By Lawson Naidoo
IN THE political storm — not yet a tsunami — following the judgment of the Constitutional Court in the Nkandla case, we should be careful not to lose sight of key constitutional principles the court clarified. This seminal, unanimous judgment cogently explains the supremacy of the Constitution, the separation of powers, the unique responsibility of the president towards the Constitution, and the responsibility of the president and the National Assembly in dealing with reports of the public protector.
The nub of the case was the status to be accorded to the findings and remedial action taken by the public protector in her report, Secure in Comfort. The court located the office of the public protector within the design of the Constitution — to provide an accessible recourse to citizens, "to protect the public from any conduct in state affairs … that could result in any impropriety or prejudice … unlawful enrichment and corruption".
It considered the powers and attributes accorded to it (independence, to exercise powers without fear, favour or prejudice), and the onus on other organs of state to assist and protect its independence, impartiality, dignity and effectiveness.
It concludes that it was intended to have wide-reaching powers, including that its remedial action be binding.
But the public protector’s powers are not unfettered. Remedial action and findings may be challenged by review in the courts if the subject of the action believes the protector has erred. To this end, it is permissible to inquire into the validity of the public protector’s report. This would not mean second-guessing the protector or running a parallel process. But such an inquiry, whether by Parliament or another organ of state, cannot of itself nullify a report of the public protector; only the courts can do that.
Cognisant of complaints of judicial over-reach into the business of the executive and Parliament being tantamount to an anti-majoritarian curb on the mandate given to elected representatives, the court clarified the foundational principle of the separation of powers. It did so little more than six months after a key meeting between the legislature and the judiciary called to defuse tension between these arms of state in the wake of the Al-Bashir debacle.
It outlined that the legislature, executive and judiciary are functionally independent, but the checks and balances on their exercise of power (to ensure accountability, responsiveness and openness) envisages that there will inevitably be some overlap. Chief Justice Mogoeng Mogoeng, noting that the Constitution bestows upon the courts the power to ensure all branches of government act within the law, stated that "courts should not interfere in the processes of other branches of government unless authorised to do so by the Constitution". The courts cannot therefore prescribe to Parliament and the executive how to execute their constitutional functions — the autonomy of other branches must be respected so long as they fulfil their constitutional responsibilities. It is when they fail to meet their constitutional obligations that the courts will assert their authority. That is the essence of a democracy founded on the supremacy of the Constitution.
It was therefore not open to the National Assembly effectively to over-rule the public protector’s findings and remedial action. It either had to take the report on judicial review if it disagreed with its findings, or ensure that the president (who is accountable to the National Assembly) implemented the remedial action outlined in the report. It did neither. Its decision to substitute its own findings for those of a constitutionally independent body was consequently "inconsistent with the Constitution and unlawful".
This provided the context for the court to intervene vis-à-vis Parliament.
What should Parliament have done? A committee chaired by the late Prof Kader Asmal conducted a review of Chapter Nine institutions in 2007, and recommended that more effective mechanisms be established to enable Parliament to engage with these bodies. Parliament has not properly considered this report and its recommendations.
Reports submitted to Parliament by Chapter Nine bodies, with the exception of the auditor-general, are rarely discussed by Parliament. The Human Rights Commission report on the killing of Andries Tatane is apposite. Its recommendations directed against the ministers of police and co-operative government have not been properly considered by Parliament — another failure to fulfil its constitutional obligations.
Parliament should now focus less on the dress code for MPs and when and how MPs can be thrown out of the house, and more on its core mandate of "scrutinising and overseeing executive action". The court invited it to do so when it said: "The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly". A debate on the Asmal report would be as good a place as any to start this process. Consideration should be given to establishing a dedicated standing committee for each Chapter Nine body, or one such committee for all. The example of the standing committee on the auditor-general should be emulated.
Despite advocate Jeremy Gauntlett’s plea to the court not to order that president Zuma infringed the Constitution, the chief justice ruled that section 172 of the Constitution compelled the court to "declare that any … conduct that is inconsistent with the Constitution is invalid". It made this order despite giving the president the benefit of the doubt, that he may have received poor legal advice and acted in good faith. It found that this did "not detract from the illegality of his conduct", which means that by failing to "uphold, defend and respect the Constitution" the president is in breach of his oath of office.
It is instructive to recognise that the court took the unusual step of itself overseeing the order’s implementation. The Treasury must report to the court, which will then approve the amount to be paid by the president. The conclusion to be drawn is that the court was leaving nothing to chance. In the light of what had transpired in this dirty saga, who else could the court trust to ensure that the president does indeed pay back the money?
While the executive and legislature have fallen short of the standards of probity required by the Constitution, we can be proud of the judiciary and the office of the public protector. The rule of law has been strengthened immeasurably and the independence of the judiciary affirmed.
Thuli Madonsela’s tenure ends in a few months and she leaves the office significantly stronger than when she assumed office seven years ago. That is the legacy of her unwavering commitment to doing what the Constitution requires her to do.
This article was first published in Business Day Live dated 4 April 2016.