The case stems from the Public Protector’s directive for remedial action that the President, assisted by some government departments, should determine and pay a portion of the undue benefit that had accrued to the President and his family from his Nkandla retirement home. This, after non-security upgrades including a visitors’ centre, a swimming pool and a chicken run, were added to the residence. In addition, the President was directed to reprimand the Ministers involved in that project for their specific improprieties. The Public Protector’s Report was submitted to the President and the National Assembly for compliance with the remedial action. That did not happen until the EFF and the DA approached the Constitutional Court.

The principal question before the Court was the exact nature of the Public Protector’s power to order remedial action. On this, the Court held that the power of the Public Protector to take appropriate remedial action has legal effect and is binding. Accordingly, both the President and the National Assembly could not behave as though the remedial action was of no force, unless the remedial action had been challenged and set aside by a court of law. There was no such legal challenge mounted. The Court concluded therefore that the National Assembly’s resolution (based on the Minister’s findings), exonerating the President from liability, was inconsistent with the Constitution and consequently unlawful.

The Court also held that, by failing to comply with the Public Protector’s order, the President failed to “uphold, defend and respect” the Constitution in accordance with section 83, since the onus to repay the money was specifically imposed on him through the Public Protector’s constitutional power. The Court further declared the conduct of the President and the National Assembly inconsistent with their constitutional obligations. The National Assembly is tasked with overseeing the Executive and holding all organs of state accountable. The National Assembly’s failure to give urgent attention to – or intervene by facilitating – the President’s compliance with the remedial action constituted a breach of the National Assembly’s duty to scrutinise and oversee executive action.

The importance of the decision cannot be underscored enough. This decision – arising from a challenge by the two main opposition parties to the conduct of a sitting President and the governing party – is not just about party politics. The decision transcends too, the Public Protector’s role in a constitutional democracy and the fitness for presidential office of a specific individual… Rather, the decision places itself at the core of the nation’s foundational values. It answers the core questions of what it means to have Supremacy of the Constitution and the Rule of Law, and what the requirements are for accountable, responsive and open government. 

By Phephelaphi Dube: Legal Officer; Centre for Constitutional Rights

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