Constitutional Court judgment: EFF v Speaker; DA v Speaker


31 March 2016 – This morning the Constitutional Court of South Africa handed down a judgment of major significance for President Jacob Zuma and the Public Protector’s Nkandla report. We have already previewed the case and reported on the hearing.

Chief Justice Mogoeng’s unanimous judgment is scathing of the conduct of the President, and of the National Assembly, in failing to act on the Public Protector’s report, which the Court finds was binding. Most tellingly, the Court has ordered that the President breached the Constitution – which is a basis for his impeachment in terms of section 89(1). The Court’s order also requires the National Treasury to determine the sum that Zuma must repay for the unlawful Nkandla upgrades.

The Court’s full order is as follows:

1. This Court has exclusive jurisdiction to hear the application by the Economic Freedom Fighters.

2. The Democratic Alliance’s application for direct access is granted.

3. The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding.

4. The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.

5. The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only.

6. The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.

7. The National Treasury must report back to this Court on the outcome of its determination within 60 days of the date of this order.

8. The President must personally pay the amount determined by the National Treasury in terms of paragraphs 5 and 6 above within 45 days of this Court’s signification of its approval of the report.

9. The President must reprimand the Ministers involved pursuant to paragraph 11.1.3 of the Public Protector’s remedial action.

10. The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.

11. The President, the Minister of Police and the National Assembly must pay costs of the applications including the costs of two counsel.

The full judgment is now available on SAFLII.