The quotable parts of the Judge Ashton Schippers ruling in Democratic Alliance v SABC and Others are: “… unlike an order or decision of a court, a finding by the Public Protector is not binding on persons and organs of state. If it was intended that the findings of the Public Protector should be binding and enforceable, the Constitution would have said so”. And, “The fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.”

Schippers found the SABC and minister of communications had not provided cogent reasons for not following the Public Protector’s remedial action and ordered the SABC to begin disciplinary proceedings against Motsoeneng. So the DA effectively got what it was looking for. More importantly, however, the judgment may determine whether President Jacob Zuma has to pay back some of the money that he and his family benefited from during the Nkandla upgrades, as recommended by Advocate Thuli Madonsela.

The South African Communist Party reacted to the judgment by lumping the Public Protector in with opposition parties and claiming she has been misleading the public. “Madonsela has been misleading the public and misrepresenting the powers of this office by claiming that her decisions are binding unless reviewed by a court of law. She, together with the DA, the band of anti-majoritarian liberals as well as large sections of the media, have actually been telling a lie in this regard,” the party said in a statement.

The DA’s James Selfe claimed victory. “The implication of this judgment is that organs of state must implement the findings and remedial action of the Public Protector unless they declare rational grounds, that would stand up in a court, for not doing so. The implications of this finding in the Nkandla scandal are immense. In the Nkandla Report, the Public Protector ordered the president to pay a reasonable percentage of the costs of the non-security upgrades to his private home. It is clear that the judgment applies to this remedial action too. The president, and the Nkandla ad hoc vommittee, cannot ignore the remedial action in this report. The president must now do the right thing and pay the money he owes South Africa.”

The ANC chief whip’s office said Schippers’ judgment solves the matter the Nkandla ad hoc committee has been debating. “The opposition had relentlessly insisted, and even walked out in protest, that reports of the Public Protector are binding and enforceable and Parliament may not question them. The judgment of the High Court today has proven that this view is legally flawed and without substance,” said the whip’s spokesman Moloto Mothapo. “We fully agree that the reports of the Public Protector cannot be ignored; hence Parliament has set up this committee to deliberate on this and other reports relating to the security upgrades at Nkandla.”

There’s the issue. Schippers ruled that the state can only reject reports of the Public Protector on rational grounds, raising the question: what rational grounds are there to reject Madonsela’s findings that Zuma and his family improperly benefited from the Nkandla upgrades and the recommendation he should pay back a portion of the money spent?

In Motsoeneng’s case, while the judge found the Public Protector does not have the powers of a court he upheld her recommendation the SABC boss is disciplined.

If Zuma rejects Madonsela’s remedial action, he must provide detailed, cogent reasons for doing so. “Here is the crux of the matter,” wrote constitutional law expert Pierre de Vos, “the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.”

“The judgment means that neither the president (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.”

Zuma needs to rely on strong, clear arguments, most likely from the Nkandla ad hoc committee final recommendations and those of the other reports on the issue, that show it is rational not to pay back the money. Under scrutiny from the courts, that might not be as easy as the ANC hopes.

Soon, however, there will be further clarity on the Public Protector’s role. Both Madonsela and Motsoeneng have indicated they will appeal points of the judgment. On Wednesday, the Public Protector reportedly told reporters the Constitutional Court is best placed to determine her powers under law. Motsoeneng’s lawyer still claims the SABC COO never lied about his qualifications.

While it might be a drawn out process, the appeal will provide further clarity on how reports from the Public Protector are to be treated by the state. But the Schipper judgment already sets a high bar for Zuma to prove he shouldn’t comply with Madonsela’s remedial action. DM

Photo: SABC COO Hlaudi Motsoaneng. (Steven Lang)

Read more:

• The Powers of the Public Protector: What the High Court actually found on Daily Maverick