of Act No. 113 of 1998]