10 February 2016 – The excitement reverberating outside the courtroom yesterday did not detract from Adv Gauntlett’s very sobering address: ‘This is a delicate time in a dangerous year’, he told us. The moment has come to bring an end to this ‘protracted issue’ that has ‘traumatised the nation’. We were informed that President Zuma will now — after nearly two years of obstruction and delay — #PayBacktheMoney. But Adv Trengove’s response on behalf of the Economic Freedom Fighters was emphatic: ‘The President’s capitulation is gratifying — but not enough’, he stated. More is needed to vindicate the Constitution. More is needed to restore the integrity of the office of the Public Protector.
In what can only be euphemised as a ‘change of heart’ by the President, Adv Gauntlett conceded that the remedial action recommended in the Public Protector’s report on Nkandla was legally binding. And, barring a successful review to invalidate her findings, the instructions contained in her report must be implemented. This is of course the essence of what the Supreme Court of Appeal found in the SABC v DA case about Hlaudi Motsoeneng. Counsel for the Presidency went further, and threw his allies under the bus: he disavowed any reliance on the separate report prepared by the Minister of Police, Nathi Nhleko — a process set up by the Presidency and supported by Parliament in parallel to that being followed by the Public Protector.
But what then is the effect of the President’s volte-face on the issues pending before the Constitutional Court?
Adv Gauntlett strongly urged the court to restrict its findings by saying little about the powers of the Public Protector. But, if the Court does deal with the question, then counsel insisted that this should be on a narrow basis: Not all action by the Public Protector — not even all remedial action — is binding, he contended. Context matters.
But the Court cannot get away from deciding, at the very least, whether the recommendations made in the Public Protector’s Nkandla report are binding, even if it hesitates before making more general statements about the legal status of her powers. This is because, notwithstanding agreement between parties on the legal effect of the Public Protector’s remedial action, the Court must still satisfy itself that the President’s concession is a correct proposition of law (see here and here). The more interesting question is really whether the Court will venture findings that have effect beyond this case: For example, is all remedial action taken by the Public Protector binding?
Furthermore, even if the Court confines itself to finding that her action was binding here, which seems likely, the question that follows is whether it ought to determine whether the President and Parliament have failed to fulfill their constitutional obligations in their treatment of the Nkandla report. In this regard, Adv Gauntlett cleverly questioned the practical utility of issuing the very wide declaratory orders sought by the EFF and Democratic Alliance — that is, in the light of the President’s offer to pay. His real concern, it seems, is avoiding impeachment under section 89 for a ‘serious violation of the Constitution’; Adv Gauntlett said the Court’s order should not subject President Zuma to an unfair ‘provisional sentence’.
But Adv Trengove again stood his ground. While there is no evidence to suggest that the President had acted in bad faith, given that nearly two years have passed since the release of the Public Protector’s report, declarators are absolutely necessary to vindicate the Constitution and restore respect for the office of the Public Protector.
This is undoubtedly correct. The fact that the President and Parliament acted in bad faith (or ‘defiantly’ as was suggested by Adv Katz for the DA) is irrelevant. Whether constitutional obligations have been breached is an objective assessment that does not depend on the motive of any of the actors. And if it is accepted that the Public Protector’s remedial action must be complied with, then any non-compliance would be unlawful. Would nearly two years of neglecting to implement her instructions (without ever challenging them in court), together with the act of setting up a legally flawed parallel process, not constitute non-compliance? If so, the Court ‘must’ declare the impugned conduct to be unlawful. That is its constitutional mandate. This is what section 172 of the Constitution demands.