BackSpeech by Public Protector, Adv. Kholeka Gcaleka:
"My journey in the legal profession has been both rewarding and challenging. From the early days of law school to the rigors of practice, each step has taught me invaluable lessons. Prior to having the privilege to be part of and head the Public Protector South Africa (PPSA), my career included various areas of legal practice. This included positions at the National Prosecuting Authority from a Specialist Prosecutor to Executive Management Level the level of Senior Deputy Director of Public Prosecutions, which included providing coherent training and development programmes, as well as Special Advisor to Ministers in the South Africa for crucial South African departments, focusing on administration, legal affairs, legislation, policy development, strategy, compliance, and governance.
Having spent a significant part of my career in legal practice, including a strong knowledge understanding and experience in litigation, has exposed me for the complexity of the legal structures. I learned the importance of diligence, attention to detail, and the ability to think critically under pressure. These skills are not only essential for success in the legal field but also for personal growth and development.
More than anything else, my experience and exposure made me aware of the significant transformative power of the law. Our constitutional democracy is anchored in belief in importance of the rule of law and democracy in ensuring sustainable peace.
Archbishop Desmond Tutu once said: “The rule of law matters to all of us, to the entire human family….Strengthening the rule of law is an essential ingredient to enhance justice, peace and economic and social progress. It underpins functional societies and drives development.”
It is for this reason that I believe that social justice, human solidarity and accountability have to be promoted by the law if it is to meaningfully foster peace.
The constitutional preamble clearly promotes human solidarity and social justice. It promises to “Improve the quality of life of all citizens and free the potential of every person”.
But we also know that laws on their own do not change lives. They need to be honestly and consistently implemented make the difference they were made to make. In this regard it is important that the majority of citizens or residents ethically comply with the laws and that when that fails, those affected by the failure know their rights and have access to credible institutions to address alleged injustices or wrongs.
The architects of our democracy and other modern democracies were alive to obstacles in the access to justice. In this regard Alternative or Appropriate Dispute Resolution (ADR) Structures have become part of the modern state. ADR structures are critical, particularly for access to justice for the poor. In South Africa such structures include the Commission for Conciliation Mediation and arbitration, which handles employment and labour law disputes. Small Claims Courts are equally critical for the poor as an avenue for civil dispute involving small amounts of money.
The question of access to justice and accountability for state wrongs is particularly important in the complex modern state. In the face of large powerful and often oppressive or indifferent bureaucracies, the traditional checks and balances for accountability are not enough
The role of the Public Protector
Recognising that relying solely on traditional institutions like the legislature, courts, and tribunals was insufficient to ensure adherence to the Constitution and good governance, Chapter 9 of the Constitution established various institutions to protect and promote the rights of specific groups in South Africa. Each institution has a specific mandate, including the Auditor-General, the Commission for the Promotion and Protection of Cultural, Religious and Linguistic Communities (along with the Pan South African Language Board), the Commission for Gender Equality, the Human Rights Commission, and the Public Protector. These are collectively known as Institutions Supporting Constitutional Democracy.
The Public Protector functions as an intermediary between citizens and the government, seeking to reestablish dialogue when communication breaks down between the public and those in governmental power. In this role, the Public Protector is an essential component of constitutional democracy, enabling citizens, who genuinely hold public power and resources, to hold their leaders accountable when traditional channels of public accountability are inadequate or obstructed. This accountability frequently involves resolving service failures that impact constitutional rights.
On 1 October 1995, the PPSA opened its doors to the public for the first time. Meanwhile, work was underway to finalise the Constitution that is in force today.
The Public Protector is established in terms of section 181 of that Constitution, which celebrates, this year, 29 years of being in force, as an independent institution that is only subject to the Constitution and the law; is impartial and must exercise its powers and perform its functions without fear, favour or prejudice.
The office draws its investigative, reporting and remedial powers from section 182 of the Constitution and has additional powers and functions as regulated by National Legislation such as the Public Protector Act, the Executive Members Ethics Act, the Prevention and Combatting of Corrupt Activities Act and the Protected Disclosures Act, among others. The 16 statutes legislation that seek to give effect to Section 182 (2) of the Constitution, has expanded the Public Protector’s mandate significantly. From this legal framework, you will note that we have a very broad jurisdiction, which covers “all state affairs”, the “public administration” and “all spheres of government”. Expressly, excluded from this ambit are “court decisions”.
In terms of Section 182(1) of the South African Constitution of 1996, the Public Protector is vested with the powers to investigate the conduct of government, government departments, government agencies, government officials and bodies performing public functions that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial. The Public Protector my not investigate decisions of a Court of Law and must be accessible to all persons and communities.
The Public Protector Act expands the oversight powers of the Public Protector to include resolving administrative disputes through Appropriate Dispute Resolution measures such as conciliation, mediation, negotiation and any other means deemed appropriate by the Public Protector.
The Nkandla judgment, officially titled the EFF v Speaker of the National Assembly case, brought to light a crucial issue concerning access to justice and the financial obstacles faced by ordinary citizens. The Constitutional Court recognized that litigation is often primarily available to those who can afford legal representation. This situation creates a significant imbalance, as the average person may find it difficult to pay for lawyer fees needed to challenge the state in court, even when they have been wronged by the system. In contrast, the state has substantial financial resources to defend its actions, whether or not they are reasonable or just. This highlights the necessity for mechanisms that ensure equitable access to justice for everyone, regardless of their financial situation.
The court saw the Public Protector as an ideal institution to bridge that gap. Then Chief Justice, Mogoeng Mogoeng explained as follows: “The Public Protector is ... one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.
Having been expose to the highs and the lows of the demands and challenges of the position of the Public Protector I fully understand and embrace the privilege and opportunity to make a difference in the lives of citizens impacted by deep structural challenges of inequality, poverty and food insecurity, youth unemployment as well as the cancer of corruption. I have experienced and seen in practice, in the eyes of our people through stakeholder engagements, how governance failures and corruption weaken government’s ability to deliver services, reduce social mobility and aggravate inequalities.
The turbulent waters through which the leadership of the PPSA under my direction had to navigate and steer the institution in recent times of crisis has only served to strengthen our commitment and resolve to contribute at the highest possible extent the stability, authority, impartiality, independence and legitimacy of the Institution.
Navigating the Difficulties
The legal profession is recognized for its challenging nature. Extended hours, intricate cases, and elevated expectations can be daunting. Here are some recommendations to help you handle these challenges:
Resilience:
Develop a strong sense of resilience. There will be setbacks and difficult moments, but your ability to bounce back and learn from these experiences will define your career.
Mentorship:
Seek out mentors who can provide guidance and support. Their insights and experiences can help you navigate the complexities of the profession.
Work-Life Balance:
Strive for a healthy work-life balance. While dedication to your career is important, taking care of your mental and physical well-being is equally crucial.
Continuous Learning:
The legal field is constantly evolving. Stay updated with the latest developments and continue to expand your knowledge through courses, seminars, and reading.
Looking Beyond Traditional Routes
While the traditional routes of articles and pupillage are well-trodden paths, as law students in South Africa, you have a wealth of career opportunities available to you.
Articles of Clerkship is a common path where law graduates work as candidate attorneys under the supervision of experienced attorneys. It provides practical training and is a prerequisite for admission as an attorney.
For those aspiring to become advocates, pupillage involves a year of training under the guidance of a senior advocate. This route focuses on courtroom advocacy and litigation skills.
While articles and pupillage are traditional pathways into the legal profession, it is essential to consider alternative routes that can be equally fulfilling and impactful. One such path is participating in civil service, particularly within the National Prosecuting Authority (NPA). Working with the NPA allows you to serve the public and uphold justice. Prosecutors play a vital role in the criminal justice system, ensuring that justice is served fairly and efficiently.
The NPA offers a wide range of cases, from high-profile criminal prosecutions to public interest litigation. This diversity can significantly broaden your legal expertise and experience. The NPA provides opportunities for continuous learning and professional development. You will work alongside experienced prosecutors and gain invaluable courtroom experience.
Participating in other Civil Service Roles aligns with the ethical principles of the legal profession. It allows you to contribute to the rule of law and protect the rights of individuals.
Other Roles include:
- Representing individuals who cannot afford private legal representation as a Public Defender. This role is crucial in ensuring access to justice for all.
- Providing legal counsel to various government departments as a Legal or State Law Advisor, helping shape policies and regulations.
- Working with NGOs and other organizations focused on human rights, or ISDs such as the Public Protector, offering legal support and advocacy for vulnerable populations.
These roles not only provide diverse experiences and professional growth but also allow you to make a meaningful difference in society. As you embark on your legal careers, consider the broader spectrum of opportunities available to you and find the path that aligns with your passion and values.
In the corporate field, legal advisors provide legal counsel to corporations, ensuring compliance with laws and regulations, and advising on corporate governance, contracts, and mergers and acquisitions. This role is crucial for navigating the complex legal landscape of the corporate world and ensuring that the company operates within the legal framework.
Compliance officers ensure that companies adhere to internal policies and external regulations. They play a key role in risk management and regulatory compliance. With increasing regulatory scrutiny, the role of compliance officers is vital in preventing legal issues and maintaining the company’s reputation.
Conclusion
As you prepare to enter the legal profession, remember that your journey is unique. Embrace the challenges, seek out diverse experiences, and remain committed to the principles of justice and integrity. Whether you choose the traditional path or explore alternative routes such as civil service, your contributions will shape the future of the legal field.
Congratulations, Class of 2024. I wish you all the best in your future endeavours! Together we can do our best to be better."
Source: The Office of the Public Protector of South Africa
