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 Ouster Clauses, Judicial Review and the Botswana Ombudsman: A Need Reform?
Tebogo Titose Mapodisi*

ABSTRACT
The role of the Ombudsman is to ensure that the government fulfils its legal obligations to
provide services to the citizenry as required by set laws and policies. The Ombudsman
achieves this role through education, investigation of reports of violation of set laws and
policies and by facilitating the implementation of recommended remedial action where
injustices are found to have occurred.It is not disputable that the Ombudsman plays a pivotal
role in supporting democracy in any given country. The existence of the Ombudsman
institution has however brought with it issues which continue to be debated globally. One of
such issues is whether the courts of law can subject Ombudsman decisions to judicial review
where one of the parties to an investigated matter is aggrieved by such a decision. Some
countries have legislated to bar the courts from reviewing decisions of their Ombudsman
offices through ouster clauses. Some countries do not have such clauses which purport to
oust the courts from reviewing ombudsman decisions and indeed they have cases in which
decisions of the Ombudsman was reviewed by the courts of law. This article asserts that
courts of law have original inherent jurisdiction to review ombudsman decisions. There is
case law to the effect that the courts will review the decision of any legally constituted body
despite the existence of an ouster clause in the legislation establishing such a body. Courts
have established that they will review the decisions of any statutory on four grounds being:
informality of procedure, ultra vires, misuse of power bona fide and misuse of power mala
fide. This article concludes with a call for the amendment of the Botswana Ombudsman Act
particularlyto repeal the ouster clause in Section 9 (1) of the Ombudsman Act. The clause is
a waste of the legislature'sink as it cannot deter the Courtsfrom reviewing a decision of the
Ombudsman.

1. INTRODUCTION
The subjection of ombudsman decisions to judicial review is a contested issue in ombudsman
circles. In some countries around the world, ombudsman decisions have been exposed to
judicial review. The United Kingdom (UK) and South Africa are such examples. 1 The UK
and South Africa are chosen as case studies because they are commonwealth member states
just as Botswana is. In the UK, the decision of the Ombudsman was challenged in R v
Commissioner for Local Administration, ex parte Croydon London Borough Council and
Another 2 while in South Africa, the decision of the Ombudsman was challenged in M & G
3
Media Limited and Others v Public Protector.
On the flip side, it is undoubtedly desirable to some within ombudsman circles that
that court process should be excluded completely from the Ombudsman proceedings.
Botswana is such an example. The Parliament of Botswana has included an ouster clause in
the Ombudsman Act, to prevent judicial review of ombudsman decisions. Section 9 (1) of the
Ombudsman Act 4 provides that ombudsman proceedings shall not be questioned in a court of
law. Currently, there has never been a case before the Courts of Botswana in which the
applicant sought judicial review of a decision taken by the Ombudsman.
This article studies the legislation which establishes the Ombudsman institutions in
the UK and South Africa. The article assesses whether such statutes have provisions which
deliberately allow judicial review of ombudsman decisions. If there are no such provisions,
the basis upon which the mentioned cases were brought before the courts will be investigated.
This article further anticipates how Botswana courts will react if a decision of the
Ombudsman's was to be challenged in a court of law. The anticipation is premised on cases
involving statutes which have ouster clauses which have been adjudicated before the High
Court of Botswana previously.
The subjection of ombudsman decisions to judicial review has been suggested as one
of the ways of evaluating the performance of any ombudsman office. In that regard, this
article will finally assesses whether judicial review, based on the cases that will be studied,
can be endorsed as a performance tool for ombudsman offices. The findings will be used in
analysing whether the statutory exclusion of judicial review of Ombudsman proceedings in
Botswana is proper and if it is found not to be proper, to investigate whether there is need for
legislative reform in that regard.

1 Reference may be heard to the decision of the Constitutional Court in South Africa on the legal effects of the
power of the public protector and confirming reviewability of decisions of the Public Protector in Economic
Freedom Fightersv Speaker of the NationalAssembly and Others; DemocraticAlliance v Speaker of the
NationalAssembly and Others [2016] ZACC 11.
2 [1989] 1 ALL ER 1033.
3 [2010] 1 All SA 32 (GNP).
4 (Cap 02:12) (Act No. 5 of 1995).
2. DEFINITION OF THE OMBUDSMAN
The Ombudsman has been defined as "an office provided for by the constitution or by action
of the legislature or parliament and headed by an independent, high - level public official who
is responsible to the legislature or parliament, who receives complaints from aggrieved
persons against government agencies, officials and employees and who acts on his own
motion, and who has the power to investigate, recommend corrective action and issue
reports. 5
The by - laws of the International Ombudsman define the term "ombudsman" in a
way that incorporates the distinctive features of the institution. They define the Ombudsman
as:
"The office of a person whether titled Ombudsman, Parliamentary Commissioner or like

designation who has been appointed or elected pursuant to an Act of a legislature and
whose role includes the following characteristics:
1) To investigate grievances of any person or body of persons concerning any decision
or recommendation made, or any act done or omitted, relating to a matter of
administration, by an officer, employee or member or committee of members of any
organization over which jurisdiction exists;
2) To investigate complaints against government and semi government departments and
agencies;
3) A responsibility to make recommendations resulting from investigations to
organizations under jurisdiction;
4) To discharge the role and functions of an officer of the legislature or on behalf of the
legislature in a role which is independent of the organizations over which jurisdiction
is held;
5) To report to the legislature either directly or through a Minister on the results of its
operations or on any specific matters resulting from an investigation." 6
Further, according to Caiden, et al.:
"The Ombudsman is not a judge or a tribunal, and he has no power to make orders or
to reverse administrative action. He seeks solutions to problems by a process of
investigation and conciliation. His authority and influence derive from the fact that he

5 International Bar Association Resolution, Vancouver, 1974.

6 International Ombudsman Institute, Membership By-laws (International Ombudsman Institute), Edmonton,

Alberta, 1978.
 is appointed by and reports to one of the principal organs of state, usually either
7
parliament or the chief executive.",
Although the word "ombudsman" has been widely used by legislators and adopted in
many countries as a title for the person who carries out the duties of ombudsman office or
heads such office, numerous other titles and designations are used to express the
characteristic of the institution and the role it plays. For example, the Ombudsman in Spain
and other Spanish speaking countries like Argentina, Columbia and Peru is called "Defensor
del Pueblo (the people's defender)"; in South Africa it is the "Public Protector"; in Hungary,
it is the "Parliamentary Commissioner for Human Rights"; in Russia it is the "High
Commissioner for Human Rights"; in Poland it is the "Commissioner for Civil Rights
Protection"; in Ghana it is the "Commissioner for Human Rights and Administrative Justice";
in France and some French speaking countries such as Mauritania, Senegal and Gabon it is
"Mediateur de la Republique"; in Zambia it is the "Inspector General"; in Tanzania where it
is called the "Permanent Commission of Inquiry"; in Western Australia and Queensland it is
the "Parliamentary Commissioner for Administrative Investigations" and some countries
have chosen names that are unique only to them, for example, in Taiwan, it is "Control
Yuan"; in Pakistan it is "wafaqi Mohtsasib" and in New Zealand the Maori term is "the
Kaitiaki Mana Tangana". 9
The functions of the Ombudsman remain the same despite the use of different titles to
denote the office. Article 3 of International Ombudsman Institution (101) Constitution
provides that:
"A public institution whether titled Ombudsman, Mediator, Parliamentary Commissioner,
People's Defender, Human Rights Commission, Public Complaints Commission,
Inspector General of Government, Public Protector or like designation, shall be eligible to
become an Institutional member provided it exercises fully the following functions and
meets the following criteria: it is created by enactment of a legislative body whether or
not it is also provided for in a Constitution; its role is to protect any person or body of
persons against maladministration, violation of rights, unfairness, abuse, corruption, or

7 G. E. Caiden, et al., "The institution of the Ombudsman" in G. E. Caiden (ed), InternationalHandbook of the
Ombudsman: Evolution and Present Function (1983), London, Greenwood Press, (1983), England, p. 13.
8 R. Gregory and P. Giddings (eds) "The Ombudsman Institution: Growth and development" in Righting
Wrongs, Amsterdam, IOS Press, 1981), pp. 4-5.
9 Ibid.
 any injustice caused by a public authority; it does not receive any direction from any
public authority which would compromise its independence and performs its functions
independently of any public authority over which jurisdiction is held; it has the necessary
powers to investigate complaints by any person or body of persons who considers that an
act done or omitted, or any decision, advice or recommendation made by any public
authority within its jurisdiction has resulted in maladministration and violation of rights;
it has the power to make recommendations in order to remedy or to prevent
maladministration and violation of rights ; and, where appropriate, to propose
administrative or legislative reforms for better governance; it is held accountable by
reporting publicly to the legislature or other appropriate authority; its jurisdiction is
national, regional or local; its jurisdiction applies to public authorities generally or is
limited to one or several public authorities, or to one or several public sectors; and its
incumbent or incumbents are appointed or elected, according to the relevant legislative
enactment, for a defined period and can only be dismissed, for cause, by the legitimate
10
and competent authorities."

3. THE ROLE OF THE OMBUDSMAN INSTITUTION

The Ombudsman has a twofold function, a dichotomy that has been referred to as redress and
control.11

3.1 Redress function

The Ombudsman process is a form of alternative dispute resolution (ADR) for conflicts
between government administration and the public.12 After a complaint has been made, an
impartial investigation takes place and the Ombudsman does not uphold a complaint or
dismiss it for lack of merit- until the investigation process has been completed.1 3 After
conclusion of an investigation, if the Ombudsman has taken the position that improper
administration has occurred and has made recommendations for changes in law or practice to
the government, the Ombudsman may enter into informal negotiations or mediation with the

10 Article 6: Membership, Sub-section b) Institutional member. Available at

http://www.law.ualberta.ca/centres/ioi/docs/1O1 Bvlawsydf.
11M. Seneviratne, Ombudsmen: Public Services andAdministrative Justice, London, Butterworths, (2002), pp.
17.
12 L. C. Reif, The Ombudsman, Good Governance and InternationalHuman Rights System Leiden, Martinus
Nijhoff Publishers, (2004), p. 16.
13 Ibid.
government department concerned to persuade the government to accept and implement his
negotiations. 14
It should be understood that the Ombudsman has a broader mandate and stronger
powers than those of simple ADR providers in that the special distinctive ADR technique
employed by the Ombudsman is not only investigation but a unique combination of
investigation, judgment and recommendation, coupled sometimes with mediation and
negotiation. 15
The Ombudsman mechanism is distinctive from formal ADR in that ombudsmen can
initiate own motion investigations. Such power is usually legislated and it rests on the
discretion of the Ombudsman. For example, through information gleaned from the media, the
Ombudsman may decide to launch an own motion investigation. This unique feature of the
Ombudsman institution allows protection of members of the society who, despite being
wronged, would never have used the office due to unawareness of its existence or due to
special circumstances, for example, children, minorities, the illiterate, and other
underprivileged people. Other administrative justice mechanisms depend on people to lodge
complaints or cases, without which they cannot address any injustice.
Another distinctive feature of the Ombudsman is the use of systemic investigations.
Through information gleaned from investigation of numerous complaints, all alleging the
same administrative problem, the Ombudsman may see a pattern of government conduct
indicating that there is a malfunction in government administration.16 In response, the
Ombudsman may launch a systemic investigation. At the end of the investigation, if systemic
break down or weakness is found, recommendations to terminate the wider dysfunction are
made.1 7 If the recommendations are implemented, numerous future individual complaints
about the dysfunction are avoided. Thus systemic investigations are a form of preventative
medicine for the public administrative system and are of collective benefit for many users of
the system. Other administrative justice mechanisms can only resolve individual complaints
18
or cases lodged before them.

14 Op Cit note 12.

15 Ibid.
16 Op Cit note 12, p. 17.
17 Ibid.
1 Op Cit note, p. 15.
 The Ombudsman usually succeeds in producing results reasonably quicker than the
courts.19 An ombudsman scheme is essentially informal and non-adversarial in its mode of
operation, and therefore is readily accessible to complainants, easy to understand, easy for
them to set in motion. It operates relatively cheap so far as agencies subject to
investigations are concerned and its services are free to complainants. Courts on the other
hand, are expensive, time consuming and have complicated procedures. Remedies are not
granted in many court cases because courts are concerned with questions of legality but the
fact that public officials have not acted contrary to the law does not mean that they have
adhered to the widely accepted principles of good administration and ad administration is not
always unlawful.22
Ombudsman decisions are not binding. Paradoxically, the non-binding nature of
decisions is strength rather than a weakness. 23 Stephen Owen states that:
"It may be that this inability to force change represents the central strength of the
office and not its weakness. It requires that recommendations must be based on a thorough
investigation of facts, scrupulous consideration of all perspectives and vigorous analysis of
all issues. Through this application of reason, the results are infinitely more powerful than
through the application of coercion. While a coercive process may cause reluctant change in a
single decision or action, by definition it creates a loser who will be unlikely to embrace the
recommendations in future actions. By contrast, where change results from a reasoning
process, it changes a way of thinking and the result endures to the benefit of potential
complaints in the future. If genuine change is to take place as a result of ombudsman action,
the office must earn and maintain the respect of government through its reasonableness.
Without this, it will be at best ignored, and, at worst, ridiculed. 24

Buttressing this point, Gregory and Giddings state that sometimes administrators do
not understand the legalese used by judges in their judgments. 25 It is argued therefore that
practical improvements in administration are best achieved by the unthreatening, non-

19Op Cit note 7, p. 16.

20 Ibid.
21 Op Cit note 19.
22 Ibid.
23 P. Nikiforos Diamandouros, InternationalSeminar on Ombudsman Institutions, Ankara, European
Ombudsman, 2013.
24S. Owen, "The Ombudsman, Essential Elements and Common Challenges" in The Ombudsman: Diversity
and Development, Edmonton, International Ombudsman Institute, (2003).
25Op Cit note 6, p. 16.
confrontational, cooperative approach adopted by ombudsmen who tend to rely as much as
possible on conciliation and persuasion, with the aim of achieving friendly solutions and
settlements. 26
Gregory and Giddings further argue that the political channel for dealing with the
redress of grievances is becoming less attractive to many societies because in many parts of
the world politicians are often accused and convicted of corruption. 27 The Ombudsman has
therefore become a trusted alternative. Gregory and Giddings make reference to countries
where courts have never been the principal mechanism for dealing with maladministration
grievances, where the main channel through which complainants pursue such grievances has
traditionally been the political process, where the elected representatives act as complaint
handling mechanisms. 2 8 It is noted that the drawback of this method is that not all elected
representatives are equally adept or intersected in work of this kind.29 Some will care deeply
about the problems of their constituents, others will find dealing with such matters the least
attractive aspect of their role. 30 In addition, elected representatives may be denied access to
internal files and be unable to question officers. Moreover, if there is a conflict of
judgments not about the facts of a case but about construction to be placed on them, the views
32
of a back bench elected representatives may count for little against those of the executive.
Finally, the partisan structure and orientation of so many legislative assemblies,
functioning as they do on a party political basis, may detract from their effectiveness as
mechanisms through which elected representatives can hope to secure administrative justice
33
for aggrieved constituents.
3.2 Control function
The Ombudsman has been listed among the numerous ways of controlling administrative
power. These are: judicial review, reliance on administrative or political processes,
establishing independent, impartial institutions such as an ombudsman to investigate
34
maladministration, allowing for public participation and guaranteeing access to information.

26 Ibid.
27 Op Cit note 6, p 17.
28 Ibid.
29 Ibid.
30 Ibid.
31 Ibid.
32 Ibid.
33 Ibid.
34 C. Hoexter 'Administrative Law in South Africa, (2 nd ed) Cape Town, Juta, (2012), p. 58.
Ombudsmen exercise a control function by serving as a mechanism for horizontal and
vertical accountability. 3 5 Horizontal accountability has been defined as capacity of state
36
institutions to check abuses by other public agencies and branches of government.
Ombudsmen can be considered to be institutions of horizontal accountability as they improve
legal, constitutional and administrative accountability of government by impartially
investigating the conduct of public administration; recommending changes to law, policy or
practice when illegal or improper administration is uncovered; reporting to the legislature and
37
the public and in some institutions, exercising stronger powers like court action.
Regarding the Ombudsman function as a mechanism for vertical accountability, it has
been stated that ombudsmen permit members of the public to lodge complaints that the
government has acted illegally or unfairly, with the result that the government is subjected to
an impartial investigation of its conduct and may be faced with criticism of its actions or,
depending on the Ombudsman institution, stronger consequences.38
4. OUSTER CLAUSES
The subjection of ombudsman decisions to judicial review is a contested issue in ombudsman
circles. In some countries around the world, ombudsman decisions have been exposed to
judicial review. UK and South Africa are examples. Botswana is an example of countries
which hold a view that courts should not review the decisions of the Ombudsman. The
Parliament of Botswana has included an ouster clause in the Ombudsman Act, to prevent
judicial review of ombudsman decisions. Section 9 (1) of that Act provides that:
"In the discharge of his functions, the Ombudsman shall not be subject to the
direction or control of any other person or authority and no proceedings of the
Ombudsman shall be called in question in any court of law."

The section of the above provision which states that "no proceedings of the
Ombudsman shall be called in question in any court of law" is undoubtedly an ouster clause.
An ouster clause is a provision in an Act of Parliament which purports to make the decision
of a body final by purporting to eliminate the jurisdiction of a competent court to review such

35 Op Cit note 10, pp. 17-18, 60-62.

36 Ibid.
37 Ibid.
31 Ibid.
a decision. Parliament uses these clauses to bring finality to decisions that they wish to be
determined in the way they have laid down.
Ouster clauses exist primarily for practical and procedural reasons. Ouster clauses
protect the integrity of tribunals by separating tribunals from legal processes; they ensure that
courts do not decide on specialised matters; they ensure finality in that decisions of tribunals
ought not to be appealed and reviewed; they prevent unnecessary litigation and
interventionist courts; they ensure efficiency; and finally, they ensure separation of executive
39
and judicial functions.
On the other hand, the existence of clauses in legislation raises complex interpretation
issues. These are issues of: inconsistent Parliamentary intention, Parliamentary sovereignty,
constitutionally conferred jurisdiction, representative democracy, separation of judicial power
and rights of the citizen to access the courts. 40
The concept of inconsistent Parliamentary intention presupposes that ouster clauses create
an inconsistency between one statute provision which seems to limit the powers of the
tribunal and another provision (the ouster clause) which seems to contemplate that the
tribunal's decision shall operate free from restriction. To elaborate this concept, an example
of the Botswana Ombudsman Act will be used.42 Section 9 (1) of this Act suggests that the
Ombudsman shall operate free from restriction. On the other hand there is section 4 which
limits the powers of the Ombudsman to investigate certain matters. The reality is that
Parliament would never have intended that that the Ombudsman should operate free from
restriction but rather that the Ombudsman should operate within set limitations. Thus the
ouster clause in section 9 (1) brings an unnecessary issue of inconsistent Parliamentary
intention in the Ombudsman Act.

With regard to Parliamentary sovereignty, the issue which is created by ouster clauses is
as to what extent courts ought to relinquish their jurisdiction and to what extent they should
give effect to legislative intentions of Parliament. 43 In a lecture in 1994, Lord Woolf, in the
context of a discussion about ouster clauses, said there may be situations in which the courts,

39
D. Mullan,, Toronto, Carswell Publishers, (1979), p. 1. Available at
www.jaani.net/resources/law notes/.. law/13 Privative clauses.pdf
40 Ibid, Chapter 13, pp. 2-3.
2
41 Op Cit note 39, p. .
42 Op Cit note 4.
43 Op Cit note 41.
in upholding the rule of law, may have to "take a stand." In those circumstances, he said,
there were some "advantages in making it clear that ultimately there are even limits on the
supremacy of Parliament which it is the courts' inalienable responsibility to identify and
uphold." 45
The issue that arises with regard to constitutionally conferred jurisdiction is as to how the
courts should reconcile a provision which purports to oust their jurisdiction to review a
decision with their constitutionally enshrined original jurisdiction to review decisions of
legally constituted tribunals? This issue arose in the Australasian case of Plaintiff S 157 of
2002 v Commonwealth.46 The plaintiff had applied for a protection visa which was refused by
the Minister. The Minister's decision was affirmed by the Refugee Review Tribunal ("RRT")
but set aside by the Federal Court. Another RRT was constituted and it again affirmed the
Minister's decision. Plaintiff challenged this affirmation through judicial review. The issue
was whether section 474 of the Migration Act was invalid in respect of an application by the
47
plaintiff to the High Court of Australia for relief under section 75(v) of the Constitution?
Their Honours affirmed the central significance of the Court's constitutionally inferred
jurisdiction over a provision which purports to oust its jurisdiction to review decisions of any
legally constituted tribunal. They held that:
"The reservation to this court by the Constitution of the jurisdiction in all matters in
which the named constitutional writs or an injunction are sought against an officer of
the Commonwealth is a means of assuring to all people affected that officers of the
Commonwealth obey the law and neither exceed nor neglect any jurisdiction which
The law confers on them. The centrality, and protective purpose, of the jurisdiction of
this court in that regard places significant barriers in the way of legislative attempts
(by privative clauses or otherwise) to impair judicial review of administrative action.
Such jurisdiction exists to maintain the federal compact by ensuring that propounded
laws are constitutionally valid and ministerial or other official action lawful and
within jurisdiction. In any written constitution, where there are disputes over such
matters, there must be an authoritative decision-maker. Under the Constitution of the
Commonwealth the ultimate decision-maker in all matters where there is a contest, is

44 http://Www. theguardian.corr/world/2OO4/mar/O2/law
immigration.
45 Ibid.
46 (2003) 195 ALR 24; [2003] HCA 2.
47 Ibid, para 52.
 this court. The court must be obedient to its constitutional function. In the end,
pursuant to s 75 of the Constitution, this limits the powers of the parliament or of the
48
executive to avoid, or confine, judicial review."

The concept of representative democracy suggests that parliament, being

democratically elected, is in more legitimate position to create legal constraints than courts
are to review decisions. Thus some judges have been accused of "playing politics" by
refusing to uphold ouster clauses. 49 Courts are usually provoked to question parliament's
paramount rule based on their own constitutional duty to hear out people's claims of
injustice.

Another complexity which is created by ouster clauses is with regard to the separation
of judicial power. Judicial power means the power of the courts to authoritatively decide
legal rights and interests. 50 Ouster clauses effectively give tribunals the power to
authoritatively decide the legal limits of their power. To elaborate this point the Botswana
Ombudsman Act will once again be used. Section 3 (4) of this Act provides that the
Ombudsman shall act in accordance with his own discretion in determining whether to
initiate, continue or discontinue an investigation; and any question as to whether a complaint
is duly made under this Act shall be determined by the Ombudsman. Complaints which can
be made to the Ombudsman include matters in which aggrieved persons have "a right of
appeal, reference, or review to or before a tribunal constituted by or under any law in force in
Botswana." 52 The jurisdiction of the Ombudsman extends to matters in which aggrieved
persons have "a remedy by way of proceedings in any court of law." The Ombudsman may
also investigate matters in which aggrieved persons are seeking redress under section 18 of
the Constitution (which relates to redress for contraventions of the provisions for the
protection of fundamental rights and freedoms). 53 The Ombudsman has been given a wide
range of powers to decide on the rights and interest of the citizenry. However, the same
citizenry is barred by section 9 (1) of the Ombudsman Act from challenging the decisions of

48 Op Cit note 44, para 104.

49 J. B. Thomas "Judges who Play Politics", 77 AustralianLaw Journal (2003), p. 278.
50
R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.
51 Op Cit note 3.
52 Ibid, section 3 (2) (a).
53 Op Cit note 4, section 3 (3) (b).
the Ombudsman in Court if they are of the view that their rights and interests have not been
properly decided upon by the Ombudsman. The effect of the ouster clause in section 9 (1) is
that it confers judicial power upon the Ombudsman which is a body that is not a court.
Finally, administrative tribunals can indeed make final determinations on questions of
law which cannot be reviewed if the legislation establishing these tribunals contains an ouster
clause. In other words if such tribunal arrives at an erroneous decision on a point of law in
legislation which makes that decision final and conclusive, this is said to be a damnum sine
injuria. One can ask, "what about the overriding consideration that the constitution creates
judicial bodies and provides for their use by individuals to enforce their rights and
expectations?" Justice Hill, lamenting the impact that ouster clauses have on the liberty of the
citizen, told graduates on his graduation address that:
"When I became judge, I took an oath that I would do justice. Yet the results of the
legislation to prevent asylum seekers applying to any court to have judicial review of
decisions of Ministers or Migration Review Tribunals is that I can do no justice at all.
In one case, for example, I had to listen to a barrister paid by the Government say that
the Tribunal has made a decision which is clearly wrong in law. The Tribunal member
appeared not to have read the section under which he was supposed to be acting. He
completely addressed the wrong question. The barrister then, no doubt instructed by
the Government, told me that this decision, wrong in law although it was, must stand
and neither I nor any other judge in any other court, could do anything about it. That
is not justice. This time it is a refugee decision that while wrong, cannot be
challenged. Next time it might be some other decision that could personally affect you
54
and your rights."

5. JUDICIAL REVIEW, OUSTER CLAUSES AND THE OMBUDSMAN

INSTITUTION
Kirkham asserts that it is no longer necessary for the role of the Ombudsman to be explained
and justified as the intellectual argument for the model has long been won. 55 He states that

54 On the occasion of Justice Hill being awarded a Doctorate of Laws (Honoris Causa) by the University of
Sidney
(2003) 77 AU 275.
55 Richard Kirkham "The 21st Century Ombudsman Enterprise" Paper presented to the 101 biennial conference,
November 2012, Wellington, New Zealand. Available online at: tp://www.theioi.org/publications/wellington-
2012-conference-papers,p. 7.
instead, there is a more pressing need to prove the claims made on behalf of the
Ombudsman. 56 It has been claimed both by Ombudsman practitioners and academics that the
Ombudsman promotes accountability, trust and justice. 5 7 However, these claims have not
been verified by either the practitioner or the academic community. Thus finding ways to
verify and test the impact of the Ombudsman is one of the most important challenges facing
current ombudsman schemes. 59
Kirkham states further that it is important to verify and test the impact of the
Ombudsman in any given country. This is so because the world is experiencing global
economic pressures. In response to these global economic pressures, all public bodies
(including the Ombudsman) will be required to work under tighter budgets and work hard to
justify their continued existence. The topic as to what kind of evidence the Ombudsman
should be providing to prove its impact is hotly debated. However, there are many suggested
approaches that can be taken towards the evaluation of the impact of the Ombudsman. These
are: questioning of the Ombudsman publicly by a select committee in Parliament; legislation
that requires a periodic independent strategic review and submission of results to Parliament;
subjection of ombudsman decisions to judicial review; independent investigation process
undertaken by a specialist from another ombudsman scheme and cooperation with other
watchdog groups.61
The next segment of this article explores the subjection of ombudsman decisions to
judicial review as a tool of evaluating the performance of an ombudsman office. This is with
reference to the UK and South Africa ombudsman statutes. Those countries are chosen
because they are commonwealth members like Botswana and have cases where decisions of
the Ombudsman were judicially challenged. The objective is to assess whether these
countries have statutory provisions that allow judicial review of decisions of the
Ombudsman. If they do not have such provisions, the basis on which the cases were brought
before the courts will be established. Another objective is to find out whether on the basis of
the cases studied, judicial review can be endorsed as a performance tool for the Ombudsman.
The findings will be used in analysing whether the statutory exclusion of the judicial review

56 Ibid.
57 Op Cit note 55, p. 1
.
5 Ibid.
59 Ibid.
60 Op Cit note 55.
61Ibid.
of decisions of the Ombudsman in Botswana is proper. If it is found not to be proper, it will
be investigated whether there is need for legislative reform in that regard.

6. JUDICIAL REVIEW, OUSTER CLAUSES AND THE OMBUDSMAN

INSTITUTION
6.1 The United Kingdom
This article focuses on the Commission for Local Administration, usually known as the Local
Government Ombudsman (LGO) which was established by the Local Government Act
(LGA), 1974. The preamble of the LGA states that the Act exists to make provision inter alia
for the establishment of Commissions for the investigation of administrative action taken by
or on behalf of local and other specific public authorities. The mandate of the LGO as
provided for in the preamble is similar to the mandate of the Office of the Ombudsman in
Botswana. The preamble of the Ombudsman Act 62 states that the Act makes provision for the
appointment and functions of an Ombudsman for the investigation of administrative action
taken on behalf of government. A study of the case in which a decision of the LGO was
challenged in court is relevant for this article as Both Botswana and the UK are
Commonwealth member states and the mandate of their Ombudsman institutions is similar.
There is no provision in the LGA which states that proceedings of the LGO shall not be
questioned in any court of law. The only provision that talks about appearance of the LGO in
court is Section 32 (2) of the LGA which provides that a Local Commissioner and persons
discharging or assisting him shall not be called upon to give evidence in any proceedings of
matters coming to his or their knowledge in the course of an investigation. This clause
purports to protect the Commissioner and his staff from defamation suits arising from
investigation reports that they might have published and from being caused to disclose
information which is not subject to disclosure. The provision is not an ouster clause. Ouster
clauses usually provide that a decision taken shall be final, not appealable or not be
questionable in any legal proceedings. On this basis, one can safely conclude that the LGA
does not have a provision that purports to oust the jurisdiction of the courts from reviewing
its decisions.

62 Op Cit note 4.
 A decision of the LGO was reviewed in R v Commissionerfor Local Administration,
ex parte Croydon London Borough Council and Another.63 The facts are that the parents of a
child who was due to start her secondary education indicated to Croydon London Borough
Council (CLBC) their preference for three particular schools. The child was allocated to none
of the schools for which the parents had expressed preference and instead she was allocated
to a fourth school. The parents appealed the decision of CLBC and the appeal was heard by
the committee which decided that the child's allocation to the fourth school must stand. The
parents lodged a complaint with the Commissioner for Local Administration who conducted
an inquiry into the complaint and concluded that there had been maladministration in the way
that the committee had dealt with the appeal. The Commissioner ordered that the appeal be
reheard by a new committee. CLBC applied for judicial review seeking an order to quash the
report of the Commissioner. CLBC also sought a declaration that the findings of
maladministration made in the Commissioner's report are void and of non-effect.
The first issue to be decided was whether the Commissioner had jurisdiction to deal
with the issue at hand. 64 CLBC contended that the Commissioner had no jurisdiction to
investigate the complaint because the committee was exercising quasi-judicial or judicial and
not administrative function hence its decision was not subject to the scrutiny of the
Commissioner. 65 The Commissioner on the other hand submitted that when the education
authority deals with admissions, it is clearly exercising an administrative function, and this
66
being so, the Commissioner is entitled to conduct investigations on its decisions.
Woolf U defined "maladministration" and "administrative" functions. 67 He referred
to the definition given by Lord Donaldson MR, in the Eastleigh case 68 who, having referred
to the Bradford case 69 said:
"Administration and maladministration, in the context of the work of a local authority,
is concerned with the manner in which decisions by the authority are reached and the
manner in which they are or in which they are not implemented. Administration and

63 [1989] 1 ALL ER 1033.

64 Ibid, p. 1042, paragraph j.

65 Ibid.
66 Op Cit note 63, p. 1043, para f.
67
0p Cit note 63, page 1043, para b.
68 [1988] 3 ALL ER 151 at 155, [1988] QB 855 at 863.
69 [1979] 2 ALL ER 881, [1979] QB 287.
 maladministration have nothing to do with the nature, quality or reasonableness of the
decision itself."

Woolf U further cited a passage from the judgment of Eveleigh U in the Bradford
case 70 in which Eveleigh U said:
"If the local commissioner carries out his investigation and in the course of it comes
to the conclusion that a decision was wrongly taken, but is unable to point to any
maladministration other than the decision itself, he is prevented from quashing it."

Woolf U concluded that the Commissioner had jurisdiction to consider the two
complaints brought before him. He held that these complaints related to the manner in which
71
the decision was reached and touched on the quality of the decision as well.
The second issue to be determined was whether the jurisdiction of the Commissioner
was excluded by the fact that the parents as persons aggrieved had a remedy by way of legal
proceedings in that they could have applied for judicial review of the committee's decision.7 2
In deciding this issue, Woolf U first determined the meaning of the words "remedy by way
of proceedings in a court of law". 73 The Commissioner submitted that what the words mean is
that if proceedings are brought, they will succeed and result in a remedy being granted.7 4
CLBC on the other hand submitted that all that is required is that the issue is one
which could be the subject of proceedings in a court of law irrespective of whether or not
those proceedings would succeed.7 5 Woolf U was of the view that the words mean that if the
complaint was justified, the person concerned might entitled to obtain some form of remedy
in respect of the subject matter of complaint if he had commenced proceedings within the
appropriate time limits. He added that the Commissioner must not be concerned whether in
fact the proceedings would succeed but he merely had to be satisfied that the court of law is
the appropriate forum for investigating the subject matter of the complaint.76
Woolf U went on to state that it is not clear whether the limitation placed on the
Commissioner not to investigate matters where persons aggrieved had a remedy by way of

70 [1979] 2 ALL ER 881 at 902, [1979] QB 287 at 316.

71 Op Cit note 63, p. 1043, para h-j.
72 Op Cit note 63, p.1044, para a-d.
73 Op Cit note 63, p. 1044, para e.

74 Ibid.
75 Op Cit note 73.
76 Op Cit note 63, p. 1044, para i.
legal proceedings is only a threshold requirement or whether it applies at any stage of an
investigation. The Commissioner submitted that it only applies at the stage when he is
deciding whether or not to conduct an investigation and once he has embarked on an
investigation, it does not apply. Woolf U agreed that it is a threshold requirement. However,
he did not regard this issue as significant because the Commissioner has a continuing
77
discretion to decide whether to continue or discontinue an investigation.
It was held that even if the requirement does not deal with the subsequent stages after
the commencement of an investigation, in exercising his discretion whether to discontinue an
investigation, the Commissioner must approach the matter very much in the same way as he
would if the requirement applied. 78 If it becomes apparent during investigations that the
issues being investigated are appropriate to be resolved in a court of law, the Commissioner is
required to consider whether, notwithstanding this, it is appropriate to continue with the
investigation broadly. When performing this exercise, the extent to which the investigation
has proceeded is a relevant consideration for the Commissioner to take into account in
79
deciding whether or not to discontinue the investigation.
Having regard to the Commissioner's evidence, Woolf U concluded that he cannot make a
finding that the Commissioner should have appreciated at the outset that the investigation
was one in relation to which the complainant had a remedy by way of judicial review.
However, he found that in the course of the investigation, it should have been appreciated
that the complaint had had such a remedy. 8 Woolf U clarified that this does not, in practice,
prevent the Commissioner from investigating the activities of the appeals committee (in
relation to which he has express statutory jurisdiction) as the Commissioner retains his
discretion in deciding whether to initiate or discontinue an investigation and unless that
discretion is unlawfully exercised, the courts will not and cannot interfere with his decision.81
In addition, Woolf U held that where there is a remedy, inter alia, in a court of law,
the courts do not have sole jurisdiction and the Commissioner may still intervene.8 2 He held
further that if there is a tribunal (whether it be an appeal tribunal or a Minister of the crown or
a court of law which is specially designed to deal with the issue), that is the body to which the

77 Op Cit note 63, p. 1044, para g.

71 Op Cit note 63, p. 1044, para h.
79 Op Cit note 63, p. 1044, para j.
'o Op Cit note 63, p. 1045 para d.
8 Op Cit note 63, p. 1045, para e.
20p Cit note 63, p. 1045, para a.
complaint should normally resort. He stated that this approach is important in the case of
issues which are capable of being resolved on judicial review. 83 He asserted that Parliament,
by Section 31 (6) of the Supreme Court Act made it clear that there should be protection for
public bodies and if, as in the present case, the Commissioner is going to recommend the very
same relief as could be provided on judicial review, he should take account before doing so
the fact that his jurisdiction is not subject to the safe guards. 84 He emphasized that the
Commissioner should also have in mind, even when the holder of the office is a distinguished
lawyer as the case here, that his expertise is not the same as that of a court of law. He added
that issues whether an administrative tribunal has properly understood the relevant law and
legal obligations which it is under when conducting an inquiry are more appropriate for
85
resolution by the High Court than by a commissioner, however eminent.
Woolf U noted that in this case, there was a conflict between the Commissioner's
jurisdiction and that of the court which the Commissioner never appreciated but should have
before concluding his investigation, and he should have discontinued his investigations on
this basis. However, since the Commissioner indicated that if he had considered the question
of discretion, he would have undoubtedly decided to proceed, Woolf U did not grant relief
solely on this ground.86
Relief was granted on the basis that the two grounds upon which the Commissioner
found maladministration on the part of CLBC were unjustified. Firstly, the Commissioner
was of the view that the committee was not entitled, on the basis that the child's admission
would result in an increase above the 210 figure which was the planned admission limit for
the school, to conclude that to allow the parents' appeal would result in prejudice. However,
the limit was part of CLBC's transitional arrangement to establish a sixth form entry, the
committee had explained the circumstances under which that number was determined, it was
CLBC's policy that all paces at the school had to be offered to children who, unlike the child
in question, were resident in Croydon and 97 parents from Croydon still had their names on
the waiting list. Woof U held that these factors were ample material upon which the
committee concluded that admission of then daughter would be prejudicial.87

83 Ibid.
84 Op Cit note 62, p. 1045, para b.
15 Op Cit note 63, p. 1045, para c.
86 Op Cit note 63, p. 1045, para f.
17 Op Cit note 63, para g-j.
 Secondly, the Commissioner criticised CLBC for concluding the parents appeal on
policy considerations alone. Woolf LJ observed that members of the committee took different
views of the policy, as they were entitled to, but in no case did any member decide the case
on policy considerations alone. He held therefore that the Commissioner's criticism is
unjustified as there is no foundation for the Commissioner's findings of maladministration.
He granted CLBC a declaratory order that the Commissioner's report was void and of no
effect. 88 Hutchison J concurred.
Concluding on the UK case study, it is worth noting that in the UK, as far back as
1932, although nothing was done by Parliament, it was recommended that ouster clauses in
statutes "should be abandoned in all but the exceptional cases." 8 9 As far back as 1956, the
courts have indicated that they would, as Lord Viscount Simonds said in Smith v East Elloe
RDC9° , "Regard with little sympathy legislative provisions for ousting the jurisdiction of the
courts." In this case, the court set four grounds upon which relief would be given being:
informality of procedure, ultra vires, misuse of power bona fide and misuse of power mala
fide9
In addition, it has long been believed in the UK, as Browne J put it in Anismic v
Foreign Compensation Commissioner: 92
"Whenever Parliament creates a new inferior tribunal, the High Court has inherent
jurisdiction to supervise and control it, and any person aggrieved by a decision of the
93
tribunal has an inherent right to ask the court to exercise those powers."

With such legal history, the Parliament in the UK could not expend effort in enacting
Ombudsman statutes with ouster clauses. As to whether it can be said that judicial review
served to evaluate the performance of the Ombudsman in the UK case study, it can be
answered in the affirmative. The court has established in the R v Commissioner for Local
Administration, ex parte Croydon London Borough Council and Another 94 that the
Ombudsman will always be checked, whether in the performance of his functions, he reached
his decision in a correct manner, and whether he did not usurp court functions.

" Op Cit note 63, p. 1046, para a.

89 Report of the Committee on Ministers Powers, 1932.
90 ]1956] 1 ALL ER 855 at
858.
9' Ibid at 866.
92 [1969] 2 AC 147.
93 Ibid at 234.
94 Op Cit note 63.
6.2 South Africa
The Ombudsman is called the "Public Protector" in South Africa. Section 181 of the
Constitution of the Republic of South Africa 95 makes provision for the establishment of the
office of the Public Protector. The function of the Public Protector is to investigate any
conduct that is alleged or suspected to be improper or to have resulted in any impropriety or
prejudice in state affairs or in the public administration. 96 The Ombudsman is also mandated
98
to report on that conduct and to take appropriate remedial action.
97

There is no provision in the Public Protector Act 99 which ousts review of the Public
Protector's decisions by the courts. The only provision that mentions appearance of the
Public Protector before courts is Section 6 (8) of the Public Protector Act which provides that
the Public Protector or any member of his or her staff shall be competent but not compellable
to answer questions in any proceedings in or before a court of law or anybody or institution
established by or under any law, in connection with any information relating to the
investigation which in the course of his or her investigation has come to his or her
knowledge.
The Public Protector's decision was subjected to judicial review in M & G Media
Limited and Others v Public Protector.10 The facts are that, a national weekly newspaper
known as the Mail & Guardian (M&G) published articles relating to what became known as
"oilgate". These articles raised allegations regarding the dealings between a private company,

Imvume Management (Pty) Ltd ("Imvume") and officials within the African National
Congress ("the ANC"), the Department of Minerals and Energy ("DME"), the Strategic Fuel
Fund Association ("the SFF") and the Petroleum, oil and Gas Corporation of South Africa
("PetroSA"). Both the SFF and PetroSA are state-owned corporations. The allegations are
that Imvume and its chief executive officer, Sandi Majali ("Majali"), obtained lucrative
contracts for Iraqi oil with the support of ANC and government officials, on the
understanding that the proceeds would benefit the ANC, and that the ANC would use its

95 Act No. 108 of 1996.

96 Ibid, section 182 (1) (a).
97 Op Cit note 73, section 182 (1) (b).
9' Op Cit note 73, section 182 (1) (c).
99 Act No. 23 of 1994.
100 [2010] 1 All SA 32 (GNP)
position as the ruling party in Government to oppose sanctions against Iraq on the
international plane.
In the course of this, the SFF irregularly awarded a contract to Jmvume for the supply of Iraqi
oil. PetroSA irregularly advanced R 15-million to Jmvume. Rather than using the money for
its intended purpose, which was to pay a supplier for a cargo of oil condensate destined for
PetroSA, Jmvume channelled the bulk of this to the ANC (which received R 11 million) and
others. When Jmvume was unable as a result to pay the supplier of the oil condensate,
PetroSA paid the same amount (and more) again. The effect was that PetroSA was R
18 million out of pocket and that public money had been transferred to, amongst others, the
ANC.
A member of the National Assembly, Mr Willie Spies, lodged a complaint with the
Public Protector accusing PetroSA of improper conduct and maladministration, in that it used
Jmvume as a conduit to transfer public money to the ANC. In addition, the Public Protector
was requested to conduct an investigation into the exact nature of business relationships
between close relatives of the Minister of Minerals and Energy and the Minister of Social
Development and Jmvume. As the story unfolded, the leader of the official opposition in
parliament, Mr. A. J. Leon, asked the Public Protector on two occasions to expand his
investigation by determining the extent to which the state was involved in funding and
supporting Jmvume's Iraqi oil ventures and travel related thereto.
The Public Protector (Advocate M. Mushwana, assisted in his investigation by
Advocate C. Fourie) acceded to the requests, conducted investigations and produced a report.
He recommended that the Board of PetroSA, in consultation with the CEO and PetroSA's
legal advisors, should "take urgent steps to ensure that the outstanding amount due to
PetroSA by Imvume is recovered without delay and in compliance with the provisions of
sections 50(1)(d) and 51(1)(b)(i) of the Public Finance Management Act, 1999; and regularly
report to the Minister of Minerals and Energy on the progress made in regard to the recovery
of the outstanding amount. In addition, he recommended that the Minister of Minerals and
Energy must report to the Cabinet and to Parliament on the steps taken and the progress made
to recover the outstanding amount due by Imvume." 101
M & G and two journalists brought review proceedings against the Public Protector in
the North Gauteng High Court. They asked for orders setting aside the report and ordering the

101 Ibid at para 10.

Public Protector to investigate and report afresh. The orders were granted by Poswa J who
concluded that the Public Protector ought to have investigated the complaints that he did not
investigate and to have investigated more fully the ones he did investigate. He noted however
that, that does not automatically render the Public Protector's report liable to be set aside.
Poswa J asserted that a combination of the principle of legality and judicial deference ensures
that a Court can, without usurping the powers or functions of a public official, determine
whether or not the conduct of such public official is rational in accordance with the powers
and duties conferred upon him by statute.
Bearing these two principles in mind, Poswa J came to the conclusion that the Public
Protector acted irrationally in respect of complaints that he did not investigate because he
considered them to be beyond his jurisdiction and complaints which he investigated with the
aid of inadequate evidence, i.e., without obtaining further relevant evidence. Consequently,
he set aside the Public Protector's report and ordered the latter to investigate complaints that
were not investigated, re-investigate all complaints that were investigated and write a report
on the outcome of his investigation.
The Public Protector appealed the decision of the North Gauteng High Court. 1 2 Nugent JA
observed that the Public Protector is not a passive adjudicator between citizens and the state.
Further that the mandate of the Public Protector is an investigatory one, requiring the
initiative to commence an enquiry relying on evidence before him, and on no more than
information that has come to his knowledge of maladministration, malfeasance or
impropriety in public life. 13 Nugent JA observed in addition that the court is not called upon
to make findings on the matters that were placed before the Public Protector for investigation,
or on the veracity or authenticity of material that might have been relevant to his enquiry.
Rather it was concerned only with the extent to which that material casts light upon the
adequacy or otherwise of the investigation. Moreover, he noted that the court is not called
upon to direct the Public Protector as to the manner in which an investigation is to be
conducted - it is for the Public Protector to decide what is appropriate to each case. The court
would only to assess what might be expected in the proper performance of the functions of
the Public Protector so as to determine the adequacy or otherwise of his investigation.

102 Public ProtectorV M & G 2011 (4) SA (420) (SCA).

103 Ibid, para 9.
 Nugent JA found that there is no dispute in this case that an investigation and report
of the Public Protector is subject to review by a court. He established a test: that the
investigation must have been conducted with an open and enquiring mind. He stated that an
investigation that is not conducted with an open and enquiring mind is no investigation at all.
He explained an open and enquiring mind as:
"A state of mind that is open to all possibilities and reflects upon whether the truth has
been told. It is not one that is unduly suspicious but it is also not one that unduly believes. It
asks whether the pieces that have been presented fit into place. If at first they do not then it
asks questions and seeks out information until they do. It is also not a state of mind that
remains static. If the pieces remain out of place after further enquiry then it might progress to
being a suspicious mind. And if the pieces still do not fit then it might progress to conviction
that there is deceit. How it progresses will vary with the exigencies of the particular case. One
question might lead to another and that question to yet another, and so it might go on. But
whatever the state of mind that is finally reached, it must always start out as one that is open
10°4
and enquiring."
Applying this test to this case, Nugent JA held that it is clear that there was no
investigation of the primary complaint as the Public Protector's purported investigation and
report was so scant as not to have been an investigation and there was no proper basis for any
of the findings that were made. Concerning the second complaint, it was held that it is
manifest that the substance of the request was not investigated at all. On the third complaint,
it was held that it is manifest that this was no investigation at all and that there was no proper
basis for that finding. Nugent JA attributed the outcome of the purported investigation to the
state of mind in which it was conducted pointing out to the fact that responses were sought
from people in high office and recited without question as if they were fact. He summed up
that;
"An investigation that is conducted in that state of mind might just as well not be

conducted at all. The investigator is then no more than a spokesman, who adds his or
her imprimatur to what has been said, which is all that really occurred in this case. I
have said before that an investigation calls for an open and enquiring mind. There is
10°5
no evidence of that state of mind in this investigation.

104 Op Cit note 80, para 21.

105 Op Cit note 80, para 141.
 Nugent JA confirmed the finding of the court a quo that there was no proper
investigation and consequently set aside the report and ordered re- investigation. He
emphasized once again that it is not open to the court to supplant the Public Protector by
directing with precision what is required for a proper investigation hence he set aside the
court a quo's order which sought to direct how the re-investigation must be done. Ponnan,
Snyders and Tshiqi JJA and Plasket AJA concurred.
It must be noted that the Public Protector Act was enacted pursuant to provisions of a
Constitution whose drafters, following the injustices that occurred due to enactment of
draconian laws during the apartheid era, were determined to achieve some measure of
separation of powers and checks and balances as mechanisms to circumscribe parliamentary
power and ensure respect for limited government. In addition, South Africa is a new
democracy which had an opportunity to benchmark its Constitution and Public Protector Act
from older democracies. It can safely be argued that South Africa emulated the UK and other
old democracies by not statutorily ousting the jurisdiction of the courts to review the
Ombudsman's decisions. In exercising its inherent original jurisdiction, the Supreme Court of
South Africa has made it clear that Ombudsman decisions are reviewable to determine
whether they were reached at through an open and enquiring mind failing which they will be
quashed and a reinvestigation ordered. By reviewing the Ombudsman's decision in this case,
the court was essentially reviewing the performance of the Ombudsman thus confirming
Khirkham's assertion that judicial review "retains in the system the potential for mistakes,
errors to be rectified and a degree of external pressure to foster care and attention within
ombudsman schemes."' 106 As Kirkham has stated, the Ombudsman like all public bodies
should be checked whether it serves its purpose which is to promote accountability, trust and
10 7
justice.
7. BOTSWANA: A NEED TO REFORM?

The office of the Ombudsman in Botswana was established through the Ombudsman
Act.10 8 and its mandate is to investigate any action taken by or on behalf of a government
department, being action taken in the exercise of administrative functions of that department
or authority, to make recommendations for remedying the injustice caused and to make an

106 Op Cit note 55, p. 10.

107 Op Cit note 57.
'0' Op Cit note 4.
annual report to the President concerning the discharge of his functions, which shall be laid
before the National Assembly.
Unlike in the UK and South Africa case studies, decisions of the Ombudsman office
in Botswana have never been subjected to judicial review. The major contributing factor is
the inclusion of an ouster clause in the Ombudsman Act which provides that ombudsman
proceedings shall not be questioned in a court of law. The question as to "who checks the
Ombudsman" is a frequently asked question which is always posed to ombudsman officials
during educational and awareness campaigns. This clause continues to cause concern to
customers of the Ombudsman office who find themselves aggrieved with decisions of the
Ombudsman and they are advised that according to the ouster clause in Section 9 (1) of the
Ombudsman Act, they cannot make an application for judicial review of ombudsman
decisions. Section 9 (1) of the Ombudsman Act provides that "in the discharge of his
functions, the Ombudsman shall not be subject to the direction or control of any other person
and no proceedings of the Ombudsman shall be called in question in any court of law."
As stated above, the objective of this article is to anticipate how Botswana courts will
react if it can happen that they receive an application for judicial review of a decision of the
Ombudsman. The anticipation is premised on cases which involve statutes which have ouster
clauses and have been adjudicated before the High Court of Botswana.
In Botswana, legislative attempts to exclude judicial review through ouster clauses
were interpreted by the High Court as "contrary to the Spirit of the Constitution which allows
10 9
individuals aggrieved by administrative decisions to approach the courts for remedies."
There are decisions of respectable lineage which say that ouster clauses must be jealously
guarded by the courts and that they do not take away the jurisdiction of the courts where
action complained of was taken mala fide, or where there is fraud or the action was ultra
110
vires.
In Chief Seepapito Gaseitsewe v Attorney General,"'M the High Court considered
section 25 of the Chieftainship Act1 2 which purported to oust the jurisdiction of the courts.
Section 25 of the Chieftainship Act states that "notwithstanding any provision of any
enactment to the contrary, no court shall have jurisdiction to hear and determine any cause or

'09 0. B. K. Dingake, Administrative Law in Botswana: Cases, Materials and Commentaries (2 Ed) (2008)
Mmegi Publishing House, Gaborone at 320.
110 Ibid.
111 Civil Case No 5 of 1995 (Unreported).
112 (Cap. 41:01) (Act No. 19 of 1987.
matter affecting Bogosi." In this case, Chief Seepapitso of Bangwaketse challenged his
suspension from holding the office of Chief by the Minister of Local Government and Lands.
In the course of his judgment, Justice Nganunu said:
"...However it is well known that the jurisdiction of the High Court is not ousted by a
clause such as the present one where the litigant claims that the person or authority
given power by a statute to suspend has exceeded that power, i.e. That the suspension
is ultra vires or where the claim is that the power was used for a wrong purpose, i.e.
the use was tainted by some illegality.. .In these circumstances, this court will have
jurisdiction to hear the application notwithstanding the provisions of s 25."

Another case concerning judicial review of a decision of a lawfully constituted body

despite the existence of an ouster clause is Legodimo Kgotlafela Leipego v Attorney General
and other.113 This was a case concerning the nomination of a candidate to succeed the Sub-
Chief of Hukuntsi, who had retired. Two names were proposed: the applicant and one
Anthony Moapare. Elections were held and applicant lost. He complained alleging that the
election were flawed in that young people below the age required for participation in
chieftainship matters and women born in Hukuntsi but married in neighbouring villages
voted. Fresh elections were arranged and he lost again. Decrying the same irregularities, he
applied to the High Court, which ruled that on the basis of s 25 of the Chieftainship Act
which ousted the court's jurisdiction, it could not entertain the matter. He appealed to the
Court of Appeal which when reversing the decision of the High Court said:
"There are decisions of respectable lineage which say that ouster clauses must be
jealously guarded by the courts and that they do not take away the jurisdiction of the
courts where action complained of was taken mala fide, or where there is fraud or the
action was ultra vires."
It is submitted on the basis of the two cases discussed above that decisions of the
Ombudsman in Botswana are reviewable despite the ouster clause in the Ombudsman Act. As
long as the Ombudsman exceeds his/her power (acts ultra vires), uses his/her power for
wrong purposes (illegally) and acts mala fide or fraudulently, the courts will definitely review
such decisions upon receipt of an application of review made by applicants who have the
right of legal standing to bring such an application.

113 1993 BLR 229.

 There is also judicial precedent from South Africa and the UK which are
Commonwealth countries like Botswana. Although these two countries have not included
ouster clauses in the legislation which establishes their Ombudsman offices, the courts in
those countries have asserted that decisions of the Ombudsman are reviewable. The courts in
those countries have even laid down factors upon which Ombudsman decisions are
reviewable. This leads to a safe submission that should the courts in Botswana receive an
application to review a decision of the Ombudsman, they will not be barred by a point in
limine that proceedings of the Ombudsman shall not be questioned in a court of law. The
courts will follow their own precedent on cases which involved statutes with ouster clauses.
The courts will also follow judicial precedents from cases involving the review of
ombudsman decisions which have been set by the Commonwealth member states' courts.
In light of the submission that the courts of Botswana will not be deterred by an ouster
clause from hearing an application for the review of a decision of the Ombudsman, this
article calls for the ouster clause in section 9 (1) of the Ombudsman Act to be repealed. The
Public Protector Act in South Africa and the Local Government Act in the UK do not have
such an ouster clause as already discussed above.
South Africa represents a new democracy and the fact that it does not have an ouster
clause in their Ombudsman Act proves that the drafters were thorough to do what is the norm
in Ombudsman circles. The UK represents an old democracy from which new democracies
can benchmark trends including those of democracy supporting institutions such as the
Ombudsman. Botswana ought not to have included such an ouster clause when drafting its
Ombudsman Act in 1995.
The ouster clause in section 9 (1) of the Ombudsman Act is a mere waste of the
legislature's ink. It is a scare crow which prevents people from duly accessing their right to
have their rights and interests decided by the courts of law. The ouster clause also prevents
the performance of the Ombudsman office to be reviewed. The effectiveness of the Botswana
Ombudsman in promoting accountability, trust and justice will not be widely known unless it
is publicly tested and verified by the courts of law through judicial review as and when need
arises.
8. CONCLUSION
It has been established that both the UK and South Africa do not statutorily oust
jurisdiction of the courts to review their decisions. This is a wise legislative endeavour
because courts retain an inherent right to supervise and control the manner in which the
Ombudsman performs its mandate. Ouster clauses are therefore rendered ineffective by the
constitutionally conferred jurisdiction of the courts to hear anyone who lodges an application
with them, exercising of his/her constitutional right to access the courts. The courts of
Botswana have also taken a stand and made it clear that they will review a decision of any
statutory body created by parliament provided that the manner in which the power of the
body concerned was used ultra vires, mala fide or fraudulently. It is therefore anticipated that
should anyone apply for review of the Ombudsman decision in Botswana, the courts would
disregard part of section 9 (1) of the Ombudsman Act which states that Ombudsman
proceedings shall not be questioned in a case of law. The courts would review the decision of
the Ombudsman. The ouster clause in section 9 (1) of the Ombudsman Act was therefore a
waste of the legislature's ink and should be repealed.
It has also been established that he subjection of ombudsman decisions to judicial
review is one of the ways of evaluating the performance of any ombudsman office. Judicial
review retains the potential for mistakes and errors to be rectified and a degree of external
pressure to foster care and attention within ombudsman scheme.11 4 11 Ehat has been proved
correct in the UK and South African court cases studied, where the courts found that the
manner in which the ombudsmen reached their decisions was not proper. The Courts
established tests for ombudsmen to use to determine whether they are exercising their powers
correctly. In Public Protectorv M & G115 the court established that the test as to whether the
Ombudsman has exercised his powers correctly is to check whether the investigation in
question was conducted with an open and enquiring mind. Courts have also laid down
grounds upon which decisions of any statutory body will be reviewed. In R v Commissioner
for Local Administration, ex parte Croydon London Borough Council and Another1 6 the
court set four grounds upon which relief would be given being: informality of procedure,
117
ultra vires, misuse of power bona fide and misuse of power mala fide.
These cases undoubtedly identified errors and caused the same to be rectified by the
concerned ombudsmen. They have also fostered care in complaint handling within the
Ombudsman scheme, not only within their jurisdictions but within the commonwealth

114 Op Cit note 55, p. 10.

115 Op Cit note 80.
116 Op Cit note 63.
".7 Ibid at 866.
jurisdiction. Thus judicial review has been endorsed as a performance tool for the
Ombudsman institution. Statutory exclusion of judicial review of decisions of the
Ombudsman of Botswana is therefore improper as it purports to prevent the courts from
evaluating the performance of the office. There is therefore need for legislative reform to
repeal the part of section 9 (1) of the Ombudsman Act which states that Ombudsman
proceedings shall not be questioned in a case of law. In Chief Seepapito Gaseitsewe v
Attorney General, 118 it was held that notwithstanding the existence of an ouster clause, courts
will have jurisdiction to hear a review application where the litigant claims that the exercise
of the power by a person or authority given the power by a statute is ultra vires or where the
claim is that the use of the power was tainted by some illegality.

...Op Cit note 89.