The ConCourt on Nkandla – emboldening a country in distress

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04 April 2016 – On Thursday, Chief Justice Mogoeng, on behalf of a unanimous Constitutional Court, handed down one of the most politically significant and spirited judgments since the dawn of democracy. A historic day for South Africans; a triumph for accountability and the rule of law. But as journalists scramble for comment and the frenzy to table yet another motion of no confidence in the President ensues, the legal significance of this judgment must not be lost. The Court has, after all, done so much more than require that President Zuma #PayBacktheMoney. It has affirmed that the Public Protector’s remedial powers are legally binding. It has affirmed its own mandate to declare conduct inconsistent with the Constitution unlawful. And it has invoked its supervisory powers to ensure that the President pays back what he owes.

The Public Protector’s remedial powers

The Constitutional Court has now confirmed that the remedial action required by Adv Madonsela on Nkandla was legally binding and, barring a successful review, had to be complied with. As we noted in our report on the hearing, this much was conceded by President Zuma’s counsel, Adv Jeremy Gauntlett SC; he accepted that in this case the instructions were legally binding.

But the Court has laid down a much broader precedent, significantly entrenching the Public Protector’s powers: if the Public Protector’s intends her remedial action to have binding force then this is conclusive – her instructions will be legally binding and must be complied with. So, while the Court accepted that there may be exceptions, these would be for the Public Protector herself to create. Where she instructs another state organ to act in a particular manner (such as the instruction to institute disciplinary proceedings against the COO of the SABC, Hlaudi Motsoeneng), compliance is not optional. But where she recommends or suggests a certain course of action – for example, if she advises the complainant that her best remedy would be to pursue litigation – then compliance would, in its nature, remain optional.

In reaching this conclusion, the Court adopted a ‘purposive approach’ to constitutional interpretation, reasoning that for the Public Protector’s office to realise its mandate to strengthen South Africa’s constitutional democracy by holding government officials to account – it is necessary that she can issue instructions with binding force. But does a purposive approach necessitate such a high standard?

As we suggested in our case preview, it was open to the Court to adopt a middle path between the relatively high, legally binding standard and the lighter standard of rationality. One that, for example, allows a person with good reasons – as opposed to merely rational reasons – to decide not to comply with remedial action. A possible justification would be that giving the Public Protector such enormous power means that, absent a costly and time-consuming judicial review, we are ‘stuck’ with bad or unfair findings. The Court’s preference for the legally binding standard was driven by the fact that the Public Protector would be toothless if those under investigation were at liberty to depart from her findings – especially since they are precisely the people who would evade them. It is simply inconsistent with the rule of law for government officials to pick and choose which legally authorised decisions are binding upon them: that is a job reserved for the courts.

Breach of the Constitution

President Zuma contravened the Constitution because he failed to implement the Public Protector’s instructions without having her report set aside by a court. At the hearing, Adv Gauntlett SC strongly urged the Court not to make a declaratory order about the President’s conduct, especially since he had already agreed to pay back the money. But once it is accepted that the Constitution has been violated, the Court has no choice but to declare the impugned conduct unlawful. This is what section 172 of the Constitution demands.

True, the Court said there is nothing wrong in itself with the President, or Parliament, embarking on a parallel investigatory process. But this, it made clear, is a mere means to decide whether to institute a court application to have the report set aside. It was not open to President Zuma – in the absence of a court challenge – to adopt the outcome of a process that would effectively override Adv Madonsela’s report. So when President Zuma said on Friday night that ‘the Court [found] that it was legally permissible for me to inquire into the correctness of the aspects of the report that I may disagree with’, he was massaging the truth. The Court made absolutely clear that he had acted unlawfully. It said only that if he had inquired into the correctness of the report to have it overturned in court, then his conduct would have been permissible.

The Court also said that, although President Zuma violated the Constitution, he ‘might’ have been acting in good faith, having been led astray by incorrect legal advice. President Zuma again tries to spin this finding to his advantage. He says that he confirms, ‘in line with the findings of both the Court and the Public Protector, that [he] did not act dishonestly or with any personal knowledge of the irregularities … with regards to the Nkandla project.’ But this is not what the Court found. It is not true that the Court said he did act honestly (that would be like Shrien Dewani saying that the High Court found that he was an innocent man: it only said that it could not be absolutely sure he was guilty of murder). It said only that the President ‘might’ have been acting honestly. So, as Pierre de Vos explained yesterday, the President’s response to the judgment contains several fibs. If anything, everything that President Zuma has done up until now points, ineluctably, to his defiance and wilful disregard for Adv Madonsela’s report. At any rate, lawyers involved in the case have said that, properly understood, ‘the judgment confirmed that the President is corrupt’.

The Court also made adverse findings against the National Assembly. It reiterated that there was nothing wrong in principle with Parliament establishing a parallel process to determine the veracity of the Nkandla report (and, in fact, such a process may have been practically required for a subsequent court challenge of the report). The Chief Justice explained that the Constitution gives ‘leeway’ to Parliament in deciding how best to exercise its constitutional duties to hold the Executive to account. So, although the Court cannot prescribe to Parliament the manner in which it performs these duties, it was nevertheless not open to it to adopt the outcome of its parallel process unless it had the Public Protector’s findings successfully set aside by a court.

The Court’s order

The Court could have limited its order to requiring that the President comply with the remedial action in Adv Madonsela’s report. But it went further: it imposed a structural interdict requiring that (i) the National Treasury report back to the Court within 60 days (with the amount to be repaid) and (ii) within 45 days thereafter, Zuma must finally #PayBacktheMoney. Following the fiasco of Police Minister Nathi Nhleko’s report, it is telling that Court chose not to give SAPS a role in determining what the President must pay. And, if Zuma does not meet the 45-day deadline, he will be required to answer, once again, to the judges of the Constitutional Court.

While this case has in many ways tested the resilience of our institutions in the face of unyielding pressure, government recalcitrance and even political scorn, it is sobering that by the time the order is fully implemented it will have taken more than seven years to bring the President to book. And even as the ANC continues to insult the nation’s intelligence with unconvincing deflections of blame, what must not be forgotten is that the Constitutional Court has made legal history.

Raisa Cachalia

About Raisa Cachalia

Raisa is a researcher at SAIFAC (South African Institute for Advanced Constitutional, Public, Human Rights and International Law), a centre of the University of Johannesburg. She has BA, LLB, and LLM degrees (cum laude) from the University of the Witwatersrand. Raisa previously worked as a candidate attorney at Bowman Gilfillan Inc. and was admitted as an Attorney of the High Court in 2013. She clerked at the Constitutional Court of South Africa in 2013-14 and has been on Caveat Legal’s panel of legal consultants since 2014.