Constitutional Hill

ANC

Deal between Ramaphosa and opposition was unenforceable

The collapse of the “deal” between opposition parties and Deputy President Cyril Ramaphosa is not surprising. From a principled constitutional perspective the collapse of the deal must be welcomed. This is because the Deputy President did not have the constitutional authority to make the deal, which remained unenforceable. To enforce the deal would flout the Rule of Law.

It is sometimes difficult to insist on the scrupulous enforcement of legal rules and principles. Many people are tempted to look the other way when the political party or functionary they admire or are loyal to flout the legal rules and constitutional principles. Conversely, many people only insist on a strict adherence to legal rules or constitutional principles when a political party or functionary they dislike flouts the rules or principles.

Because of the fairly widespread lack of respect for Speaker Baleka Mbete among the members of the chattering classes (and because of the increasing chaos in the National Assembly), there were not many people who questioned the “deal” concluded between the Deputy President and opposition parties. For reasons not known to me, it appears that members of the ANC caucus – correctly – did question the appropriateness of the deal.

There are two reasons why the “deal” (which has since collapsed) was a constitutional non-starter.

First, the Deputy President (while a member of the National Assembly) is a member of the executive and as such represents the executive when he engages with members of the National Assembly in his official capacity.

In terms of section 91(4) the Deputy President has been chosen to act as the leader of government business in the National Assembly. Although the rules of the National Assembly require that he be consulted on several issues and although he serves as a member of the Programming Committee of the National Assembly, neither the Constitution nor the rules of the National Assembly accords the Deputy President (as leader of government business) any leadership role in the National Assembly.

The Speaker heads the National Assembly. Constitutionally only the Speaker can make decisions about the affairs of the National Assembly and then only when this is authorised by the Constitution and the rules of the National Assembly. If a deal was going to be struck about the affairs of Parliament, the Speaker was the appropriate person to do so.

This does not mean that the Deputy President may not meet with the leaders of opposition parties. Neither does it mean that he may not – on behalf of the governing party – make political deals with opposition parties. What he is not authorised to do is to make deals with opposition parties regarding the affairs of Parliament. The “deal” reached last week was therefore (for this reason alone) unenforceable and constitutionally invalid.

But, second, even if the Speaker had led the negotiations with opposition parties and had concluded the “deal”, she would not (in a formal sense) have been legally authorised to do so.

Rule 2(1) of the National Assembly states that the “Speaker may give a ruling or frame a Rule in respect of any eventuality for which these Rules do not provide”.

But the problem is that the rules and legislation already regulate the two most important aspects on which the governing party and the opposition differed. It does so in great detail.

These issues are the disciplining of EFF members in terms of the provisions of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act 2004 for insisting that the President “pay back the money” and the need for the President to answer questions in the Assembly four times a year.

It may very well be that the disciplinary action taken against EFF members were not “in accordance with a procedure that is reasonable and procedurally fair” as required by section 12(3)(a) of the Powers Privileges and Immunities of Parliament and Provincial Legislatures Act.

The EFF members have a more than even chance of persuading a judge that the procedure (prescribed by the rules of the National Assembly) that led to their conviction was neither reasonable or procedurally fair. The judge could then set aside the findings. But neither the Speaker (nor the Deputy President) formally has the legal authority to do so.

But this is not a particularly difficult problem to solve. While the Deputy President and the Speaker does not have the formal legal power to suspend or scrap the findings of the disciplinary committee against EFF members, the members of the National Assembly does have that power. All that is required is support from the majority of Members of the National Assembly.

This is because the National Assembly has the power to either endorse or reject the findings of the disciplinary committee established in terms of the legislation. This means that had the President and the Chief Whip of the ANC been able to sell this aspect of the “deal” to their party, its members could have declined to support the findings of the disciplinary committee against the EFF members. The disciplinary action against the EFF would then have fallen by the wayside.

This is somewhat of a technicality, which means that in practice either the Deputy President or the Speaker would have been able indirectly to deliver on a promise to halt disciplinary action against the EFF if the members of their party had backed them up.

But this is not the case with the requirement that the President must appear in Parliament to answer questions. This is, first, because section 55(2) of the Constitution states that the “National Assembly must provide for mechanisms to ensure that all executive organs of state in the national sphere of government are accountable to it”. These executive organs of state include the President.

This obligation is given practical effect to by National Assembly rule 111 which states that:

Questions to the President must be (a) scheduled for a question day at least once per term in accordance with the annual Parliamentary programme; and (b) limited to matters of national and international importance.

The rule is peremptory, which means the President does not have a discretion in the matter. The Speaker must ensure that he is scheduled to answer questions once every term.

Here the rule at first appears to be confusing. A “term” is defined in the rules as “the period for which the Assembly is elected in terms of section 49(1) of the Constitution”. Section 49(1) states that the National Assembly is elected for a term of five years. If “term” is given this meaning every time the word “term” is actually used in the rules, it would render many of the rules incomprehensible and absurd. This is so because the rules often refer to a “term” when it means one of the four periods a year when the Parliament is in sitting.

It would also mean a President would have to answer oral questions in the National Assembly only once every five years. This would clearly be in conflict with section 55(2) of the Constitution, which means the rule must be read differently. This is exactly what has happened up to now.

As I noted, the word “term” is also used elsewhere in the rules to refer the distinct periods in which the Parliament is in session each year. Given the context of rule 111, “term” clearly refers to these distinct periods. Usually there are four “terms” for Parliament every year.

However, this year there was an election, which means when establishing whether the President has complied with his legal obligation set out by rule 111, one has to establish how many terms Parliament was in session this year after the May election.

The Parliamentary Programme for the fifth Parliament elected after the May election states that Parliament sat for three distinct terms after the election. This means that the rules of the National Assembly require that the President answer oral questions in the National Assembly at least three times from June to November this year.

This did not happen.

The President has only answered oral questions in the National Assembly once since the election. He is therefore legally required to answer questions in the National Assembly two more times before the third term of Parliament ends on Friday. This is not going to happen, which means the President (and the Speaker who ought to arrange for this) are therefore in breach of their legal obligations in terms of section 55(2) of the Constitution read with rule 111 of the National Assembly.

Neither the Deputy President (as leader of government business) nor the Speaker has the legal authority to waive these rules. A basic tenet of the Rule of Law is that all peremptory, pre-announced and clear legal rules have to be complied with. In the absence of a court ruling to authorise a non-enforcement of a legal rule, it would constitute a breach of the Rule of Law to ignore such a rule in order to facilitate a political agreement.

This is the thing with peremptory legal rules: they cannot be suspended merely because a few politicians decide that the legal rules are inconvenient or – if applied – would embarrass the President or disadvantage the opposition parties.

What is clear is that there has been a breakdown of trust between political parties in the National Assembly. Without a modicum of trust, the system cannot work properly. Instead of a lively and robust platform for democratic contestation, it becomes a mini-war zone. And in a war, brute force – and not the strength of argument – is the only thing that counts. But politics is not (only) about brute force – at least not in any system with democratic pretensions. If the system does not work, its legitimacy will be compromised. Eventually the legitimacy of the both the governing party and opposition parties would also suffer.

This means that, despite the legal difficulties, some kind of solution need to be found to ensure that the rules are impartially applied and the members more or less obey the impartially applied rules. A starting point would be to ensure the implementation of rule 111 and to arrange for the President to answer questions as required by the Constitution and the rules of the National Assembly.

Why report of Nkandla ad hoc committee is of no legal relevance

Last week the ANC members of Parliament adopted a “report” that “exonerates” President Jacob Zuma of all wrongdoing in the R250 million Nkandla scandal. This is not unexpected. ANC MP’s need to protect the President in order to retain their jobs and to have any chance of promotion in future. It is politically required of them. But Nkandla is not (only) about politics. It is also about facts and the law. And legally the adoption of the “report” by ANC MP’s is of little significance.

The only surprising thing about the fact that the ANC MP’s in the National Assembly “exonerated” President Jacob Zuma of all wrongdoing for “accidentally” being enriched through government funded renovations of his private home near Nkandla, is that anyone was surprised.

President Zuma heads the ANC and is arguably (bar the Secretary General of the ANC perhaps) the most powerful person in the governing party. He has a decisive say in who is appointed as Cabinet Ministers and as Premiers. He has direct or indirect influence on who appears on ANC election lists.

He has extensive knowledge – through control of the intelligence services – of the shenanigans of those MP’s whose private lives or financial affairs may not be above board. And like the members of most political parties, ANC MP’s act as a collective in terms of decisions taken by the leadership, headed by President Zuma.

It would therefore have been political madness for ANC MP’s to endorse the findings of the Public Protector’s Report on Nkandla which found that President Zuma’s:

failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.

Section 96 of the Constitution states that Members of the Cabinet – including the President – have a constitutional duty to act in accordance with a code of ethics and may not “use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. In other words the Public Protector found that by failing to act when he had a constitutional and legal duty to do so, the President breached the Constitution and the Code of Ethics.

The Public Protector’s Report continued to direct President Jacob Zuma to do the following to rectify the unethical and unconstitutional omission:

  • Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.
  • Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
  • Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
  • Report to the National Assembly on his comments and actions on this report within 14 days. (This needed to be done because the Executive Members Ethics Act required it.)

These steps were not directed at Parliament but at the President. Because of the separation of powers doctrine, which holds that the legislature and the executive exercise different powers and functions, the central duties and powers of the head of the executive (the President) cannot be delegated to Parliament.

To do so would be to breach the separation of powers. Similarly the central duties and powers of the legislature cannot be delegated to the President. This was made clear by the constitutional Court in their judgment in Justice Alliance of South Africa v President of Republic of South Africa and Others, Freedom Under Law v President of Republic of South Africa and Others.

The renovations at the Nkandla home were done by members of the executive, headed by the President. Parliament did not renovate President Zuma’s house. This is because Parliament does not and may not fulfil an executive function. It cannot direct a building project or make decisions on whether to build a swimming pool or landscaped garden for the President to protect him from the danger of not having a swimming pool to cool down in and the danger of getting depressed by having to look at an ugly garden. Only members of the executive can do that.

It is for that reason that the Public Protector directed the President, the Minister of Police and the Director General of the Department of Public Works, and other members of the executive to take remedial action to rectify the wrongdoing committed during the Nkandla renovations.

The remedial action was not directed at the legislature. In fact the Public Protector, correctly, did not instruct the National Assembly to do anything – although she left open the possibility that it could hold the executive politically accountable for the unjustified enrichment of the President. This is because the members of the executive cannot delegate its powers to correct mistakes and to deal with unlawful expenditure to the legislature, as that would be impermissible in terms of the separation of powers doctrine.

Just as the President cannot delegate a decision on whether to declare war or whether to join BRICS to members of Parliament, he cannot delegate a decision of what to do with the Nkandla Report to Parliament.

This does not mean that the National Assembly has no power to deal with a breach of the Executive Members Ethics Act, as it has the power to hold the members of the executive accountable for such breaches as part of the system of checks and balances that is built into our Constitution.

In terms of the Executive Members Ethics Act the President must report a finding of any breach of the Ethics Code to the National Assembly. In theory this means that the National Assembly can follow up on any findings made by the Public Protector against a member of the executive and, in an extreme case, can pass a vote of no confidence in the Cabinet or in the President to have them removed.

But as the Cape High Court recently found in the judgment in which it clarified the powers of the Public Protector, Parliament would seldom be an effective mechanism through which the findings and remedial action of the Public Protector would be enforced.

In that judgment, dealing with the failure of the Minister of Communications and the SABC Board to deal rationally with the findings and remedial action imposed by the Public Protector, the Minister had argued that the best way to deal with any non-compliance of the Public Protector’s Report would be to refer the matter to the National Assembly.

The Minister argued that a request for intervention to the National Assembly or a relevant Portfolio Committee would have been an adequate remedy to deal with any alleged failure of the executive and the SABC Board to implement the remedial action imposed by the Public Protector.

The High Court dismissed this argument and found that the Minister was “mistaken”.

The facts of this very case show that the constitutional and statutory provisions upon which they rely are inadequate to ensure that the Public Protector is not undermined. Furthermore, a request for intervention to the National Assembly or its Portfolio Committee is not a legal remedy which grants similar protection as an interdict.

In other words, the High Court found that it would not be effective to rely on the National Assembly to deal with the implementation of the remedial action imposed by the Public Protector. This is obviously correct, because in the National Assembly political (and not legal) considerations will almost always determine the manner in which the National Assembly deals with the matter.

It is highly unlikely that the members of a majority party in any legislature will act in a manner that embarrasses their leader. It is even more unlikely that they will censure the leader or remove him or her from office by passing a motion of no confidence in him or her.

This is not a comment on (or criticism of) a specific political party, but an observation about the political reality within which the various legislatures operate in South Africa.

It is just as unlikely that the ANC members in the National Assembly will pass a vote of no confidence in President Jacob Zuma than it is that the DA members in the Western Cape Provincial Legislature would pass a vote of no confidence in Premier Helen Zille. It ain’t gonna happen – no matter how disgruntled some ANC MPs may be about President Zuma’s spendthrift ways or how upset some DA MPs may be about Premier Zille’s bullying and haughtiness.

This means that the National Assembly “Report” that “exonerates” President Zuma is of little legal relevance. In terms of the High Court judgment, it is the President who has a legal duty to consider the remedial action imposed on him by the Public Protector, to decide whether to implement the remedial action or not and if he decides not to implement any of the remedial action imposed on him to provide “cogent reasons” for not doing so.

When the President makes his decision, he must act rationally, having regard to his constitutional duty to assist and protect the independence and effectiveness of the Public Protector. He cannot ignore the remedial action and he cannot refuse to implement it merely because he has a different view from that of the Public Protector.

Being implicated in the matter means that the President is placed in an unappealing position: If he refuses to implement remedial steps it will be to his own financial and political benefit and it would thus be more difficult to convince a court that such a refusal was rational. The obvious conflict of interest that arises in the case, thus makes it very difficult for the President to be seen to act rationally – unless he implements all the remedial steps as imposed by the Public Protector.

Merely stating that the National Assembly has exonerated him, would also not be sufficient to convince a court that the President has acted rationally, because he is not constitutionally empowered to delegate the decision on whether to implement or not implement the remedial action to the National Assembly. If the President purports to do so he will be in breach of the separation of powers doctrine and the court will nullify his decision.

Of course, if the President provides “cogent reasons” for not implementing remedial steps imposed by the Public Protector and does so in a rational manner – given his constitutional duty to assist and protect the independence and effectiveness of the Public Protector – an eventual court challenge will exonerate him.

If not, the court will find that he had acted irrationally and thus unconstitutionally and will order him to implement the remedial action imposed by the Public Protector – as the High Court ordered the SABC to do in the recent judgment.

What is certain is that when the matter eventually reaches the court – as it almost certainly will – the decision by ANC members in the National Assembly to “exonerate” the President is not going to be of legal relevance.

What the High Court really said about the powers of the Public Protector

The Western Cape High Court this week provided the first authoritative interpretation of the nature of the powers of the Public Protector. Although the Constitutional Court will ultimately have to decide whether to endorse the approach taken by the High Court, I believe the High Court judgment got it more or less right. Here is why.

Because of the highly charged nature of the standoff between the Public Protector and the President about the latter’s failure adequately to consider and implement the remedial action imposed by her office regarding the state-funded renovations of President Jacob Zuma’s private home near Nkandla, a court judgment clarifying the powers of the Public Protector was always going to elicit much partisan comment and “spin” from those with a vested interest in the matter.

Those truly interested in the legal consequences of the judgment would do well to ignore the spin from members of the governing party and from the opposition about what the judgment actually means. Instead, it may be helpful to analyse the judgment in detail to ascertain what the court actually found. As is often the case with complex legal matters, the devil is in the detail.

In Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court confirmed that the Public Protector is not a court of law and that the findings of her office and the remedial actions imposed by that office are hence not directly binding and enforceable.

The court found that because the office of the Public Protector is modelled on the institution of the Ombudsman (which is widely found in European democracies), the power of the office lies in its ability to investigate and make findings in a cost-effective manner and to ensure a change of behaviour of government officials and members of the executive through reasoned engagement.

Where government officials and members of the executive are persuaded through such reasoned engagement to change their behaviour, it will change the way they think and behave and this will have a lasting beneficial effect on the standard of governance in a country. (The court is silent on what may happen if – for political or personal financial reasons – organs of state refuse to engage in a reasoned manner with the findings and remedial action imposed by the Public Protector.)

The High Court did not consider the fact that South Africa – unlike most European democracies with an Ombudsman – is a constitutional democracy in which the Constitution (and not Parliament) is supreme. It also did not engage in detail in the wording of section 182 or the Public Protector Act to augment its detailed reasons why it held that the Public Protector’s findings are not binding.

It is of course possible (but it is far from certain) that the Constitutional Court will agree with the Public Protector that her office differs from that of the Ombudsman in the European countries referred to. I suspect it is for this reason that the Public Protector has indicated that she would like to have the decision of the High Court reviewed.

But I am not convinced that such a review will be successful and that the Constitutional Court will ultimately agree with the Public Protector. The reason for this is that the High Court judgment does provide for the effective implementation of the findings and remedial action imposed by the Public Protector, without giving her office the status of a court of law – which would be constitutionally problematic.

I say this because after finding that the remedial action imposed by the Public Protector does not have the status of a court order, the High Court proceeded to warn that:

the fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject.

Consequently the findings of the Public Protector can never be ignored. Where an organ of state ignores the findings and remedial action by the Public Protector it would fail to comply with the constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

Disregarding the findings and remedial action subverts the Public Protectors powers under s 182 of the Constitution.

It would not always be sufficient, stated the court, to rely on Parliament and its committees to ensure that the findings and remedial action of the Public Protector are not ignored and that they are implemented. Because Parliament is a political body, it does not provide an effective legal remedy to ensure that the findings and remedial action of the Public Protector are properly dealt with.

Ultimately, the Public Protector or one of the complainants in a case may approach a court to ensure that the findings and remedial action are not ignored and, in appropriate cases, a court may order the relevant organ of state to implement the findings and the remedial action imposed by the Public Protector.

This is exactly what the High Court did in the case under discussion, ordering the SABC to institute disciplinary proceedings against the newly appointed COO of the SABC, Mr Hlaudi Motsoeneng, as was directed by the Public Protector, and further ordering his suspension while the disciplinary process takes its course.

To ensure that the office of the Public Protector “is not undermined”, the organ of state against whom findings are made or who is directed to take remedial action, must carefully consider the findings and remedial action imposed by the Public Protector.

If the organ of state decides to reject any of the findings and remedial action of the Public Protector, this will only be legally valid if the organ of state can produce “cogent reasons” for doing so. If it fails to provide such cogent reasons, its refusal to implement remedial action would be irrational and unconstitutional.

Here is the crux of the matter: the organ of state would not be acting rationally if it rejected the findings and the remedial action imposed by the Public Protector merely because it prefers its own view of the relevant facts or the remedial action above those findings and remedial action imposed by the Public Protector.

Even when the organ of state reached its own view (that differs from that of the Public Protector) on rational grounds, this would not make the rejection rational and lawful. This is so because if an organ of state could refuse to accept and implement the findings and remedial action of the Public Protector merely because it happened to hold a different view of the matter, it would subvert the powers of the Public Protector and would fail to act in a manner that ensured the effectiveness of that office.

What the organ of state would have to show is that (irrespective of whether it agreed with the findings and remedial action or not) there were other “cogent reasons” for rejecting the findings of the Public Protector, given the constitutional duty on the organ of state to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness.

The facts of the case under discussion illustrate this point and explain the “bite” hidden in the judgment regarding the obligations of those directed to take remedial action by the Public Protector. The Minister argued in her papers before the court that after the Public Protector made a finding that Mr Motsoeneng lied about his qualifications, the Minister looked at the evidence on which the Public Protector based her finding and came to a different conclusion.

Not only did the Minister not provide any reasons for coming to this decision, she also did not state that she had consider the other findings made against Mr Motsoeneng by the Public Protector. Neither did the SABC Board. The Minister and the Board in effect preferred their own view on Mr Motsoeneng above that of the view expressed by the Public Protector and did not bother to provide detailed reasons to show why this would be rational.

In the light of this failure to provide any reasons, let alone cogent reasons, for rejecting the findings and remedial actions imposed by the Public Protector regarding Mr Motsoeneng, the court found that the Minister’s and the SABC Board’s actions were “arbitrary and irrational and, consequently, constitutionally unlawful”.

The judgment mean that neither the President (nor Parliament) would be acting rationally if it decided that it preferred its own view of the facts and the appropriate remedial action regarding the Nkandla scandal above those imposed by the Public Protector and then rejected her findings and remedial action. Merely referring to the findings of the Ministerial Task Team would also not suffice.

This does not mean (in terms of the High Court judgment) the President could under no circumstances reject some of the findings and remedial action imposed by the Public Protector regarding the Nkandla matter. For example, where it would be impossible to implement the remedial action, it would be entirely rational for the President to refuse to implement the remedial action imposed by the Public Protector.

But given the fact that the President has a constitutional duty to assist and protect the Public Protector to ensure its independence, impartiality, dignity and effectiveness, it would not be sufficient for the President to say he had a different view from the Public Protector regarding her findings and remedial action about the Nkandla matter. If the President ignores some or all of the findings and remedial action by the Public Protector and does not provide cogent legal reasons for this (apart from having formed a different view about the matter), he would be acting irrationally and would be in breach of the Constitution.

I would think that it is therefore in the interest of President Zuma to respond in more detail to the findings and remedial action imposed by the Public Protector, to indicate whether he accepts or rejects each and every one of the findings and remedial action and, if he rejects a finding or a remedial action, to provide cogent legal reasons for doing so. If he fails to do so he would be in breach of his constitutional obligations – at least as understood by the judgment discussed here.

Spy tapes: Still no reason to drop charges

Extracts from the so-called “spy tapes” (for some inexplicable reason the complete version has not yet been made available) reveal that former Scorpions head Leonard McCarthy is both an inveterate gossip and a staunch Thabo Mbeki supporter. What the tapes do not provide are credible legal reasons for dropping more than 700 criminal charges against President Jacob Zuma. Here is why.

The practice of appointing politicians or politically connected individuals to leadership positions in the National Prosecuting Authority (NPA) has seriously dented the credibility of the NPA. This politicisation of the NPA (as the spy tapes demonstrate, this process started long before the election of Jacob Zuma as president) has thus eroded its independence, its credibility and its effectiveness.

It is now inevitable that the National Director of Public Prosecutions (NDPP) (or the relevant Director of Public Prosecutions) who decides to charge or to drop charges against a politician or a politically connected businessman or woman will be accused of political motives.

When a politician is charged with any crime, I almost always suspect – rightly or wrongly – that said politician must have fallen out with the faction aligned to the president. (In the case of Julius Malema, he fell out with the faction aligned to the president and was subsequently kicked out of the party.) When serious accusations of criminality are made against a politician or businessman or woman and he or she is not charged or charges against him or her are dropped, I almost always suspect – again, rightly or wrongly – that this must be because of political interference in the NPA.

This does not mean that all allegations of corruption or fraud levelled at a politician or a politically connected businessman or woman holds water. Neither does it mean that those politicians and politically connected individuals who are charged have not acted in contravention of the law and that they should not be convicted and imprisoned for corruption. But sadly, this is not how the public discourse operates. Partly because of the politicisation of the NPA, some unscrupulous (but guilty) individuals use accusations of political conspiracy to avoid both criminal accountability and public censure.

In paranoid South Africa, the first thing a politician or controversial businessman or woman accused of a crime will do will be to allege that the allegations or criminal charges brought against him or her were due to a “political conspiracy”. Interestingly enough, few people fingered for corruption or other crimes ever claim that the evidence procured against them were fabricated. The logic seems to be that if political motives animated an investigation or a prosecution, it matters not that the accused committed the crimes. A political motive magically erases the corruption and the bribery and renders the accused innocent of all wrongdoing.

As the Supreme Court of Appeal (SCA) pointed out in 2009 in National Director of Public Prosecutions v Zuma when it overturned the judgment of Nicholson J (which itself was used as a pretext to remove then President Thabo Mbeki from office) “it is generally accepted that any prosecution authority ought to be free from executive or political control”, but “this was and is not necessarily the norm in Anglo-American countries”. In many countries the Attorney-General (called the NDPP in South Africa) is a political appointee – often at ministerial level – but is nevertheless required to act without any interference from the executive.

In South Africa, the position is not much different. The NPA is headed by a NDPP who is a political appointee (appointed by the president for a fixed term) and although section 179 of the Constitution states that national legislation must ensure that the NPA exercises its functions without fear, favour or prejudice, it also states that the Minister of Justice must exercise final responsibility over the NPA. The NDPP must also determine a prosecution policy (in terms of which decisions to charge or to drop charges against suspects should be made) with the concurrence of the Minister of Justice. As the SCA stated in the Zuma judgment:

These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held… that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

This means that members of the prosecuting authority (including the politically appointed NDPP) must serve “impartially” and must exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” subject only to the Constitution and the law. At the same time the NDPP has a duty when so requested to keep the Minister of Justice informed about his or her work. However, the Minister has no power to interfere in prosecutorial decisions of the NDPP or any other member of the NPA.

Moreover, the NPA Act prohibits anyone (including the minister or the president) from interfering “improperly” with the NPA in the performance of its duties and functions. If the minister or anyone else were to interfere in prosecutorial decisions they would be committing a criminal offence.

As the SCA pointed out, the Constitution prohibits members of the NPA (including the NDPP) from taking account of political considerations when making prosecutorial decisions and also prohibits the Minister of Justice or any other member of the executive from interfering with a decision to prosecute or not to prosecute a suspect.

Where politicians or politically aligned individuals like Leonard McCarthy, Bulelani Ngcuka or Menzi Simelane are appointed to the leadership of the NPA, the temptation will be great to blur these lines and to take account of political considerations when making prosecutorial decisions. After Vusi Pikoli was fired for not taking into account political considerations when charging Jackie Selebi, NPA bosses (even those without strong political loyalties) must be acutely aware that their careers may be terminated if they stick to their principles and follow the Constitution. More worryingly, even where the lines between the political considerations and prosecutorial considerations are not blurred, the perception will inevitably arise that political interference occurred when a controversial prosecutorial decision is made.

But what happens if – as was the case with the prosecution of Jacob Zuma – some members of the NPA who may or may not have been involved in any decisions about his prosecution displayed a clear bias against him?

Recall that Mr Zuma (as he then was) and his lawyers never argued that there were no legal grounds to prosecute Zuma. Nor did they argue that all the evidence against him were fabricated or invented as part of a political conspiracy to frame him for corruption. Although they argued that they would try and block the admissibility of certain evidence (including the “encrypted fax” which demonstrated that a bribe was solicited on behalf of Zuma), Mr Zuma never argued that he had not received any money and that he had not done any favours for those from whom he received money. Instead he argued on procedural grounds that despite the evidence he could not receive a fair trial.

The SCA in its Zuma judgment was pretty clear that such arguments would seldom be of any legal relevance. The SCA pointed out that a prosecution could never be used solely to achieve an “ulterior purpose”. For example, prosecuting a person without any prospect of securing a conviction with the sole purpose of putting him out of business would be unacceptable. But where credible evidence existed that might secure a conviction and where the purpose of the prosecution was at least in part to secure such a conviction, this would not taint the prosecution.

A prosecution is not wrongful merely because it is brought for an improper purpose. It will only be wrongful if, in addition, reasonable and probable grounds for prosecuting are absent, something not alleged by Mr Zuma and which in any event can only be determined once criminal proceedings have been concluded. The motive behind the prosecution is irrelevant because, as Schreiner JA said in connection with arrests, the best motive does not cure an otherwise illegal arrest and the worst motive does not render an otherwise legal arrest illegal. The same applies to prosecutions.

In the Zuma judgment (written before the so called spy tapes came to light) the SCA stated that there was no “ulterior purpose” in prosecuting Zuma and the prosecution could thus not be tainted. The spy tapes did not change this because as the SCA stated in rejecting Zuma’s argument that the prosecution must be set aside because it was tainted by a political motive:

In the absence of evidence that the prosecution of Mr Zuma was not intended to obtain a conviction the reliance on this line of authority is misplaced as was the focus on motive.

No one has ever argued that Zuma was prosecuted without the intention of securing a conviction. This means that the reasons offered by the then acting NDPP for dropping charges against Jacob Zuma do not seem to be in line with the law and may well be irrational. This conclusion is strengthened by the fact that, in terms of the Constitution, the prosecution policy must be observed in the prosecution process. When deciding to prosecute or not to prosecute or to drop charges against a suspect, the decision-maker must do so in compliance with the prosecution policy.

The prosecution policy lists a range of factors prosecutors should take into account when deciding whether or not to institute a prosecution: the strength of the state’s case, the admissibility of the state’s evidence, the credibility of the state’s witness, the strength of the defence’s case, and the extent to which the prosecution would be in the public interest. Curiously, the acting NDPP did not refer to this prosecution policy when he announced the dropping of the charges against Jacob Zuma. This means that the policy that – constitutionally – ought to have guided the decision to drop charges against President Zuma was not considered at all.

This means that it will be difficult for the NPA to convince a court that the dropping of charges against President Zuma was legally valid. Of course, whether too much time has now elapsed since the commission of the alleged crimes to allow for a fair trial is another question. But that would be a question for a court (and not the NPA) to decide.

Spare a thought for ANC Nkandla committee members

The ad hoc committee of the National Assembly (NA) formed to deal with the fall-out from the Nkandla scandal has all but collapsed after all opposition parties withdrew from it at the end of last week. But why was it set up at all if – as all committee members agree – the committee has no power to review and set aside the findings and remedial action imposed by the public protector?

Neither the Constitution nor the relevant legislation specifically states that the NA has an obligation to consider and deal with all reports of the public protector. But this does not mean that the NA does not (in certain circumstances) have a constitutional duty to call the president, other members of the executive, other politicians or members of the public to account for findings contained in a report of the public protector.

When a report of the public protector deals with a breach of the executive members ethics code, the Executive Members Ethics Act does require the President “within a reasonable time, but not later than 14 days after receiving a report” from the public protector “submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto” to the NA.

However, the Act is silent on how the NA is supposed to deal with this report from the president.

When a report (or aspects of a report) of the public protector does not deal with a breach of the ethics code, there is no specific obligation on the president to report the findings of the public protector to the NA.

However, the speaker can request the public protector to provide the NA with one of her reports. The public protector can also (on her own initiative) submit one of her reports to the NA when she deems it necessary or if she believes it requires the urgent intervention of the NA.

For example, where a report finds that the president is in serious breach of the Constitution or the law, the public protector may submit the report to the NA with a view of allowing the NA to start impeachment proceedings against the president.

As I pointed out above, this does not mean that the NA is not obliged to engage with reports by the public protector regarding breaches of the ethics code and of maladministration and corruption by the president or any other member of the Executive in cases where a report is not submitted directly to the NA.

Section 55(2) of the Constitution imposes a positive constitutional obligation on the NA to hold members of the executive – including the president – accountable for their actions and to maintain oversight over their activities. This accountability goes beyond the performance of their formal functions and duties and includes accountability for a serious violation of the law, serious misconduct or serious breach of the Constitution. This is so because the NA can impeach a president who is guilty of such unlawful actions or misconduct.

Section 92(2) confirms the powers of the NA to hold the president and his executive accountable by stating that all members of the cabinet (which includes the president) are individually and collectively accountable to Parliament for the exercise of their powers and performance of their functions.

The NA is empowered to summons any person (including the president, other cabinet ministers or any official from any political party or any private citizen) to appear before it or to give evidence and to produce any documents relating to the accountability and oversight mandate of the NA. A person who is summonsed to appear before the NA or one of its committees is obliged to appear and produce any documents requested by the committee. A failure to do so may result in a conviction for contempt.

Moreover, section 181(3) imposes another obligation on the NA. Like all other organs of state it is constitutionally required, “through legislative and other measures” to “assist and protect” the public protector “to ensure the independence, impartiality, dignity and effectiveness of these institutions’.

What does this mean?

The NA is constitutionally obliged to hold the president or other member of the executive accountable for how they respond to the findings and remedial actions imposed by the public protector in the wake of findings of maladministration, unethical conduct in breach of the code or corruption.

Where the president, other member of the executive or other individuals comply fully with the remedial action imposed by the public protector, the NA would have no need to engage with those responsible for implementing her findings, regardless of whether the matter deals with a breach of the ethics code or with other forms of maladministration or corruption.

But where the president, other member of the executive or other responsible individuals fail to comply with the remedial action imposed by the public protector, the NA has a constitutional duty to hold the responsible parties accountable for what may turn out to be a serious breach of the Constitution.

At the very least, the NA must require the president (or other members of the executive) to explain to the relevant NA committee why he or she has failed to implement the remedial action imposed by the public protector and why this failure to comply is rational and hence lawful.

As the president has so far refused to provide the NA with comprehensive reasons for failing to adhere fully to the remedial action imposed by the public protector (in a letter to the NA the president declined to comment at all about the findings of the public protector and whether he deems the findings to be correct and appropriate), the NA may first provide the president with another opportunity to do so and if he again fails to provide comprehensive reasons for his refusal to comply, the NA has a duty to summons him before the NA to account for this failure.

This would be constitutionally required because it must be obvious that any failure by the president to comply with the remedial action imposed by the public protector in terms of section 182(1)(c) of the Constitution would prima facie constitute a breach of section 181(3) of the Constitution.

This is so because such a failure would almost certainly undermine the effectiveness of the public protector – instead of protecting it as the Constitution requires. After all, why would anyone in the world comply with the remedial action imposed by the public protector if the man right at the top refuses to engage with the remedial action in a systematic, diligent and rational manner?

The NA could, of course, also summons the president to appear before it to ask why the president had seemingly undermined the dignity, independence and effectiveness of the public protector by failing to answer a majority of the questions posed to him by the public protector. This failure to answer the questions of the public protector constitutes a prima facie criminal offence as the Public Protector Act says it is a criminal offence not to answer the questions posed to you by the public protector.

But this would be additional to the obligation set out above: in the absence of impeachment proceedings it is not the main constitutional reason why the ad hoc committee of the NA is obliged to engage with the Nkandla report. The main obligation of the ad hoc committee is to hold the president accountable for the manner in which he responded (or failed to respond) to the report.

Where no satisfactory explanation is provided to the NA by the president, the NA could institute a vote of no confidence in the president or his cabinet in terms of section 102 or could start impeachment proceedings against the president in terms of section 89 of the Constitution. If such a move succeeds, the president would be removed from office – the ultimate form of accountability.

As far as the public protector’s Nkandla report is concerned, it appears that none of this will be done, which means the NA will not comply with its constitutional duties regarding the Nkandla report.

This is not surprising. In fact, if I had been a member of the governing party serving on the ad hoc committee I would probably also have been extremely reluctant to hold the president accountable and to comply with my constitutional duties to do so.

The reasons for this are obvious.

Where the members of the governing party serving in the NA believe that no serious electoral harm will be done to their party if they fail to hold the president accountable, they will almost certainly act in a manner aligned with the interests of the president. From their perspective, it would be madness for them to act against the leader of their party (or against other senior members of their party who serve in cabinet and retains the confidence of the president) and to hold them accountable.

This is so because they might fear to act against the leader of the party, who may well possess incriminating information about their financial affairs or private lives that may be leaked to the media, SARS or the NPA. The leadership of the party will also be able to sabotage their careers by having them “redeployed” from the NA if they displease the leadership.

Some might be protecting the president out of personal loyalty to him. Others may harbour genuine fears that complying with the Constitution will further damage the image of the political party they are loyal to and love, and which they rely on for their jobs. Yet others may not have an ethical compass and may genuinely believe that there is nothing wrong with the use of public funds to personally enrich the president.

This means that – as is the case in many other democracies – the constitutional accountability measures break down where there are no negative political consequences for the governing party who fails to fulfil its accountability mandate.

The day that voters send a signal to the governing party that it will be punished at the polls for failing to hold the executive accountable will be the day this dynamic will change. Until then, spare a thought for the ANC members on the ad hoc committee who are caught between doing the right thing and doing what (for the moment) appears to be in their own best interest.

The Speaker’s dilemma

The raucous, often childish and rude, and somewhat chaotic debate on the motion of no confidence introduced by some opposition parties against the current speaker of parliament failed to engage in any meaningful manner with principled questions about the proper role of a speaker in a Constitutional democracy like our own. Leaving aside the question of whether Baleka Mbete is a good speaker or not, it may be helpful to ask what the appropriate role is a speaker ought to play in the South African parliament.

Should the speaker of the South African parliament be impartial? Should he or she ceremoniously distance him or herself from the party he or she belongs to after election as speaker in order to avoid a perception of bias and unfairness? Should the speaker resign as a member of the party’s caucus and escape its discipline?

Or should the speaker serve in a partisan capacity to advance the interests and political agenda of the majority party in parliament in order to promote the interests of the majority of voters? Should the speaker use his or her power to shield the members of the executive from the partisan attacks and questions from the opposition?

The text of the South African Constitution does not give an explicit answer these questions. But, as I point out below, the Constitutional Court has strongly suggested our Constitution requires adherence to the former rather than the latter model for the speaker.

The tradition in Westminster style parliaments is that a speaker cuts all ties with the party he or she belongs to after elevation to speaker and serves in a non-partisan and absolutely impartial manner to serve the interest of all the members of parliament (so serving the interests of all voters – not only those who voted for the governing party).

However, speakers in other systems serve in a more partisan capacity. For example, the speaker of the US House of Representatives is actively involved in advancing the interests and legislative agenda of the majority party (although he or she seldom preside over debates).

In terms of section 52(1) of the South African Constitution (read with Schedule 3) the members of the national assembly (NA) must elect a speaker in a secret ballot from among its members. Section 52(4) also allows the members of the NA to remove a speaker from office by adoption of a motion to that effect.

Only a member of the NA can serve as speaker. Given the electoral system through which members of the NA are elected, this means that the speaker must belong to one of the political parties represented in the NA.

In terms of the rules of the NA the speaker has considerable powers. He or she is the administrative head of parliament and either the speaker or another presiding officer preside over debates in the NA. The speaker has final authority over the interpretation and application of the rules of the NA (subject to control by the judiciary). He or she is also allowed to give a ruling or frame a rule in respect of any eventuality for which these rules do not provide.

In terms of section 90 the speaker may also (in very exceptional circumstances) serve as acting president of the country until a new president is elected.

As the Constitutional Court pointed out in Oriani-Ambrosini v Sisulu our Constitution requires MPs to make decisions (usually through majority vote) to pass legislation; adopt resolution; determine the time and duration of the sittings of the Assembly; elect a speaker and a deputy speaker; elect officers to assist the speaker; remove a speaker; and determine its processes through the making of rules.

In a democratic system of government, the members of the majority party therefore have the power to decide whether any of these decisions are passed or not (unless super majorities are required for a decision in which case the support of several parties may be required). It is the essence of majority rule that the majority party has a conclusive say in the decisions taken by parliament.

This does not necessarily mean that the South African Constitution envisages a system in which only the members of the majority party receive a fair chance to state their views and to influence decisions. There is a difference between the principle that the majority party rule when important decisions are taken and the principle that the majority party rule during deliberations that may eventually lead to a majority decision.

As Sachs J stated in Democratic Alliance v Masondo: “

[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered…

Because the South African Constitution establishes an “open and deliberative” form of democracy it emphasises the need for dignified and meaningful participation by all MPs in the activities of parliament. As Sachs explained our form of democracy:

is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it…’

There are good reasons why the Constitution does not (in theory) allow the majority party to use its majority or its control over decisions such as who should be elected speaker, to silence the voices of those MPs who represent the millions of voters who have not voted for the majority party.

As Chief Justice Mogoeng pointed out in the Oriani-Ambrosini judgment:

South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.

The Constitution is (at least partly) aimed at preventing a recurrence of the horrors of the apartheid past. Having learnt from this past, the drafters of the Constitution also sought to prevent any recurrence of the undemocratic practices that were embedded in the apartheid state and helped to sustain it for so long. That is why the Constitution prohibits the suppression of dissent, criticism or protest against those in government.

What these Constitutional Court judgments emphasise is that ours is a democracy that values fair and equal participation in debate and in the processes that lead to the decisions that are ultimately taken by parliament. While the majority ultimately decides what the decision is, the minority must have a fair opportunity to take part in the deliberations that lead to a decision.

The judgments suggest that the rules of parliament should be formulated clearly and with sufficient precision and in in enough detail to prevent the rules from being abused by the presiding officer. The rules must be aimed at ensuring fair and meaningful participation of all MPs in the debates in parliament and in the other activities of parliament.

I suspect the rules as currently employed by presiding officers are far too vague and open to abuse to fulfil this basic Constitutional requirement. For example, the practice of ruling that statements must be withdrawn because they are “unparliamentary” has led in the past to the silencing of dissent and the asking of difficult questions. Anything can in theory be ruled to be “unparliamentary”, which means it is a term that can be abused to silent dissent.

The Constitutional Court judgments also suggest that our Constitution requires the speaker or any other presiding officer to act fairly and impartially at all times – also when he or she presides over a debate in parliament. Not only must the speaker be impartial and unbiased, he or she must act in a manner that would avoid the apprehension of bias or partisanship on his or her part.

If a speaker or other presiding officers are not impartial and are not manifestly seen to be impartial, parliament will not be able to function in a manner that promotes pluralistic democracy (the kind of democracy in which dissenting voices are heard loud and clear). This would be in conflict with the jurisprudence of the Constitutional Court.

However, this leaves the speaker of the South African parliament in a difficult position. As the speaker is elected to the NA on a party list and can easily be removed from the NA by his or her party, there will be strong pressure on him or her to serve the party and the executive and not the parliament as an institution.

In our system it is therefore very difficult for a speaker to be truly impartial and unbiased. For a speaker who is a member of the governing party this pressure will be even more severe as section 5.4 of the Constitution of ANC states that:

ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the Constitutional structures of the ANC.

Whether this section of the ANC Constitution is compatible with the Constitutional Court judgments mentioned above (as well as theRamakatsa judgment) is open to debate. But as long as the Constitutional Court does not declare the section unconstitutional, it places any speaker from the governing party in the impossible position of having to serve the Constitution and to act impartially while also enforcing the decisions of the party.

I therefore have sympathy with the speaker. She has to serve two conflicting masters – something that is currently impossible to do.

For this reasons I believe the rules of the NA (and if needs be the provisions of the Constitution) should be reviewed to allow for the speaker to become a non-partisan and impartial officer of parliament as a whole, serving to protect and promote the pluralistic democracy in a manner that will ultimately be to the benefit of all South Africans.

The rules should prohibit a speaker from being a member of his or her party’s caucus and from serving in any position in his or her party. The rules should also protect the speaker by prohibiting his or her party from removing him or her from parliament for the duration of the parliament.

If the rules are not amended to secure the impartiality and independence of the speaker, parliament will continue to provide us with strident but ultimately vacuous entertainment – to the detriment of our democracy.

Can Parliament act against EFF MPs for demanding answers in Parliament?

Can members of National Assembly (NA) who belong to the Economic Freedom Fighters (EFF) be suspended from Parliament for breaching the rules of the National Assembly? And if they “disrupt” proceedings by insisting that the speaker acts impartially and that the President answers the questions validly posed to him, can they be arrested – as suggested by a slightly unhinged Gwede Mantashe last week?

Parliament is supposed to be the engine room of South Africa’s democracy. Apart from considering and passing (constitutionally valid) legislation, Parliament is also required to hold the executive accountable, to oversee its activities and to provide a platform for debate about important issues of the day.

For members of the majority party there is an inherent conflict between fulfilling these constitutional obligations as elected representatives (and hence acting as servants of the people) and submitting to the strict discipline of the party who they represent in Parliament and following the instructions of their party leaders.

How do you hold the members of government accountable if they are leaders of your party who may have a decisive say in whether your name appears on the electoral list at the next election? How do you insist on accountability when you know Gwede Mantashe might call you in for a tongue lashing if you dare to ask the right questions? How do you insist on holding the executive to account if you run the risk of being “redeployed” as third assistant secretary to the South African ambassador of Tjkitjikistan?

Nevertheless, section 58 and 71 of the Constitution states that both Cabinet members and members of the National Assembly (NA) and the National Council of Provinces (NCOP) enjoy enjoys freedom of speech in Parliament and in its committees, “subject to its rules and orders”.

This means freedom of expression can only be limited if authorised by the rules and orders of Parliament. It cannot be limited by arbitrary rulings of the speaker not explicitly authorised by the rules and orders of Parliament.

As the Supreme Court of Appeal (SCA) ruled in the De Lille judgments many years ago, customs that apply in the British Parliament do not form part of South Africa’s Parliamentary rules and cannot be applied here without being incorporated into the rules and orders of our own Parliament.

The need for clearly defined, precise and narrowly tailored written rules on what kinds of speech can be limited in Parliament is important in a system like ours in which the speaker is neither independent nor impartial but a political leader of the majority party with a vested interest in protecting members of government against any accountability and criticism.

In the absence of clear rules, the speaker will have a blank cheque to make-up rules or to misapply vague rules to stop debate and to protect the members of cabinet from being held accountable by MPs who have a constitutional duty to do so.

It is for this reason that many of the rulings made by the speaker disallowing so-called “unparliamentary statements” by MPs are probably illegal and unconstitutional. There is no rule or order that authorises the speaker to limit “unparliamentary” statements and when she does make such a ruling it is therefore not authorised by law and almost certainly infringes on section 58 (or 71 if done by the Chairperson of the NCOP) of the Constitution.

Besides, the notion of “unparliamentary statements” is so vague and incomprehensible that it all but invites the speaker and other presiding officers to invoke it to stifle debate and free speech in Parliament in order to protect the members of the executive from criticism, scrutiny and accountability.

However, the rules of Parliament as well as the Powers, Privileges, and Immunities of Parliament and Provincial Legislatures Act do regulate some forms of speech and conduct in Parliament.

Thus rule 49 of the NA requires members of the NA to take their seats when the presiding officer rises to speak. Rule 50 allows the presiding officer to order a member to stop his or her speech when the member persists in irrelevance or repetition of arguments. Rule 63 prohibits members from using “offensive or unbecoming language”. Rule 66 prohibits members from reflecting “upon the competence or honour” of a judge or a member of a Chapter 9 institution.

It is important to note that rule 72 of the NA makes clear that every member of the NA has a right to raise a point of order and may speak to do so. (Where a speaker refuses to hear a member who raises a point of order – as she did during the debate in which President Zuma refused to answer questions put to him by the EFF – she is in breach of the rules which she is supposed to uphold.)

Despite this, the speaker does have broad powers. She has a right to order a member to withdraw from the chamber where there is a breach of the rules or, in serous cases, to suspend the member. If the speaker is presiding this cannot be done after the fact, but must be done while the house is sitting. This means the speaker does not have the authority to suspend members of the EFF for what happened in the House last week, as she did not suspend them at the time – she merely suspended proceedings of the House, as she was entitled to do.

This does not mean that members of the EFF may not still potentially face legitimate suspension, as the Powers, Privileges and Immunities Act provides for suspension of members for up to 30 days and for a docking of an MPs pay for up to one month if they are found guilty of contempt of Parliament.

Contempt includes, amongst other things, improperly interfering with or impeding the exercise or performance by Parliament or a House or committee of its authority or functions; assaulting or threatening another MP; while Parliament or a House or committee is meeting, creating or taking part in any disturbance within the precincts; bribing MPs or taking a bribe; or hindering or obstructing a staff member in the execution of the staff member’s duties.

A “disturbance” is defined as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or committee”.

This definition is vague: does it include statements made by MPs in which they raise points of order to demand that the President answer questions posed to him, when the President is illegally protected by the speaker from having to answer? And if it is a disturbance, is it an improper disturbance as required by the Act? Is an improper disturbance not only related to threats, violence and destruction of property and not to disturbances caused by the exercise of freedom of speech by MPs?

Given the fact that the Constitution guarantees the right of MPs to free speech in Parliament, these provisions have to be given a narrow interpretation to limit their scope. It may therefore very well be that an impartial body would find that what the EFF MPs did, does not amount to an improper disturbance of Parliament.

But who exactly caused the disturbance in the case relating to the (non) answering of questions by President Jacob Zuma in the NA? Was it the President who refused to answer the questions posed to him? Was it the speaker who bent the rules of Parliament to protect the President? Or was it the EFF members who refused to obey the rulings of the speaker and insisted that the president answer the questions? Or was it perhaps all three groups?

In terms of section 12 of the Powers, Privileges and Immunities Act, a standing committee of the NA (the Powers and Privileges Committee) must now decide these questions. An ad hoc Committee of the NA cannot decide on these questions as this would be in breach of section 12 of the Act read with section 191 of the rules of the NA.

The Act requires this committee to “enquire into the matter in accordance with a procedure that is reasonable and procedurally fair” and then to “table a report on its findings and recommendations in the House”. The House can then act against individual MPs if the standing Committee on Powers and Privileges makes a finding against them, based on the relevant facts, after having conducted a fair hearing.

It would obviously not be procedurally fair for the Committee to prejudge the matter or for the majority of the Committee members from the governing party to make decisions on the “guilt” or “innocence” of the EFF MPs based on the instructions of their party leaders. Where a perception has been created that the matter has been prejudged by some members of the Committee the fairness of the hearing will be called into question.

Given the statements made by some ANC leaders (and especially the Secretary General of the ANC) calling for strong action against EFF MPs, it is difficult to see how the Committee can actually conduct a reasonable and procedurally fair inquiry with ANC MPs present on the Committee. The Chief Whip of the ANC may very well have created a reasonable apprehension of bias on the part of ANC members of the Committee because of his premature statements about what happened in a branch of government.

Ironically, by commenting so hastily on the matter, the ANC leaders may well have provided the EFF members with a valid legal argument to nullify the work of the standing committee.

Lastly section 11 of the Act states that:

A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.

If this section applies to MPs as well as other persons who are not MPs and if “disturbance” includes a disturbance made through rowdy and unpopular speech, the section is clearly unconstitutional. This is so because section 58 and 71 of the Constitution prohibits MPs from ever being arrested for anything any of them has said in either of the houses of Parliament or its committees (even if what they have said was disrespectful, disruptive or in breach of the rules and the orders of Parliament).

These sections are not limited in any manner, providing MPs with an absolute right against arrest for what they say in Parliament.

But the section could also be read in conformity with the Constitution by reading it as not applying to MPs and I suggest this is the correct interpretation of the section. It is for that reason that the statement by Gwede Mantashe that EFF MPs should have been arrested and any suggestion by so called “Security Cluster” Ministers that MPs could be arrested for what they say in Parliament is dangerous and unconstitutional nonsense.

All this does raise an important question: has the time not come to consider the need to appoint a more independent and impartial person as speaker to apply the rules fairly and in a more even handed manner?

Should an MP who is elected as speaker not give up membership of the party or any leadership positions in that party for the duration of his or her speakership? Surely, a more fair and impartial speaker would instil more respect from all MPs, would ensure impartial rulings and may well prevent a recurrence of the kinds of actions taken by EFF MPs last week.

Nkandla: Zuma’s convoluted series of Houdini moves

Over the past week the governing party released a veritable sea of red herrings into the political pond (more like a cesspit) in an attempt to avoid confronting the embarrassing but incontrovertible fact that President Jacob Zuma violated the Executive Ethics Code and improperly benefited when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations at his private Nkandla palace. It’s time to cut through the verbiage and explain what must happen next.

The Public Protector is the only independent constitutional institution that has conducted a comprehensive and impartial investigation into the Nkandla scandal. That institution produced a 447-page report clearly indicating what went wrong with the Nkandla palace upgrade and clearly setting out the remedial steps that must be taken to correct the wrongdoing.

The findings and remedial action imposed by the Public Protector are not popular in some quarters, but like all factual findings made by an independent constitutional institution they are not subject to changes made by the majority of MP’s in Parliament. If that were so, then the Public Protector would be irrelevant – just as the courts would be irrelevant if their decisions could be amended by Parliament.

What must happen next – in accordance with the Constitution – is that these remedial steps must be implemented forthwith (“speedily and without delay”, as the Constitution would have it). The rest is irrelevant political noise.

The Ministerial Task Team who first “investigated” the Nkandla scandal was not an independent body and did not conduct an impartial investigation. It was a body of people tasked with investigating their own bosses.

If Oscar Pistorius’ uncle Arnold Pistorius had been asked to rule on whether Oscar was guilty of murder, uncle Arnold’s “ruling” would probably have been more credible than the report produced by the Ministerial Task Team.

Such a “ruling” by uncle Arnold would also have had the same legal status as the Ministerial Task Team investigation and report. The investigation of the Ministerial Task Team was an informal one, not explicitly authorised by any law or any constitutional provision. It therefore has no legal standing. As a public relations exercise it might have had some value, but in law it is irrelevant.

The Special Investigative Unit (SIU) is also not an independent and impartial constitutional body. Because it is not independent and because its functions stray too far from that associated with that usually performed by a judge (who does have to be impartial) the Constitutional Court ruled that a judge couldn’t head the SIU.

In terms of the SIU Act its head is appointed by the president and can at any time be removed by the president. The SIU head thus serves at the pleasure of the president and he would therefore be foolish in the extreme to make any finding against President Zuma if he wanted to remain in office.

In any case, the SIU can only investigate matters when he or she is authorised to do so by the president. When the president authorised the SIU to investigate the renovations at Nkandla he (unsurprisingly) did not authorise the SIU to investigate whether President Zuma had breached the Ethics Code or had improperly benefited from the renovations when taxpayers funded the building of a swimming pool, a visitors’ centre, an amphitheatre, a cattle kraal, a chicken run and other non-security related renovations.

The SIU can institute civil proceedings against those it has investigated to recover damages or losses incurred by the state. It can therefore go after the architect and others who allegedly unduly benefited from the Nkandla renovations. The SIU should do so forthwith. However, even if it had wanted to (which would have been career suicide for its head) the SIU cannot hold the president to account for breaches of the Ethics Act or for improperly benefiting from the Nkandla palace renovations because President Zuma ensured that it could not investigate him.

The ad hoc committee of Parliament also has a role to play in holding the president and others accountable. In this it is to be assisted by the Public Protector, the president and other Ministers and functionaries found to have acted in breach of their legal and constitutional duties. Its role is to ensure that the president, the various ministers and the functionaries comply with the remedial action provided for by the Public Protector.

The ad hoc committee must therefore study the remedial action imposed by the Public Protector with a view to hold the executive accountable for complying with the remedial action. To this end it is empowered by section 56 of the Constitution to summon the president or any minister to appear before it to give evidence on oath or affirmation, or to produce documents (including the documents the president unlawfully refused to provide to the Public Protector). It can also require the president or any minister to report to it on any aspect of the scandal.

This it can do to ensure that the president, the relevant ministers and other functionaries comply with the remedial action imposed by the Public Protector’s report.

What the ad hoc committee cannot do is to either purport to review and reject the findings and remedial actions of the Public Protector. Chapter 9 institutions are independent and as Parliament itself found in an ad hoc Report on Chapter 9 bodies, neither the legislature nor the executive may interfere with the core business of a Chapter 9 institution.

The core business of the Public Protector is to investigate maladministration and breaches of the Ethics Code and to direct that remedial action be taken.

This means that the ad hoc committee has no authority to either review or ignore the findings and remedial action of the Public Protector. If it purports to review its findings and to replace the findings with different ones, it would be acting ultra vires and hence illegally. If it ignored the findings that are relevant for its oversight and accountability functions it would act irrationally and hence unlawfully.

This is made obvious with reference to an example from another Chapter 9 institution, the Electoral Commission. If the Electoral Commission declares candidate A from an opposition party to be the winner in a constituency in a local government by-election, a committee of Parliament cannot review that decision and decide that candidate B of the governing party should be elected instead. If it purported to do this it would represent a fundamental attack on democracy and would represent a flagrant unconstitutional power grab on behalf of the majority party in Parliament.

Similarly, if the ad hoc committee purports to review and set aside the findings of the Public Protector because the findings are unpopular with President Zuma, then the ad hoc committee would be launching a full frontal unconstitutional attack against the Constitution. In order to protect our democracy a court would have no problem in declaring such action by the ad hoc committee unconstitutional.

The various persons and bodies will probably not comply with the steps as set out above. In order to shield the president from the consequences of his own actions and to endorse the unlawful self-enrichment of the president and his family at taxpayers’ expense, the law and the Constitution (as well as Parliament) will probably be undermined and degraded. All because the president refuses to pay back the money that he owes to South African citizens.

Public Protector tries to assist President to act lawfully – to no avail.

Politicians often behave like alcoholics who refuse to acknowledge that they have a drinking problem. Instead of accepting the help they so desperately need to recover from the devastating illness, they attack those who try and assist them and vilify those who have their best interest at heart for “interfering in their lives”. The response of President Jacob Zuma (and, recently, that of the ANC) to the many attempts by Public Protector Thuli Madonsela to assist the President to deal properly and in a constitutionally and legally valid manner with the Nkandla scandal is a case in point.

In her most recent letter addressed to President Jacob Zuma about his response (or substantial lack thereof) to her report on the Nkandla scandal, Public Protector Thuli Madonsela points out that she is “currently preparing a special report to the National Assembly regarding progress achieved by organs of state with the implementation of remedial action”.

In order to protect the President and the government he leads she wishes to avoid a situation in which she has to advise the complainants and the National Assembly that the President has failed to engage with the substance of the report or implementation of the remedial action proposed in it.

Having to provide such advice would obviously cause further embarrassment to the Presidency and would also further expose the Presidency to legal action on the basis that his response to the report and his failure to implement the recommendations of the Public Protector are irrational and hence unlawful.

In terms of section 182(1)(c) of the Constitution the Public Protector has the power “to take appropriate remedial action” whenever that office finds that there was a breach of any law or whenever it was found that an organ of state acted unethically or in breach of its legal duties or is guilty of maladministration.

Section 181(3) of the Constitution further places a legal duty on all organs of state (including the President) to “assist and protect” the institutions of the Public Protector to ensure its “independence, impartiality, dignity and effectiveness”.

Relying on this power bestowed on her by the Constitution the Public Protector required the President to “take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures” implemented at his private residence “that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool”.

It further required the President to “pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document” and to “reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused”.

Lastly, in accordance with section 3(5) of the Executive Members Ethics Act the President was required (over and above the requirements set out above), to “report to the National Assembly on his comments and actions on this report within 14 days”.

It would not be appropriate for the Public Protector to be seen to interfere with the process according to which the National Treasury determines what portion of the money President Zuma should pay back.

But it is appropriate for the Public Protector to try and assist the President in order to prevent him from acting unlawfully by purporting to usurp the power of the courts and thus by infringing on the separation of powers doctrine.

As the letter by the Public Protector makes clear, neither the President, nor the Minister of Police is legally authorised to reconsider the findings and remedial action contained in the Public Protector report. Only a court of law can review and set aside the findings and remedial action instituted by the Public Protector.

The decision by the President to task the Minister of Police “to report to Cabinet on a determination to whether the
President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports” is therefore not authorised in law.

If challenged a court would almost certainly set aside this decision of the President on the basis that it is irrational and hence unlawful.

It is also clearly in breach of the separation of powers doctrine as the President is purporting to bestow a judicial power on the Minister of Police. As the President and other members of the executive have often in the past emphasised how important they regard the separation of powers doctrine, this purported action by the President is surprising indeed.

As the Constitutional Court found in Democratic Alliance v President of South Africa and Others when exercising his powers or fulfilling legal or other constitutional duties the President cannot ignore factors relevant to the decision (legal obligations and factual findings about wrongdoing being such relevant factors):

There is therefore a three stage enquiry to be made when a court is faced with an executive decision where certain factors were ignored. The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage of the enquiry is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.

Where the President ignores the fact that his Minister of Police does not have the legal authority to review and set aside the decision by the Public Protector to require the President to pay back a reasonable amount of the money spent on non-security related upgrades, he is ignoring factors relevant to the exercise of his powers and acts irrationally.

By ignoring the fact that neither himself nor the Minister of Police (or the National Assembly for that matter) can review and set aside the findings or the remedial actions imposed by the Public Protector, the President is therefore proposing to act in an irrational and hence unlawful manner.

The letter of the Public Protector alerts the President to this fact, presumably with the hope that the irrational and unlawful action will be rectified before it becomes necessary to approach a court of law to set aside the President’s decision. It is a pity that the Public Protector is now being criticised for trying to assist the President to act lawfully.

Some confusion has been created about the role of the National Assembly in this matter.

In terms of section 3(5) of the Executive Members Ethics Act the President has a further duty (over and above his duty to implement the remedial actions of the Public Protector in a rational manner) to submit a copy of the report of the Public Protector on breaches of the Ethics Code and any comments thereon, together with a report on any action taken in this regard to the National Assembly.

This became necessary because the Public Protector found that the failure of the President “to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”.

(The President’s response that the Public Protector found that: “President Zuma did not mislead Parliament or violate the Executive Ethics Code when he addressed Parliament regarding the security upgrades” could therefore be misleading.)

This provision of the Executive Members Ethics Act recognises the role of the National Assembly in holding the executive to account. It allows the National Assembly to play its appropriate role in ensuring that the findings and remedial actions of the Public Protector are properly implemented. But the National Assembly cannot usurp the powers of a court or of the Public Protector. Its role is circumscribed.

Two important conclusions flow from this.

First, the National Assembly is not authorised to review and set aside the findings and remedial actions of the Public Protector. If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine. Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out by the Public Protector.

Second, it would be improper for the National Assembly to engage with an irrational and hence unlawful response by the President.

Recall that where the President acts irrationally by unlawfully authorising the Minister of Police to review the findings and remedial actions of the Public Protector, it taints the whole process and renders it irrational and unlawful. It is akin to a soccer game in which a player is ruled offside: everything that follows from the offside is null and void. Any goal scored after the offside ruling was made will not count.

It is therefore of no use for the National Assembly to engage with the irrational and unlawful recommendations of the President. The National Assembly is not a court of law and cannot render the actions of the President lawful by a say-so. If the National Assembly now engages with the irrational and unlawful recommendation of the President it would, at best, be wasting its time. At worst, it may endorse illegality.

It is for this reason that it was entirely appropriate for the Public Protector to write to the President in an attempt to protect the Presidency, the Ministry of Police and National Assembly and to ensure that these institutions refrain from acting unlawfully or from endorsing illegality.

It is rather unhelpful to shoot the messenger because the message she brings – no matter how true and timely – is unpleasant or embarrassing.

Just like it is unhelpful for the alcoholic to attack his or her friends and family members for pointing out that he or she needs help to deal with the illness at hand, so it is unhelpful for the President and the ruling party to attack the Public Protector for trying to assist the President (and the National Assembly) to deal lawfully and appropriately with the Nkandla scandal.

Hlaudi weather: The fog is even thicker than it looks

The appointment of Hlaudi Motsoeneng as the SABC’s Chief Operating Officer (COO) despite his dishonest and prima facie criminal behaviour raises serious questions about the willingness of public institutions and our government to respect constitutional institutions and to obey the law. It suggests that instead of viewing the public protector as an ally who can assist in rooting out dishonesty, maladministration, corruption and criminal behaviour, some public institutions and government ministers view the public protector as an irritating impediment to impunity.

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Some days I yearn for the time before the National Assembly selected Thuli Madonsela as public protector. In those more innocent and altogether more soothing times, I could read a report of the public protector without having my remaining trust in the basic decency and honesty of most human beings shaken to the core.

Now, because South African journalists who are not employed by the SABC often hunt in packs (journalists from the SABC seldom hunt at all) they often manage to create a negative image of an individual that accords with their own agendas, anxieties and prejudices.

Once the pack identifies a public persona as worthy of scorn, the good publicity ends and the relentless, predictable vilification continues apace. Nuance, even-handedness, and any consideration of the other side of the story seldom come in to the equation. I therefore try to be circumspect and not to assume the worst of a public official or politician in the absence of clear evidence that he or she is a scoundrel.

Over the past week, as the hysteria around the appointment of Hlaudi Motsoeneng reached a crescendo, I wondered whether Mr Motsoeneng may not have been unfairly targeted in this way because of his (authoritarian-sounding) support for the licencing of all journalists. Maybe it is not such a big deal that Mr Motsoeneng does not have formal qualifications – as long as he does his job diligently and with the necessary integrity?

I therefore went back to the report published by the public protector earlier this year on the shenanigans at the SABC to determine whether Mr Motsoeneng was not being unfairly painted as a dishonest, bumbling, scoundrel. Sadly, in this instance, the report of the public protector suggests, if anything, that journalists have been too kind to Mr Motsoeneng.

The public protector found that when Mr Motsoeneng first applied for a job at the SABC he completed an application form in which he indicated that he had passed Standard 10 (“matric”) in 1991 at the age of 23. However, he only provided symbols for 5 subjects (in which he indicated he had attained 4 E and one F symbols).

During an interview with the public protector, Mr Motsoeneng admitted falsifying his matric qualification and blamed others, whom he said told him to make up his matric symbols from the top of his head, which he did. With regard to the matric certificate, the form says “outstanding”, giving the impression that the certificate exists and would be submitted in due cause.

The report quotes Mr Motsoeneng as telling the public protector:

From me … for now because I do understand all the issues, I was not supposed, to be honest. If I was … now I was clear in my mind, like now I know what is wrong, what is right, I was not supposed to even to put it, but there they said, “No, put it”, but what is important for me Public Protector, is everybody knew and even when I put there I said to the lady, “I’m not sure about my symbols” and why I was not sure Public Protector, is because I go, a sub, you know I remember okay in English I think it was “E”, because it was you know after … it was 1995.

The report quotes from several letters sent by the SABC HR Department in which Mr Motsoeneng is requested to provide a copy of his outstanding matric certificate. It also quotes an undated response from Mr Motsoeneng, in which he indicates that he was still not in possession of the said certificate. He undertook to provide it as soon as he received it.

Now, in law, you commit fraud – a criminal offence – when you unlawfully make a misrepresentation with the intention to defraud which causes actual prejudice or which is potentially prejudicial to another.

It would not be a defence to claim that another person had told you to commit fraud, just as it would not be a defence to murder to claim somebody else told you to kill a person. Neither is it a defence to fraud to say that your fraudulent representation was known to be fraudulent by many people.

Where you persist in your misrepresentation (as Mr Motsoeneng did when he promised to provide the “outstanding” matric certificate) it will be easier for the state to prove that you had the intention to defraud.

In law, the actual or potential prejudice need not be financial but can also be to reputation or dignity. More importantly it exists where some aspect of public administration is materially inconvenienced.

The fraudulent nature of the misrepresentation was confirmed by a 2003 SABC Group Internal Audit, which confirmed that Mr Motsoeneng had misrepresented himself by stating that he passed matric in 1991. The Group Internal Audit also established that when Mr Motsoeneng applied for an Executive Producer’s post at Lesedi FM in 2003, the requirements for the post was a Degree or Diploma in Journalism with eight years’ experience in the production of Radio Current affairs programme.

Given this overwhelming evidence and given the admission of wrongdoing by Mr Motsoeneng himself the public protector concluded:

The allegation that Mr Motsoeneng committed fraud by stating in his application form that he had completed matric from Metsimantsho High School is substantiated. By his own admission during his interview, Mr Motsoeneng stated in his application form that he had passed standard 10 (matric), filled in made-up symbols in the same application form and promised to supply a matric certificate to confirm his qualifications. He did so knowing that he had not completed matric and did not have the promised certificate. His blame of Mrs Swanepoel and the SABC management that stating that they knew he had not passed matric, is disconcerting. If anything, this defence exacerbates his situation as it shows lack of remorse and ethical conduct.

What seem particularly disconcerting is that Mr Motsoeneng persisted in his dishonest behaviour, first lying to the public protector by denying he misrepresented his matric results but then, after being confronted with the employment application, admitting to the fraudulent misrepresentation.

Three perplexing questions arise form this sorry saga.

The first is why Mr Motsoeneng had not been prosecuted for fraud. Why had the relevant authorities at the SABC not requested the police to investigate the alleged fraud perpetrated against the SABC by Mr Motsoeneng?

The second question that arises is why so many people – including the previous and current chair of the SABC Board – have been eager to support the employment of a confidence trickster like Mr Motsoeneng in one of the most important positions at the corporation?

The previous Chair told the public protector in writing that “the SABC perused Mr Motsoeneng’s file and could find no evidence that he misrepresented his qualifications.”. This could not have been true as Mr Motsoeneng left the SABC under a cloud in 2003 after its own Group Internal Audit investigation found that he had misrepresented his qualifications.

Now, as Prof Burchell states in his textbook on Criminal Law: “Fraud is the crime of the liar, the cheat, the confidence trickster”. Why have so many people – some of them of high standing – been prepared to support and protect a “liar”, a “cheat”, a “confidence trickster”? Was there political pressure on them to do so, or did they do so because of their own lack of a moral compass?

The third question that arises is why the newly appointed Minister for Propaganda, Faith Muthambi, would ignore the recommendations by the public protector that the SABC should take disciplinary steps against Mr Motsoeneng for his dishonesty, abuse of power and improper conduct. This failure is almost certainly irrational and I would be extremely surprised if a court does not set aside the decision to confirm Mr Motsoeneng’s appointment.

The failure is also in conflict with the stated policies of the governing party to be serious about rooting out maladministration and corruption. The office of the public protector was created to assist public officials – including ministers – to adhere to the law and to act in a manner that would enhance trust in public bodies like the SABC. Yet, in the case of Mr Motsoeneng the Minister ignored the findings of the public protector and acted in a way that further eroded public trust in the SABC. It cannot be in the interest of the governing party to destroy the credibility of the SABC as it would then be far less likely to be believed by ordinary voters.

The Presidency issued a carefully worded statement claiming that President Jacob Zuma “has no role to play in the appointment of SABC management or staff and did not play any role in the said appointment”. This non-denial denial did not state that the President had not communicated his wishes about the desired appointment to Minister Muthambi or had not “requested” her to ensure the appointment of Mr. Motsoeneng as COO.

Whether the appointment was done to comply with the wishes of President Zuma is not clear. In any event, the statement by the Presidency does not deny it.

What is very clear is that the bizarre statement by Minister Muthambi that an independent law firm’s legal opinion to the board “cleared Mr. Motsoeneng of wrongdoing” and thus renders the appointment rational is a legal nonsense.

In fact, the claim by the Minister that the opinion of a private lawyer can trump the official findings of a constitutional body like the public protector may arguably open the Minister to criminal prosecution for contempt of the public protector in contravention of section 9 of the Public Protector Act.

Why would a new Minister risk her career to endorse a clearly illegal decision that opens her up to criminal prosecution? Could it be that she was merely complying with the request/instructions of the person who appointed her as Minister? Only the minister and the president would be able to enlighten us.