South African Chapter 9 Institutions: Are Their Decisions Binding After All?

Abstract

Chapter 9 of the South African Constitution of 1996 makes provision for six institutions, amongst them, the Office of the Public Protector, such that each would, in some prescribed ways, support the constitutional democracy ushered in, with effect from 1994 in South Africa. This article addresses the issue of whether recent case law developments for the institutions to date assist in determining the binding effect of their decisions. The need to investigate how exactly the institutions’ decisions are to be construed by affected parties and what the implications of the pertinent judgments examined in this paper are, to the rest of the Chapter 9 institutions’ decisions, overwhelmingly beckons. The documentary research method was assumed to be the most appropriate research vehicle for this kind of study. The paper analyses a sample of relevant judgments of South African courts and enabling national legislation for each of the six Chapter 9 institutions. The analysis concludes that a Chapter 9 institution’s decision is provisionally binding to the affected party(ies), until otherwise determined: through interactions between the investigating Chapter 9 institution and the affected party(ies), or by the institution alone, where appropriate, or else through a law court review. Crucially, a “recommendation” is reasonably construed as also “appropriate remedial action.”