In the interest of debate and free information, I have decided to release this working draft of my unpublished paper. Please note that this is an unedited working draft. It is quite likely that you will spot typos and similar errors. All comments are welcome. Email Brad Cibane.
“Advocate Thuli Madonsela, the Public Protector, was wrong about the breadth of her powers. Her proposals for remedial action are not binding on organs of state. That, however, does not mean organs of state can simply ignore her proposals. They can reject proposals provided: (a) they communicate the rejection to the Office of the Public Protector, and (b) the decision to reject the proposal is rational. The President may validly reject the proposal that he should pay back the money for two reasons. First, there is little factual support for the conclusion that the President failed to act to protect state resources. Second, the constitutional and legislative framework devolves responsibilities among Cabinet Members and department officials. There is thus no legal support for the view that the President bears ultimate (personal) liability for the conduct of government officials, even where he benefits personally. To be liable, the President must be personally responsible for the wrongdoing.” Cibane (pdf)
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