The Public Protector v Mail & Guardian Ltd and Others

Following investigative articles by the Mail & Guardian newspaper in 2005 exposing alleged diversion of public funds in the so‑called ‘Oilgate’ scandal, members of Parliament requested the Public Protector to investigate. The Public Protector conducted an investigation and issued a report exonerating public entities and officials, while discrediting much of the newspaper’s reporting as inaccurate and unsubstantiated. Mail & Guardian Ltd, its editor, and the journalists involved brought review proceedings in the North Gauteng High Court, challenging the adequacy, scope, and fairness of the investigation and report, and seeking to have it set aside.

Paragraphs 2 and 3 of the High Court’s order were set aside; otherwise the appeal was dismissed with costs.

This case is a leading authority on the constitutional role, duties, and reviewability of the Public Protector. It clarifies that the Public Protector must conduct investigations proactively, thoroughly, and with an open and enquiring mind, and that failure to do so renders a report susceptible to judicial review. The judgment reinforces standards of accountability for Chapter 9 institutions and affirms media entities’ standing to challenge reports that adversely affect their reputation.