Constitutional Court preview: EFF v Speaker; DA v Speaker

8 February 2016 – Tomorrow, the Constitutional Court of South Africa hears Economic Freedom Fighters v Speaker, National Assembly; Democratic Alliance v Speaker, National Assemby CCT 143/15; 171/15 (court papers), the second case in the Court’s first term of 2016, and by far its most politically charged.

Date of hearing:  Tuesday, 9 February 2016

Issue:  What is the legal effect of the Public Protector’s reports, and did the President comply with the obligations imposed by them?

Background:  On 19 March 2014, the Public Protector released a Report that investigated and made several findings about President Zuma’s R200m+ upgrades to his Nkandla home. The Report found that the upgrades were excessive, improperly benefitted the President and his family, and should be in part repaid. The Report also found that the President had failed to protect state resources and acted inconsistently with the requirements of his office according to the Executive Members Ethics Code. Prior to the Public Protector’s releasing her Report, the Department of Public Works had released a Task Team Report finding that all expenses concerning the Nkandla upgrades were necessary to ensure the President’s security. Due to this discrepancy, the National Assembly convened an ad-hoc committee to investigate the Nkandla matter. After opposition parties withdrew from this committee, it absolved President Zuma of any wrongdoing and said he was not liable to repay any of the costs of the upgrades.

After many months of heated parliamentary wrangling, the Economic Freedom Fighters, and subsequently the Democratic Alliance, filed suit in the Constitutional Court asking for a ruling on the legal status of the Public Protector’s findings. It is unusual for a matter to be taken to the Constitutional Court directly, rather than by way of an appeal.  But here, as it happens, we already have High Court and Supreme Court of Appeal (SCA) judgments on this very issue. This is because, at around the same time that the Public Protector investigated the Nkandla upgrades, she also investigated the alleged misconduct and invalid appointment of the COO of the SABC, Hlaudi Motsoeneng. She released a report on this issue, which the DA took to court to have enforced. The legal effect of the Public Protector’s powers were also disputed, and two conflicting rulings were issued by the High Court and the Supreme Court of Appeal.

Both courts agreed that the Public Protector’s reports cannot be merely ignored, but, beyond that, they differed significantly. The High Court held that the Public Protector makes recommendations that other officials may depart from, provided they give rational reasons for their non-compliance. But the SCA imposed a much stricter standard. It held that the Public Protector’s findings are automatically binding, and can be departed from only if and when they are reviewed and set aside by a court. The SCA reasoned that section 182(1)(c) of the Constitution grants the Public Protector to ‘take appropriate remedial action’ against state institutions and that treating her reports as mere recommendations would denude the powers of the office and defeat its very purpose.

Things to watch:  The Nkandla saga has been a significant topic of legal and media discourse for some years now, and this may very well be the case that brings it to a close. Even more importantly, this case offers the chance for the Court to spell out the powers of a pivotal institution designed to guard against maladministration and misconduct by public officials. The ramifications of this judgment will long out-live the personal and political consequences for President Zuma.

The key issue is how the Court construes the legal effect of the Public Protector’s findings and reports. There are broadly three interpretive options open to the Court.  First, the Court could find for the President and conclude that the Public Protector’s reports are mere recommendations and can be ignored without explanation. This would rely on a literal reading of the Public Protector Act (pdf), which refers to the Public Protector’s power to make ‘recommendations’ about how to deal with the matters she has investigated. The Court may find that, had parliament intended these powers to be more than recommendations, it would have said so. The difficulty with this interpretation is that, as the SCA said, this may make the Public Protector a ‘toothless’ watchdog.

Second, the Court could find, much like the High Court, that indeed these findings are recommendations, but nevertheless require that reasons be provided by any government agency that decides not to comply with them. The effect would be to impose an obligation on that agency to explain and justify its rejection of the Public Protectors findings. If the reasons for non-compliance are irrational, or made in bad faith, such non-compliance may be reviewed by a court. The findings of the Public Protector would thus form the factual basis of a broader court challenge, based on some other legal principle sourced in administrative law, such as rationality. Arguably, this approach, by giving government officials some latitude in the face of the Public Protector’s recommendations, makes fair allowance for the policy discretion granted to the executive arm of government, and succeeds in respecting the separation of powers. On the other hand, concerns about the Public Protector being ‘toothless’ may still apply.

Finally, the Court could side with the SCA in the SABC matter and rule that the Public Protector’s findings are automatically binding and must be complied with unless set aside by a court of law. This would depend on interpreting the Public Protector’s constitutional powers in light of the institution’s purpose, namely to provide robust oversight over maladministration and corruption. The danger with this approach is that it by and large ignores the wording of the Public Protector Act, which says only that she can make ‘recommendations’, and deprives government of any real discretion in implementing the Public Protector’s Reports. This may not be desirable, considering that institutions outlive particular leaders: although the incumbent, Thuli Madonsela, is widely admired for her independence and effectiveness, what happens if she is replaced with a lackey of the ruling party? The office could then be used to target opposition parties, political enemies, and organs of state that the ruling party does not control, and force upon them unreasonable ‘recommendations’ that they have little choice but to implement.

The solution may be some sort of middle path between the second and third options I have just sketched, recognising a standard that is higher than rationality but lower than automatic bindingness. Either way, the constitutional and legislative text is not exactly clear, and the Constitutional Court will be called upon to make a judgment call with far-reaching political and legal consequences. The courtroom is sure to be packed tomorrow.

Khomotso Moshikaro

About Khomotso Moshikaro

Khomotso is a researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a centre of the University of Johannesburg. He has an LLB from the University of Pretoria and a BCL and MSc from the University of Oxford, where he studied as a Rhodes Scholar. In 2013 he clerked at the Constitutional Court of South Africa. Next year he begins a PhD at the University of Cape Town.