Address by the Deputy Minister of Justice and Constitutional Development, the Hon JH Jeffery, MP on the Debate of the Motion by the Leader of the Opposition in terms of section 89(1)

5 April 2016, National Assembly

Madam Speaker
Honourable Members
The motion is brought in terms of section 89 (1) of the Constitution that the National Assembly may remove the President on the grounds of a serious violation of the Constitution or the law.

The DA, in their draft resolution, claim that the President seriously violated the Constitution by instituting parallel investigative processes and failing to implement the Public Protectors remedial action.

But here's the issue.

The Constitutional Court judgment stated that the President failed to uphold, defend and respect the Constitution. In the order they stated that his conduct was inconsistent with the Constitution.

The Court did not find a "serious violation", as section 89(1)(a) of the Constitution requires.

There is a difference, whether the DA likes it or not, between an inconsistency and a serious violation.

In fact, the EFF specifically wanted the Court to declare that the President violated his oath of office - but the Constitutional Court did not declare this.

Nor did the Court declare that the President perpetrated "a serious violation of the Constitution or the law", committed "serious misconduct", or has shown any "inability to perform the functions of office". It is only on these grounds that Parliament may remove the President from office.

So it is the DA - and not the Constitutional Court - that is saying the President committed a serious violation of the Constitution.

In our constitutional dispensation it is only the Constitutional Court that can determine what is constitutional and what isn't.

Prior to that determination - which was given last Thursday - there was no legal certainty on the matter of whether the Public Protector's remedial action was binding or not.

And it was upon this legal uncertainty that events unfolded as they did.

By way of example of the different views on the matter, a Constitutional Law textbook, - Woolman and Bishop, Constitutional Law of South Africa (2012) Juta 2nd ed. Chapter 24 A-3 states:

"One of the most common criticisms levelled against the Public Protector and Ombudsman generally is that the institution lacks the power to make binding decisions. In truth, however, the ability of the Public Protector to investigate and to report affectively without making binding decisions is the real measure of its strength."

This seemed to be correct, as even previous Public Protectors were of the view themselves that their findings were not binding.

In November 2000, then Public Protector, Adv Selby Baqwa told SAPA at the International Ombudsman Institution Conference that "while he had no statutory powers, government implemented about 90 percent of the recommendations made by his office."

This argument appeared to have been confirmed in the Democratic Alliance v SABC and Others case where Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings and remedial action imposed by that office are not binding and enforceable.

It was against this legal backdrop of strong views that the Public Protector's remedial action was not binding, that events unfolded as they did.

So what opposition parties now, with the luxury of hindsight, say is crystal clear, was not always so crystal clear.

It was not even so crystal clear to the Public Protector herself.

In an affidavit made and attested to by Ms Madonsela on 8 April 2014 in the case of The Minister of Home Affairs vs the Public Protector (case number 76554/13 in the North Gauteng High Court), the Public Protector states at paragraph 60:

"the Constitution and the Public Protector Act do not provide any mechanism to enforce the remedial action taken by the Public Protector".

In the next paragraph she states:

"The remedy does not bind the applicants. It cannot because there are no provisions in law that make the remedy binding."

In paragraph 62 she states:

"while the Public Protector cannot and does not make binding orders, its recommendations should nevertheless be respected...".

Interestingly enough she also argued - in paragraph 19 of her affidavit - that the Minister of Home Affairs should not have taken her on review and that the matter -

"could and should have been debated in Parliament... The objections of the Minister could have been raised there, and if it was deemed necessary, Parliament could have determined whether I exceeded my functions or not. I submit that that is the more proper means of addressing any concerns in my report and that it was improper for the applicants to approach a court..."

So what the Public Protector was saying in April 2014 was, don't go to court if one disagrees with her report, take it to Parliament instead.

Even Thursday's judgment, in paragraph 73, says that the judgment of the Supreme Court of Appeal was correct in recognising that the Public Protector's remedial action might at times have a binding effect.

I don't think I have to explain to the opposition what "might" means.

Why am I explaining the legal uncertainty to this House?

To show that the President and this House never acted with mala fides - in other words, in bad faith. The President acted in good faith and in the justified belief that he was entitled to do so in terms of the Constitution. So his failure to fully implement the recommendations of the Public Protector or take the report on review was on the belief for which there was considerable support at the time that the remedial action was not binding.

There are opposition parties who want to create the idea that when someone is handed a report by the Public Protector, they must simply comply with it - as if it were a court order.

This is not the case. The Constitutional Court itself held that there is not an absolute bar to what some see as a "parallel" investigative process. The Court held -

"The President was... entitled to inquire into the correctness of those aspects of the report he disagreed with.

That inquiry could well lead to a conclusion different from that of the Public Protector. And such a contrary outcome is legally permissible."

It is not only for President Zuma that the Constitutional Court has declared the conduct of a President invalid. In the Albutt case the Constitutional Court upheld a decision interdicting President Mbeki from granting pardons to perpetrators of political violence, because the exercise of the power to grant pardon was not rationally related to its purpose.

In the Pharmaceutical Manufacturers case in 2000 the Constitutional Court famously held that President Mandela violated the Constitution (on the basis of acting irrationally), and that his bona fides was no defence.

Madam Speaker,

The President has issued an apology and assured that nation that he acted in good faith and never knowingly and deliberately set out to violate the constitution.

The President has undertaken to the nation that he will abide by the judgment. He has agreed to pay for the non-security measures implemented by Public Works at Nkandla.

The Minister of Finance has given the assurance publicly that Treasury is putting together a team with the necessary technical expertise to execute the mandate given by the court.

The President, the Executive and Parliament will do exactly as the court has ordered - because we believe in the rule of law and because we uphold the Constitution.

I thank you.

Issued by the ANC, 5 April 2016