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27 July 2017 06:41 (South Africa)
Opinionista Pierre de Vos

Nkandla: All is not lost

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

There is an argument to be made that it will be more appropriate and effective to respond politically – instead of legally – to the manner in which President Jacob Zuma has dealt with the Nkandla scandal. The courts alone cannot hold politicians accountable. Voters have a pivotal role to play – both in the periods between elections and at the ballot box – in holding politicians ultimately accountable. However, if the legal route is pursued, there may be both procedural and substantive grounds on which to challenge the executive’s response to the Public Protector’s report on Nkandla.

The Constitutional Court has not yet provided a definitive answer to the question of whether the findings of the Public Protector and the remedial action imposed by that office in terms of the Constitution, the Public Protector Act and the Executive Members Ethics Act are legally binding. Neither has our top court provided any guidance on when – if ever – such findings and remedial action can be ignored by those affected by the findings and tasked with implementing them.

The Western Cape High Court did provide preliminary answers to these questions in its judgment in Democratic Alliance v SABC and Others. Until the Constitutional Court clarifies the matter, the High Court judgment must guide any legal analysis of the Public Protector’s powers and the legal status of any remedial action imposed by her office.

The High Court held that the findings and remedial action ordered by the Public Protector are not directly binding and enforceable. However, it also held that the findings and remedial action imposed by the Public Protector cannot be ignored.

[T]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… an organ of state cannot ignore the findings and remedial action of the Public Protector.”

The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.

At the very least the organ of state must have acted rationally in declining to implement the findings and remedial action of the Public Protector. To decide whether a decision not to implement the findings and remedial action are rational and therefore lawful, “the underlying purpose of the Public Protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice” – must be considered.

In other words, you should ask whether there is a rational relationship between the need on the part of an organ of state to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice and the decision by that organ of state not to implement the findings and remedial action of the Public Protector.

Usually rationality is not a difficult legal standard to meet. But the manner in which the High Court phrased the rationality test in dealing with the non-implementation of Public Protector reports would make it very difficult for an organ of state to justify a decision not to implement the findings and remedial action. This is because it will be very difficult to show that there is a rational link between the decision of the executive not to implement the findings and remedial action imposed on the one hand, and its duty ensure effective and fair government free from corruption or maladministration on the other.

The executive will in effect have to show that it was necessary to ignore the Public Protector’s report in order to ensure effective and fair government free from maladministration and corruption. Showing that a different decision-maker could have reached a different decision from that reached by the Public Protector would not suffice.

In the absence of any evidence that the Public Protector acted in bad faith or misconstrued her powers it is not easy to see how the executive will manage to convince a court it had acted rationally (and hence lawfully) when it ignored the findings and remedial action of the Public Protector.

In terms of the Constitution and the Executive Members Ethics Act the ultimate obligation to deal with the findings and remedial action imposed by the Public Protector in her Nkandla report lies with the president. It does not lie with any cabinet minister whom the president appoints and can fire at will.

If it is assumed for the moment that the High Court judgment dealing with the powers of the Public Protector is correct, the president would have to show that “cogent reasons” exist that allows him to ignore the findings and remedial action of the Public Protector on Nkandla. It is unclear whether such reasons indeed exist.

First, the Public Protector ordered that the president pay a reasonable amount of the cost of the non-security related upgrades at Nkandla “as determined with the assistance of the National Treasury”. In other words, the president and the Treasury should have made a determination on the matter. This never happened. Instead the president tasked another Minister to determine if he needed to pay any amount and if so how much.

A procedural problem therefore arises because the president failed to involve the Treasury in the process and also failed (on the face of it) to take the decision as required – instead delegating the decision to the Minister of Police. Thus far no cogent reasons have been provided for failing to involve the Treasury as prescribed. Furthermore, no cogent reasons have thus far been advanced for why the president abdicated his responsibility to determine the amount to be paid “in consultation with the Treasury”.

There are, of course, pressing political reasons for the president to appear to delegate the decision on how much to pay his colleagues. It places a symbolic distance between the president and a potentially unpopular decision to absolve him from any financial responsibility for Nkandla. Good politicians always manage to get others to take responsibility for unpopular decisions which may ultimately only be in their own best interest. But this would not constitute a cogent reason to justify ignoring the Public Protector’s report.

This seems to render the president’s response to the Nkandla report irrational and hence unlawful and invalid.

But even if this is not so, it is difficult to see how the decision by Police Minister Nathi Nhleko that President Zuma need not pay anything for the state-funded upgrades of his private home at Nkandla could be deemed rational.

The Minister did exactly what the High Court said was not allowed, namely he decided that the remedial action ordered by the Public Protector need not be implemented on the mere basis that he had a different view than the Public Protector about the appropriate findings and remedial action. As the Minister has not argued that the Public Protector acted in bad faith or misconstrued her powers, the decision that President Zuma did not benefit from the Nkandla upgrades and need not pay back any of the money therefore appears to be irrational and hence unlawful and invalid.

The findings and remedial action imposed by the Public Protector may, of course, itself be taken on review and a court can set aside such findings on the ground that due to a misinterpretation of the law or for some other reason the findings or remedial action are irrational.

At least two findings by the Public Protector regarding the Nkandla matter may be vulnerable to such a review, but unfortunately for the president it relates to findings that favour him. (Another body may of course request the court to review and set aside these findings in order to impose a far more onerous financial obligation on the president.)

First, the Public Protector found that while the claim made by President Zuma in Parliament that he and his family built and paid for everything at his private home, except for the security measures was not true, this may have been an honest mistake. The report thus found that there was no breach of Section 2 of the Executive Members Ethics Act as it may have been a bona fide mistake that the president had misled Parliament. It is not clear from the Public Protector's report on what rational basis this finding was made.

Given the fact that the president declined to provide the Public Protector with any information of how the non-security related aspects of Nkandla was financed (information which only the he could have provided) and given the fact that the extensive non-security related building at Nkandla (excluding the contested swimming pool, cattle kraal, chicken coop and amphitheatre) must have cost several million Rand, it is unclear how the president and his family could have financed it without assistance from a bank or from a third party.

(The president did provide a bond, which was apparently obtained to finance the building of the first houses at Nkandla more than ten years ago.)

Where a person being investigated by the Public Protector refuses to provide her office with information that could exonerate that person, it would be rational to assume that such evidence does not exist – unless there are cogent reasons for the refusal. It is, at best, unclear whether such cogent reasons were provided to the Public Protector or indeed, whether they exist. If asked to do so, a court may therefore find that this finding was not rational and hence that the president did lie to Parliament in breach of the Executive Members Ethics Code.

Second, the Public Protector found that if a strict legal approach were to be adopted, the president would have been liable for all cost relating to the security upgrade of his private home. This is so because his Nkandla home was declared a National Key Point in terms of the National Key Points Act. The Act requires the owner of the property to carry all cost relating to security improvements.

However, the Public Protector generously found that such a finding would be unfair to President Zuma. This is because, in terms of a Cabinet Policy adopted in 2003 all presidents and former presidents are entitled to reasonable security upgrades at their private homes, at their request or that of their office. However, President Zuma stated that no such request was ever made.

There are two problems with the findings of the Public Protector in this regard.

First, the separation of powers doctrine holds that the executive cannot amend legislation adopted by the legislature nor can it decide to ignore applicable law validly passed by Parliament. Where legislation imposes a duty on a member of the executive, a Cabinet policy cannot nullify such an obligation as this would, in effect, amount to the executive usurping the power of the legislature.

Second, the president said he never requested any security upgrades at his private home, which is a requirement for the Cabinet policy of 2003 to be activated. In the absence of a request from the president, it is therefore unclear how any rational person could have found that the policy nevertheless applied to the security upgrades at Nkandla. As no request was apparently made, the Cabinet Policy could not apply and the president may therefore be liable for the entire amount of the security upgrades as prescribed by the National Key Points Act.

There is therefore a plausible legal argument to be made that the Public Protector erred and acted irrationally – to the benefit of President Zuma. Although it is never easy to predict how a court would rule in a specific case, I would argue that there is at least a likelihood that, if asked, a court could review and set aside the decision by the Public Protector not to hold the president liable for the entire amount of the security upgrade as required by the National Key Points Act.

I hope I have made clear that while the electorate will ultimately decide whether to hold the executive and the party its members belong to accountable for the Nkandla scandal, there are several interesting legal arguments that could be presented to a court, in the event of the matter coming before it. And the worst case scenario for the president is that a court may rule that he is liable for the entire amount spent on security upgrades at his private home – not only the relatively small amount which he is liable for in terms of the Public Protector report. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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