South Africa

South Africa

Nkandla ruling : Cons Court slams National Assembly

Nkandla ruling : Cons Court slams National Assembly

The National Assembly has failed its constitutional obligations to hold the executive to account and to oversee executive action for its role in the Nkandla saga. And so the Constitutional Court set aside as “inconsistent with the Constitution” and “invalid” the parliamentary resolution that absolved President Jacob Zuma from having to repay anything for the features identified as non-security upgrades by the public protector. By MARIANNE MERTEN.

For two years the Nkandla saga played itself out in various parliamentary ad hoc committees, which ultimately determined the president had nothing to repay as even the non-security upgrades identified benefits like the swimming pool, cattle kraal, chicken run, amphitheatre and visitors’ centre, were security features as determined by the police minister at the behest of the president. It was thought the National Assembly resolution to this effect late last year would finally put the public controversy over the R215 million taxpayer-funded security upgrades at the presidential rural Nkandla homestead to bed. It did not; the matter ended up in the Constitutional Court in February.

Chief Justice Mogoeng Mogoeng, in delivering a unanimous Constitutional Court judgement, said the National Assembly had the right to scrutinise the public protector findings to satisfy itself of the correctness of those remedial actions before holding the president to account. The National Assembly even could have decided to take the matter on review to court. But Parliament was not entitled to “second-guess” the public protector.

“There may have been nothing wrong with those parallel processes, but there was everything wrong with the National Assembly stepping into the shoes of the public protector,” said the chief justice with reference to the police minister’s exculpatory report, around which Parliament phrased the terms of references of its third and last Nkandla ad hoc committee and which the National Assembly adopted.

“This, the rule of law is dead against. It is another way of taking the law into one’s own hands,” said Judge Mogoeng, adding that by doing so the National Assembly flouted its constitutional obligations.

While National Assembly has the leeway to determine how best to carry out its constitutional obligations and determine the mechanisms to do so, this discretion could not subvert or undermine the public protector. The public protector had submitted the report to the National Assembly to ensure the president was held to account.

Central to this ConCourt ruling is Section 55(2) of the Constitution which states the National Assembly must provide for mechanisms “to ensure all executive organs of state in the national sphere of government are accountable to is and to maintain oversight of the exercise of national executive authority… any organ of state”.

In a detailed judgement endorsing the binding nature of the public protector’s findings and remedial action – unless taken to court for a review – the Constitutional Court effectively dismissed Parliament’s argument it was not required to facilitate compliance with the public protector as this meant the Chapter 9 institution to support democracy effectively dictated to it how to do its business.

Outlining the principles of the separation of powers, Judge Mogoeng said both the executive and legislature deserved the space to execute their constitutional functions, and while courts must be “on high alert” from interference, they must “not blink to assert their constitutional powers”.

While the mechanics of how to fulfil its constitutional role of oversight and holding the executive to account was up to the National Assembly, what mattered to the court was what Parliament did in consequence of this, which in this case was described as the “unlawfulness of its preferred course of action”.

Judge Mogoeng pointed out the public protector had already investigated the alleged impropriety and concluded the president was liable. This meant the National Assembly was “duty-bound” to hold the president accountable by facilitating compliance with the public protector findings. “It would have been different if (the public protector report) was challenged even by the National Assembly in court. This was not done.”

The ConCourt made no order on the National Assembly, expect to set aside as unlawful and inconsistent with the Constitution its resolution to absolve Zuma from the Nkandla debacle. However, the court also found the president’s action in this matter as inconsistent with the Constitution – and set out a 105-day time frame by which the determination of a reasonable percentage to be “personally” paid back by the president, and the actual payment, must be completed.

For Parliament, which was severely criticised by civil society organisations and opposition political parties for seeking to defend Zuma at all costs over the public protector Nkandla report, it is back to the drawing board. DM

Photo: Speaker of the National Assembly Baleka Mbete (R) and and National Assembly Deputy Speaker Lechesa Tsenoli field questions from journalists at a news conference at Parliament on Friday, 14 November 2014. Picture: Nardus Engelbrecht/SAPA.

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