The Public Protector of the Republic of South Africa investigated allegations of improper conduct or irregular expenditure relating to security upgrades at the Nkandla private residence of the President of the Republic. Her report concluded that the President failed to act in line with some of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources for improvements that were non-security upgrades. She accordingly recommended remedial actions, and directed the President, with the assistance of specified State officials, to work out and pay a portion that was fairly proportionate to the undue benefit that had accrued to him and his family, and to reprimand the Ministers who were involved in the project for specified improprieties. The Public Protector’s report was submitted to the President, but also to the National Assembly in line with the latter’s constitutional obligation to hold the President accountable. More than a year later, however, neither did what they were required to do in terms of the remedial action. Rather, a report by the Minister of Police and a resolution of the National Assembly absolved the President of liability, as a result of which the President did not comply with the Public Protector’s remedial action.
In addition to determining that the Constitutional Court had exclusive jurisdiction to hear the suit, the court determined the following issues:
- What is the legal status or effect of the totality of the remedial powers vested in the Public Protector?
- Whether President Jacob Zuma breached his obligations in terms of sections 83, 96, 181 and 182 of the Constitution when he failed to comply with the remedial action
- Whether the National Assembly’s actions were lawful
RESOLUTION OF THE ISSUES
The language, context and purpose of sections 181 and 182 of the Constitution point to the legal status of the Public Protector’s power to take ‘appropriate remedial action’. They require the Public Protector to be independent and subject only to the Constitution and the law, and to be assisted and protected by organs of State. The obligation to assist and protect the Public Protector so as to ensure her dignity and effectiveness is relevant to the enforcement of her remedial action. The Public Protector would arguably have no dignity and be ineffective if her directives could be ignored willy-nilly.
However, the legal effect that an appropriate remedial action has in a particular case depends on the nature of the issues investigated and the findings. Of cardinal significance about the nature, exercise and legal effect of the remedial power is the following:
- The primary source of the power to take appropriate remedial action is the supreme law (Constitution) itself, whereas the Public Protector Act is but a secondary source;
- It is exercisable only against those that she is constitutionally and statutorily empowered to investigate;
- Implicit in the words “take action” is that the Public Protector is herself empowered to decide on and determine the appropriate remedial measure. And “action” presupposes, obviously where appropriate, concrete or meaningful steps. Nothing in these words suggests that she necessarily has to leave the exercise of the power to take remedial action to other institutions or that it is power that is by its nature of no consequence;
- She has the power to determine the appropriate remedy and prescribe the manner of its implementation. “Appropriate” means nothing less than effective, suitable, proper or fitting to redress or undo the prejudice, impropriety, unlawful enrichment or corruption, in a particular case;
- Only when it is appropriate and practicable to effectively remedy or undo the complaint would a legally binding remedial action be taken;
- Also informed by the appropriateness of the remedial measure to deal properly with the subject-matter of investigation, and in line with the findings made would a non-binding recommendation be made or measure be taken; and
- Whether a particular action taken or measure employed by the Public Protector in terms of her constitutionally allocated remedial power is binding or not or what its legal effect is, would be a matter of interpretation aided by context, nature and language.
The Public Protector’s remedial action might at times have a binding effect. When it is binding, compliance is not optional, whatever reservations there might be about its fairness, appropriateness or lawfulness. For this reason, the remedial action taken against those under investigation cannot be ignored without any legal consequences. It has legal consequences and must be complied with or acted upon. To achieve the opposite outcome lawfully, an order of court would have to be obtained.
The remedial action taken against the President was to determine - with the assistance of specified state departments - (i) what other non-security features should be added to the list already identified by the Public Protector; (ii) the reasonable costs of the non-security upgrades that he is to pay; (iii) to provide the National Assembly with his comments and actions he was to take on the Public Protector’s report within 14 days of the receipt of the report; and (iv) to reprimand the Ministers involved for the misappropriation of state resources under their watch. They had binding effect. These definite steps did not require the parallel investigation that the President ordered. Of course, this is no absolute bar to an investigation being ordered by the President if he had reason to doubt the correctness of the unfavourable findings against him. After all, what was required of the President was not a mechanical response to remedial action, as that would be irreconcilable with the logic and rights exercisable by anybody adversely affected by an unpleasant determination.
The President was entitled to inquire into the correctness of those aspects of the report that he disagreed with. That inquiry could well lead to a conclusion different from that of the Public Protector. And such a contrary outcome is legally permissible. The question would then be how the President responds to the Public Protector’s report and the remedial action taken, in the light of other reports sanctioned or commissioned by him.
The President mandated the Minister of Police to investigate and report on ‘whether the President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports’. The National Assembly also commissioned the Minister’s report. The upshot was a finding that elements of the upgrades that the Public Protector identified as non-security features were determined to be security features for which the President was not to pay. The President was exonerated from the already determined liability.
The purpose of the Public protector’s remedial action was not to verify the correctness thereof, but primarily, to help the President determine what other non-other security features should be added to the list identified by the Public Protector, and to have the President collaborate with National Treasury to determine the reasonable monetary value of those upgrades. The end results of the two streams of investigative processes were mutually destructive. The President should have done much more than show contentment with the correctness of his own report. He should have approached the courts. Only after the courts have set aside the findings and remedial action taken by the Public Protector would it have been open to the President to disregard the Public Protector’s report. He has not challenged that report. He appears to have been content with the apparent vindication of his position by the Minister’s favourable recommendations and considered himself to be lawfully absolved of liability. Emboldened by the Minister’s conclusion and a subsequent resolution of the National Assembly to the same effect, the President neither paid for the non-security upgrades nor reprimand the Ministers involved in the Nkandla project. This amounted to second-guessing the Public Protector’s remedial action in a manner that was not sanctioned by the rule of law.
The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers. The second respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound to, but did not, assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action. He might have been following wrong legal advice and therefore acting in good faith. But that does not detract from the illegality of his conduct regard being had to its inconsistency with his constitutional obligations in terms of sections 182(1)(c) and 181(3) read with 83(b).
The Public Protector submitted her report, together with its findings and remedial action, to the National Assembly for a purpose – to hold the President accountable and ensure that his compliance with the remedial action is enabled. The National Assembly’s attitude was that the Public Protector could not prescribe what the National Assembly should or should not do. As such, it was not required to act on or facilitate compliance with the report. Accordingly, upon receipt of the report, it took steps under section 42(3) of the Constitution to determine the correctness of the Public Protector’s conclusions and remedial action. Broadly speaking, this is correct because the “scrutinize” in section 42(3) implies a careful and thorough examination or a penetrating or searching reflection.
The National Assembly was indeed entitled to seek to satisfy itself about the correctness of the Public Protector’s findings and remedial action before it could hold the President accountable in terms of its sections 42(3) and 55(2) obligations. These sections impose responsibilities so important that the National Assembly would be failing in its duty if it were to blindly or unquestioningly implement every important report that comes its way from any institution. Both sections 42(3) and 55(2) do not define the strictures within which the National Assembly is to operate in its endeavour to fulfil its obligations. It has been given the leeway to determine how best to carry out its constitutional mandate. Additionally, section 182(1)(b) read with section 8(2)(b)(iii) does not state how exactly the National Assembly is to “attend urgently” to or “intervene” in relation to the Public Protector’s report. How to go about this is all left to the discretion of the National Assembly but obviously in a way that does not undermine or trump the mandate of the Public Protector.
People and bodies with a material interest in a matter have been routinely allowed by our courts to challenge the constitutional validity of a law or conduct of the President, constitutional institutions or Parliament. The National Assembly and the President were in like manner entitled to challenge the findings and remedial action of the Public Protector. It would be incorrect to suggest that a mere investigation by the National Assembly into the findings of the Public Protector is impermissible on the basis that it trumps the findings of the Public Protector. Rhetorically, on what would they then base their decision to challenge the (Public Protector’s) report? Certainly not an ill-considered viewpoint or a knee-jerk reaction.
The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly. It is not for this Court to prescribe to Parliament what structures or measures to establish or employ in order to fulfil responsibilities primarily entrusted to it. Courts ought not to blink at the thought of asserting their authority, whenever it is constitutionally permissible to do so, irrespective of the issues or who is involved. At the same time, and mindful of the vital strictures of their powers, they must be on high alert against impermissible encroachment on the powers of the other arms of government.
That said, the National Assembly chose not to challenge the Public Protector’s report on the basis of the findings made by the Minister of Police and its last Ad Hoc Committee. Instead it purported to effectively set aside her findings and remedial action, thus usurping the authority vested only in the Judiciary. Having chosen the President to ensure government by the people under the Constitution, and the Public Protector Act which, read with the Constitution, provides for the submission of the Public Protector’s report to the National Assembly, it had another equally profound obligation to fulfil. And that was 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 read with section 8(2)(b)(i), (ii) and (iii) of the Public Protector Act.
The Public Protector could not have submitted her report to the National Assembly merely because she deemed it necessary or in the public interest to do so. In all likelihood she also did not submit it just because either the Speaker of the National Assembly or Chairperson of the National Council of Provinces asked her to do so. The high importance, sensitivity and potentially far-reaching implications of the report, considering that the Head of State and the Head of the Executive is himself implicated, point but only to one conclusion. That report was a high priority matter that required the urgent attention of or an intervention by the National Assembly. It ought therefore to have triggered into operation the National Assembly’s obligation to scrutinise and oversee executive action and to hold the President accountable, as a member of the Executive. Also implicated was its obligation to give urgent attention to the report, its findings and remedial action taken, and to intervene appropriately in that matter.
Mechanisms that were established by the National Assembly, flowing from the Minister’s report, may have accorded with its power to scrutinise before it could hold accountable. As will appear later, what will always be important is what the National Assembly does in consequence of those interventions. The Public Protector, acting in terms of section 182 of the Constitution read with sections 1, 3 and 4 of the Executive Members’ Ethics Act, had already investigated the alleged impropriety or relevant executive action and concluded, as she was empowered to do, that the President be held liable for specific elements of the security upgrades.
On a proper construction of its constitutional obligations, the National Assembly 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. Like the President, the National Assembly may, relying for example on the High Court decision in DA v SABC, have been genuinely led to believe that it was entitled to second-guess the remedial action through its resolution absolving the President of liability. But, that still does not affect the unlawfulness of its preferred course of action.
Second-guessing the findings and remedial action does not lie in the mere fact of the exculpatory reports of the Minister of Police and the last Ad Hoc Committee. In principle, 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, 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.
The findings and remedial actions taken by the Public Protector were binding unless set aside by a judicial order. Since neither had been set aside by a judicial order, the President was under constitutional obligation to comply with the remedial order and was in breach of the Constitution when he failed to comply. Likewise, the National Assembly was under constitutional obligation to hold the President accountable, and ensure that he complied with the remedial action. The National Assembly was in breach of the obligation when they failed to ensure the President’s compliance.