Being uninformed is so last season
22 November 2017 13:15 (South Africa)
Opinionista Pierre de Vos

Concourt’s Nkandla judgment: What the law says

  • 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.

The decision of the Constitutional Court in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others affirms several well-entrenched constitutional principles relating to the duties of the president and Parliament. The judgment also provides clarity on the powers of the Public Protector and the binding nature of the remedial action imposed by her office. The judgment may raise several questions for readers who are unfamiliar with the finer points of constitutional law or readers who may not have studied the judgment carefully. In what follows I attempt to answer some of those questions.

Question 1: Which aspect of the judgment was potentially most damaging to President Jacob Zuma’s reputation?

To me, the confirmation by the Constitutional Court of the finding by the Public Protector that the president acted in breach of his obligations in terms of section 96 of the Constitution when he failed to take any steps to stop the state-sponsored nonsecurity-related upgrades of his private house is the most damaging aspect of the judgment. Section 96 states that:

(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.

(2) Members of the Cabinet and Deputy Ministers may not...

(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.”

The Constitutional Court pointed out that the Public Protector’s finding on the violation of section 96 “was based on the self-evident reality that the features identified as unrelated to the security of the president, checked against the list of what the South African Police Service (SAPS) security experts had themselves determined to be security features, were installed because the people involved knew they were dealing with the president.”

The Constitutional Court spelt out the clear obligation of the president to take action to stop a culture of “name-dropping”, used to personally benefit the president, his friends (like the Guptas) and his family. The president must have known that officials would wish to please him or ingratiate themselves with him by enhancing the renovations at his private home at Nkandla. As the Constitutional Court explained:

When some government functionaries find themselves in that position, the inclination to want to please higher authority by doing more than is reasonably required or legally permissible or to accede to a gentle nudge by overzealous and ambitious senior officials to do a ‘little wrong’ here and there, may be irresistible. A person in the position of the president should be alive to this reality and must guard against its eventuation. Failure to do this may constitute an infringement of this provision.”

The court thus concluded that there was a direct connection between the position of president and the reasonably foreseeable ease with which the specified nonsecurity features, asked for or not, were installed at the private residence.

It found that the installation of nonsecurity-related features amounted to “undue enrichment” by the president. The court further noted that because the president allowed nonsecurity features to be built at his private residence at government expense, this exposed him to a “situation involving the risk of a conflict between [his] official responsibilities and private interests”.

The potential conflict was heightened by the fact – established by the Public Protector in her report – that the president was aware of the construction of nonsecurity-related features at his home and that he would not have to pay for these features but nevertheless did not lift a finger to stop this unlawful expenditure as he was constitutionally obliged to do.

The court reminded us that it would not be an excuse for the president to say that he was not responsible for decisions about the renovations at his home or to blame officials for adding nonsecurity-related features while the president – powerless and unable to do as much as pick up a telephone to ask what the hell was going on – looked on helplessly:

On the one hand, the president has the duty to ensure that state resources are used only for the advancement of state interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise.”

It is for this reason that the Public Protector found that the president and his family were unduly enriched as a result of the nonsecurity features and imposed the remedial action which the president failed to implement. It was also for this reason that the Public protector found that the president had acted in breach of his Constitutional obligations as set out in section 96 of the Constitution.

Question 2: Did the Constitutional Court find that the president had deliberately failed to uphold, defend and respect the Constitution as he was required to do by section 83(b) of the Constitution?

The Constitutional Court did find that the president had failed to uphold, defend and respect the Constitution as the supreme law of the land in contravention of section 83(b) of the Constitution. The Court also found that the president had failed to assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by failing to comply with her remedial action (as he was constitutionally required to do in terms of section 181(3) of the Constitution).

However, the court concluded that the president might have been following wrong legal advice and might therefore have acted in good faith when he refused to implement the remedial action imposed by the Public Protector. This means that there was no finding in this regard of a deliberate flouting of the law or the Constitution.

In this respect, the breach of the Constitution – based on a possible legal confusion – was far less damaging to the reputation of the president than the finding that the president had been enriched by failing to adhere to his obligations as set out in section 96 of the Constitution.

Question 3: Did the court find that the remedial action imposed by the Public Protector was always binding?

The Constitutional Court found that it was imperative for the proper functioning of the office of the Public Protector that she be empowered to provide effective remedies. It is for this reason that the Constitution imposed an obligation on organs of state to assist and protect the Public Protector so as to ensure her dignity and effectiveness.

The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly. The power to take remedial action that is so inconsequential that anybody, against whom it is taken, is free to ignore or second-guess, is irreconcilable with the need for an independent, impartial and dignified Public Protector and the possibility to effectively strengthen our constitutional democracy.”

However sensitive, embarrassing and far-reaching the implications of her report and findings, she is constitutionally empowered to take action that has that effect, if it is the best attempt at curing the root cause of the complaint. Remedial action must therefore be suitable and effective.

This means that it is up to the Public Protector (not up to the person on whom the remedial action is imposed) to decide whether to impose binding remedial action or to provide another remedy that is not necessarily binding. It is through the language used by the Public Protector and the context within which it is used that we will know whether the specific remedy is binding or not.

In this sense, the remedial action is not much different from the remedies imposed by a court or other tribunal.

Question 4: Given the fact that the remedial action imposed on the president was biding, was it impermissible for the president to ask the Minister of Police to determine whether he was liable for any of the cost of the renovations done at taxpayers’ expense at Nkandla?

The president was permitted to ask the Minister of Police (or anyone else) to ascertain whether the Public Protector’s findings were correct, but only in order to determine whether to challenge the legality of the report in a court.

However, given that no judicial review of the report was planned, it was not really necessary to investigate whether the specified nonsecurity features were in fact nonsecurity features. Features bearing no relationship to the president’s security had already been identified. If any investigation were to be embarked upon, to determine whether some installations were nonsecurity in nature, it was to be in relation to those additional to the list of five for which some payment was certainly required. 

What the president was not permitted to do (but what he did) was to ask the Minister of Police to determine whether he was at all liable to pay for the features identified as nonsecurity-related by the Public Protector and then to use the report done by the Minister of Police as a justification for not complying with the binding remedial action imposed by the Public Protector. As the Constitutional Court explained:

Emboldened by the minister’s conclusion, and a subsequent resolution by the National Assembly to the same effect, the president neither paid for the nonsecurity installations nor reprimanded the ministers involved in the Nkandla project. This noncompliance persisted until these applications were launched and the matter was set down for hearing. And this is where and how the Public Protector’s remedial action was second-guessed in a manner that is not sanctioned by the rule of law. Absent a court challenge to the Public Protector’s report, all the president was required to do was to comply.”

Question 5: Why did the Constitutional Court find that the National Assembly had flouted its constitutional obligations to hold the president accountable?

The Constitution imposes a duty on the National Assembly to scrutinise and oversee executive action and to hold the president accountable for his or her actions. This the National Assembly failed to do.

Just like the president, the National Assembly was permitted to scrutinise the report of the Public Protector in order to determine the correctness of the report with a view to have the report reviewed by a court. Such action would be appropriate because “since more was required of the National Assembly than merely rubber-stamp [the Public Protector’s] report… In principle there is nothing wrong with wondering whether any unpleasant finding or outcome is correct and deploying all the resources at one’s command to test its correctness.”

However, the National Assembly had a constitutional duty to scrutinise the president’s conduct as demanded by section 42(3) and reported to it by the Public Protector in terms of section 182(1)(b) of the Constitution. It was duty-bound to hold the president accountable “by facilitating and ensuring compliance with the decision of the Public Protector”. 

The exception would be where the findings and remedial action are challenged and set aside by a court, which was of course not done in this case. The Constitutional Court was highly critical of the National Assembly in this regard.

[T]here was everything wrong with the National Assembly stepping into the shoes of the Public Protector, by passing a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and ‘remedial action’.  This, the rule of law is dead against. It is another way of taking the law into one’s hands and thus constitutes self-help… By passing that resolution the National Assembly effectively flouted its obligations. Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect or has been set aside through a proper judicial process. The ineluctable conclusion is therefore that the National Assembly’s resolution based on the minister’s findings exonerating the president from liability is inconsistent with the Constitution and unlawful.”

Question 6: Why did the Constitutional Court not order the National Assembly to impeach the president or to take other action to hold the president accountable?

Sections 42(3) and 55(2) of the Constitution impose a duty on the National Assembly to hold the president accountable, but these sections do not define the strictures within which the National Assembly is to operate when doing so. It is not for the court to tell the National Assembly how to do this – as long as the National Assembly does not undermine or trump the mandate of the Public Protector.

The court expressed respect for the separation of powers between the judiciary (the unelected branch) and the elected legislature and stated:

It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the Executive accountable and fulfilling its oversight role of the Executive or organs of state in general. The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly.”

The reason why the court will not tell the National Assembly how to hold the president accountable is that courts should not interfere in the processes of other branches of government unless otherwise authorised by the Constitution. It is for this reason that the Constitutional Court declined to prescribe to Parliament what structures or measures to establish or employ to hold the president accountable.

Question 7: Why does the Constitutional Court say that the Public Protector is a pivotal institution in South Africa’s constitutional democracy?

The office of the Public Protector was created to “strengthen constitutional democracy in the Republic”. The institution of the Public Protector is thus “pivotal to the facilitation of good governance in our constitutional dispensation”. The Constitutional Court explained that in essence the Public Protector acts as the champion of the poor, the marginalised and the vulnerable.

Opposition to the actions of the Public Protector – coming, as they often do, from the politically and economically powerful – are essentially anti-poor and elitist. The MPs in the National Assembly who vilified the office of the Public Protector and attempted to undermine her powers may have not realised to what extent they were revealing their allegiances to the rich and powerful.

The Constitutional Court described the Public Protector as “one of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance”. Only those who are opposed to good governance would be opposed to the bona fide and diligent actions taken by that office.

But there is another reason, relating the the lack of access to justice in South Africa, that renders the office of the Public Protector so important. As the Constitutional Court explained:

The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the Public Protector. She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance.” 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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