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.

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