A. Introduction
The Constitutional Court, on Thursday, delivered a unanimous judgment in the matter relating to compliance with remedial action set out in a report of the Public Protector. I have taken the time to study the judgment and this statement represents my preliminary observations.
The judgment makes sound, balanced and critical findings. In an important way, these are major and most welcomed lessons that will serve to guide our processes and approach in handling reports of chapter nine institutions in future.
There is now legal certainty on this matter.
One thing is certain - our democracy is alive and well.
With the benefit of the judgment, there are certain matters which could have been handled differently. I am certain that the National Assembly and all its Committees will use this judgment to guide the relevant processes in future.
We cannot over emphasise the fact that the Constitution is the foundation of our society. The Constitutional Court on the other hand is guardian of our Constitution. We appreciate the clarity provided by the Court on all the matters which it dealt with.
B. Consideration of the reports
Following complaints lodged with the office of the Public Protector concerning aspects of the security upgrades at the President’s Nkandla private residence an investigation was conducted by that office.
The Public Protector released a report on her findings. The President was required to report to the National Assembly on his comments and actions on the Report within 14 days.
Upon receipt of the President’s report, the National Assembly of the Fourth Parliament set up an Ad Hoc Committee to examine the President’s submission on the report of the Public Protector. This Ad Hoc Committee could not complete its task due to general elections in 2014.
Shortly after the resumption of the Fifth Parliament another Ad Hoc Committee was established to look into the matter. This Ad Hoc committee considered inter alia the President’s response and report from the Special Investigative Unit.
On 24 October 2014, whilst the Ad Hoc Committee was still seized with the President’s response, the Western Cape Division of the High Court rendered its judgment in the case of the Democratic Alliance v South African Broadcasting Corporation SOC Limited and Others 2015 (1) SA 551 (WCC). In that judgment Schippers J said the following with regard to the status of the report of the Public Protector:
“.... unlike an order or decision of a court, a finding by the Public Protector is not binding on persons and organs of state. If it was intended that the findings of the Public Protector should be binding and enforceable, the Constitution would have said so. Instead, the power to take remedial action in s 182(1)(c) of the Constitution is inextricably linked to the Public Protector’s investigatory powers in s 182(1)(a).
Having regard to the plain wording and context of s 182(1), the power to take appropriate remedial action, in my view, means no more than that the Public Protector may take steps to redress improper or prejudicial conduct. But that is not to say that the findings of the Public Protector are binding and enforceable, or that the institution is ineffective without such powers”.
The report of the second Ad Hoc Committee was adopted by the National Assembly in November 2014. This report required certain tasks to be done by the Executive.
In 2015, the Minister of Police responded on behalf of the Executive by submitting a report to the National Assembly. The National Assembly decided to establish an Ad Hoc Committee to consider this report and make recommendations. The report of this Ad Hoc Committee was adopted on 18 August 2015.
On 8 October 2015 the Supreme Court of Appeal (SCA) delivered its judgment in the case South African Broadcasting Corporation SOC Limited and Others v Democratic Alliance and Others [2015] 4 All SA 719 SCA. The Court found that, unless challenged in a court of law, the remedial actions of the Public Protector remain valid and enforceable.
Later, the Economic Freedom Fighters and the Democratic Alliance approached the Constitutional Court regarding the matter of the Public Protector’s Report.
C. Affirmation of powers of the National Assembly
Indeed, the Constitutional Court has affirmed the National Assembly’s powers and oversight responsibilities. To illustrate this point, I wish to quote the following aspects of the judgment:
“In principle there is nothing wrong with wondering whether any unpleasant finding or outcome is correct and deploying all the resources at one’s command to test its correctness. The National Assembly was indeed entitled to seek to satisfy itself about the correctness of the Public Protector’s findings and remedial action before it could hold the President accountable in terms of its sections 42(3) and 55(2) obligations.
These sections impose responsibilities so important that the National Assembly would be failing in its duty if it were to blindly or unquestioningly implement every important report that comes its way from any institution. Both sections 42(3) and 55(2) do not define the strictures within which the National Assembly is to operate in its endeavour to fulfil its obligations.
It has been given the leeway to determine how best to carry out its constitutional mandate. Additionally, section 182(1)(b) read with section 8(2)(b)(iii) does not state how exactly the National Assembly is to “attend urgently” to or “intervene” in relation to the Public Protector’s report.”
“It would be incorrect to suggest that a mere investigation by the National Assembly into the findings of the Public Protector is impermissible on the basis that it trumps the findings of the Public Protector. Rhetorically, on what would they then base their decision to challenge the report? Certainly not an ill-considered viewpoint or a knee-jerk reaction.”
In commenting on the doctrine of separation of powers and clarifying the nature of its order, the Constitutional Court had this to say:
“It falls outside the parameters of judicial authority to prescribe to the National Assembly how to scrutinise executive action, what mechanisms to establish and which mandate to give them, for the purpose of holding the Executive accountable and fulfilling its oversight role of the Executive or organs of State in general. The mechanics of how to go about fulfilling these constitutional obligations is a discretionary matter best left to the National Assembly”.
Declaring law or conduct inconsistent with the Constitution and invalid is plainly an obligatory power vested in this Court as borne out by the word “must”. Unlike the discretionary power to make a declaratory order in terms of section 38 of the Constitution, this Court has no choice but to make a declaratory order where section 172(1)(a) applies. Section 172(1)(a) impels this Court, to pronounce on the inconsistency and invalidity of, in this case, the President’s conduct and that of the National Assembly. This we do routinely whenever any law or conduct is held to be inconsistent with the Constitution. It is not reserved for special cases of constitutional invalidity”.
Indeed, in the law reports there are cases where either a decision of the President or Executive and Parliament has been found to have been inconsistent with the law including the Constitution.
We think that this affirmation of the powers and functions of the National Assembly and the clarification provided on the role of the Constitutional Court in terms of section 172 bodes well for democracy, and should not be missed in the discourse around this matter.
D. Areas needing consideration
As we all know the judgment has been critical of certain actions of the National Assembly.
The court found that it was not correct for the National Assembly to pass a resolution that purported effectively to nullify the findings made and remedial action taken by the Public Protector and replacing them with its own findings and “remedial action”.
It stated, “on a proper construction of its constitutional obligations, the National Assembly was duty-bound to hold the President accountable by facilitating and ensuring compliance with the decision of the Public Protector. The exception would be where the findings and remedial action are challenged and set aside by a court, which was of course not done in this case”.
Therefore, the Constitutional Court found that 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 was inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, was invalid and was set aside.
E. Conclusion
Indeed, the Constitution is the foundation of our society. The Constitutional Court is the guardian of our Constitution.
As stated before, the National Assembly and broadly Parliament respects the judgment. The judgment does provide guidance in terms of how the reports of the Public Protector and generally Chapter Nine Institutions should be dealt with. This guidance is appreciated.
All parties need to collectively reflect on the judgment. In this regard I will be asking leaders of political parties in Parliament for a meeting to discuss the judgment. We need to see how the judgment could be used to improve our mechanisms.
There has already been a request for a debate on the implications of this judgment for the National Assembly. There is also a proposal from one of the parties (IFP) for a multi-party committee to look into the matter.
As we know the National Assembly will on Tuesday, 5 April, consider a motion by the Democratic Alliance for the removal of the President in terms of section 89 of the Constitution.
