Nevertheless, the EFF is asking the right fundamental legal questions: does the National Assembly have a constitutional obligation to act rationally upon the information placed before them by the Public Protector; and does the conduct of the President and other members of the Cabinet – both in relation to conduct identified by the report, as well as their reaction to the report – constitute a violation of their constitutional obligations?
In principle, only the Constitutional Court may decide that Parliament or the President has failed to fulfil those constitutional obligations, or make a final decision on whether conduct of the President is constitutional. It is presumably for this reason that the Constitutional Court deemed it in the interest of justice to allow the EFF direct access on this instance.
The Public Protector is mandated by section 182 the Constitution to “investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice” and to “report on that conduct” and “take appropriate remedial action” as regulated by legislation. In terms of the Public Protector Act (the Act), the Public Protector is competent “to endeavour, in his or her sole discretion, to resolve any dispute or rectify any act or omission by… mediation, conciliation or negotiation; advising, when necessary, any complainant regarding appropriate remedies; or any other means that may be expedient in the circumstances”. She is also competent to refer a matter to the appropriate public body or authority affected by the conduct under investigation; to report her findings to the National Prosecuting Authority (the NPA) if she is of the opinion that the facts disclose the commission of an offence; or, in terms of section 182(1) of the Constitution read with section 8(2)(b) of the Act, to submit her findings to the National Assembly. In this regard, she is competent to present her report to Parliament if she deems it necessary or in the public interest, or if the matter requires the National Assembly’s urgent attention or intervention, or if she is requested to do so by Parliament.
The Public Protector accordingly investigated the Nkandla matter and presented her report to the President and other members of the Cabinet as implicated parties. She also imposed remedial actions to be implemented by the President, the Secretary to the Cabinet, Minister of Police, National Commissioner of Police, Director-General of the Department of Public Works and Secretary for Defence. In addition, the Public Protector presented her report to the National Assembly as the findings clearly have a bearing on Parliament’s oversight function, requiring the National Assembly’s urgent attention or intervention. After all, her investigation did find at least 20 instances of either “unlawful action”, “improper conduct” or “maladministration” on the side of the National Executive. Her contention that the President’s “failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”, surely also required the National Assembly’s attention.
The National Assembly is elected to ensure government by the people under the Constitution and has a constitutional duty to ensure that all executive organs of state in the national sphere of government are accountable to it. In turn, the President must uphold, defend and respect the Constitution. He and other members of the Cabinet are accountable to Parliament for the exercise of their powers and the performance of the functions. Crucially, in terms of section 96 of the Constitution, members of the Cabinet and Deputy Ministers “must act in accordance with a code of ethics prescribed by national legislation…” and “may not… act in any way that is inconsistent with their office, or expose themselves to any situation involving a risk of a conflict between their official responsibilities and private interests… or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. Essentially, the Public Protector found that the President and National Executive violated this provision and as a result called on Parliament to take action.
However, instead of having her findings and remedial actions reviewed by a Court, the National Executive commissioned its own investigations by a variety of departments and entities reporting to the Cabinet – effectively investigating themselves. To no surprise, these entities found many reasons why the National Executive, apart from some officials, was not at fault. Parliament did not fare any better. Quite bizarrely, a majority of the National Assembly decided to rely primarily on the reports and submissions by Ministers and government departments without calling the Public Protector to make submissions on her findings. In effect, the National Assembly used the National Executive’s reports to refute and ignore the Public Protector’s findings in a manner that can hardly be described as rational.
In the Democratic Alliance case, the High Court held that although the findings and remedial action imposed by the Public Protector are not binding and enforceable (asserting that “if it was intended… the Constitution would have said so”), the Court did hold that it “does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject”. Section 181(3) of the Constitution provides that organs of state, through legislative and other measures, must assist and protect Chapter 9 institutions to ensure their independence, impartiality, dignity and effectiveness. Disregarding the Public Protector’s findings and remedial action in itself subverts the Public Protector’s powers and therefore violates section 181(3). Moreover, a decision by an organ of state to accept or reject the findings or remedial action of the Public Protector constitutes the exercise of a public power which must meet the minimum threshold requirement of rationality. As such, the High Court held that before an organ of state can reject any findings or remedial action of the Public Protector, it “must have cogent reasons for doing so, that is for reasons other than merely a preference for its own view”. Incidentally, given the fact that the High Court’s judgment relied primarily on precedent set by the Supreme Court of Appeal (the SCA) and the Constitutional Court, it is unlikely that either Court will disagree substantively with the High Court.
However, although the findings and remedial action imposed by the Public Protector may not be binding and enforceable, the National Assembly must, in terms of sections 42(3), 55, 181 and 237 of the Constitution, take rational action in terms of its own constitutional obligations. Failing to do so will not meet constitutional muster. Evidently, if the Public Protector reports her findings to the NPA, the latter must act without fear, favour or prejudice in deciding whether or not to proceed with prosecution, as required by the Constitution and National Prosecuting Authority Act. Obviously, the NPA is not bound by the Public Protector’s findings since a decision on whether or not to prosecute is the constitutional prerogative of the NPA. However, as shown in the Mdluli case, should the NPA make an irrational decision, it will be unlawful and set aside by a Court. The same logic applies when the Public Protector submits a clear case of wrongdoing to the National Assembly.
This case is not about a house, its remarkable security features, a specific person, or any political party. It is also not about the powers of the Public Protector. Rather, it goes to the heart of what it means to have accountable, responsive and open government as required by the Constitution – and what it takes to ensure such government. Hence, the EFF is doing what the Public Protector should have done – instituting judicial review proceedings to challenge Parliament’s and the National Executive’s failure to perform their respective constitutional obligations rationally, diligently and without delay. Either way, come February 2016, the National Assembly and the National Executive will have to justify their conduct to the Constitutional Court – and as the High Court said, only cogent and rational reasons will suffice.
Adv Johan Kruger, Director: Centre for Constitutional Rights