Nkandla: DA optimistic that ConCourt will uphold constitutional powers of the Public Protector

9 February 2016

Today’s Constitutional Court case has to do with two very important constitutional principles.

The first has to do with the enforceability of remedial action ordered by the Public Protector. Section 181 of the Constitution sets the Public Protector apart from other Chapter 9 institutions in that the Public Protector can “take remedial action”. Adv Thuli Madonsela took such remedial action in respect of the President in her report on the Nkandla homestead, and ordered the President to pay back a reasonable proportion of the money spent on the non-security upgrades.

Today, in fact, counsel for President Zuma, The Speaker of the National Assembly, Baleka Mbete and The Minister of Police, Nathi Nhleko, all eventually conceded that indeed the powers of the Public Protector have legal consequences and can only be challenged by way of judicial review. This is bizarre given that the DA had been arguing this from the very beginning.

Up until recently, the President has steadfastly argued that he was not obliged to heed this remedial action, and that such remedial action was simply advice which he could take or ignore. In his letter to the Public Protector dated 11 September 2014, he described her reports as “useful tools in assisting democracy in a cooperative manner, sometimes rather forcefully”. He specifically denied that they were binding on him.

The Democratic Alliance was determined to clarify this matter in law, and took the failure by the SABC to take the remedial action to subject its COO, Mr Hlaudi Motsoeneng, to disciplinary action, on review, first in the Cape High Court, and then subsequently in the Supreme Court of Appeal (SCA). In the SCA judgment, the powers of the Public Protector are placed beyond judicial doubt: it said

The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 181(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation.

Faced with this unequivocal judgement, the President has, very belatedly, tried to settle the matter. He now accepts the fact that he has to pay, and has made some suggestions about how to do so. 

But this is really a side-show, although an important one. The fact is that, unless the powers of the Public Protector are confirmed by the highest court of the land, there is always the danger that another institution of state will, in future, seek to “second-guess…findings and ignore…recommendations” of the Public Protector. 

So this case is about the powers of the Public Protector, and whether remedial action is binding on organs of state. 

But it is also about accountability and upholding the rule of law. Our Constitution is binding on all organs of state, including the President. To have ignored a constitutional organ, in the form of the Public Protector, for over two years, and to have employed a series of stratagems, including the Police Minister’s Report and the three ad hoc parliamentary committees, to “second guess” and “ignore” the Public Protector requires judicial action. In so doing Parliament and the Police Minister, Nathi Nhleko, have manipulated their roles to further thwart due process all in an effort to absolve the President for his role in the abuse of R246 million in public funds. They have aided and abetted the President in his vexatious attempts to unravel our hard won constitutional order.

That is why the DA seeks an order declaring the decision by the President to ignore the Public Protector’s remedial action to be unlawful and constitutionally invalid.

This case has not only got huge implications for the Public Protector and her powers, but also for democratic accountability. 21 years into our democracy, we need to establish the benchmarks of good governance and transparency, and we are confident that the Court will assist in achieving this.

Issued by James Selfe, Chairperson of the DA's Federal Executive, 9 February 2016