Economic Freedom Fighters v Speaker of the National Assembly, President Jacob Zuma and Public Protector Case CCT 143/15; Democratic Alliance v Speaker of the National Assembly, President Jacob Zuma, Minister of Police, Public Protector with Corruption Watch as Amicus Curiae – Case CCT 171/15 (31 March 2016) – read judgment
The Constitutional Court of South Africa last week handed down a damning judgement against the ruling head of the African National Party (the ANC). Despite this judgment, parliament voted not to impeach him. The ANC defeated the opposition-sponsored motion, saying Mr Zuma was not guilty of “serious misconduct”.
See University of Cape Town law professor Richard Calland’s article on the consequences of this ruling for President Zuma.
Background to the Constitutional Court proceedings
The Public Protector is an institution set up under the South African Constitution to ensure good governance and “strengthen constitutional democracy in the Republic”. She investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at President Zuma’s Nkandla private residence, and she concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.
For well over a year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Therefore the EFF and the DA took these applications agains the National Assembly and the President, arguing that the President should be ordered to comply with the remedial action.
The Court’s Deliberations
Since the South African state is only under an obligation to provide security for the President at his private residence, any installation that has nothing to do with the President’s security amounts to undue benefit or unlawful enrichment to him and his family and must therefore be paid for by him. In reasoning her way to the findings, the Public Protector said that President Zuma had acted in breach of his constitutional obligations not to act in any way as to expose himself to any situation involving a conflict between his official responsibilities and his private interest. He had also violated the provisions of the Executive Ethics Code. The President is under a duty to ensure that State resources are only used for the advancement of State interests.
Mogoeng CJ, giving the unanimous judgement of the court, took some time to explain the office of the Public Protector, since it is a fairly new institution, and one that differs from its predecessors such as the Advocate General or the Ombudsman. The Constitutional democracy brought with it the office of the Public Protector, which is
supposed to protect the public from any conduct in State affairs or in any sphere of government that could result in any impropriety or prejudice..
The Public Protector is thus 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.
The holder of this office has very wide powers that “leave no lever of government power above scrutiny, coincidental “embarrassment” and censure.
The remedial action that was taken against the President has a binding effect. This flows from the fact that the cattle kraal, chicken run, swimming pool, visitors’ centre and the amphitheatre were identified by the Public Protector as non-security features for which the President had to reimburse the State. (para 76)
However, both the National Assembly and the Minister of Police found that elements of the upgrades identified by the Public Protector as unnecessary for the President’s security were in fact security features for which the President was not to pay. The Court acknowledged that constitutionally speaking the National Assembly and the President were perfectly entitled to challenge the findings of the Public Protector. This is an aspect of the separation of powers. But the National Assembly erred in not challenging the Public Protector’s report; instead, it purported to effectively set aside her findings and remedial action, thus usurping the authority vested only in the judiciary.
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.
Consistent with the South African Constitution, the Court therefore made an order that the President’s failure to comply with the remedial action taken against him by the Public Protector is inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the Public Protector; and the duty to assist and protect the office of the Public Protector to ensure its independence, impartiality, dignity and effectiveness.