An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
CASAC Statement: Public Protector’s Report on Nkandla 24 March 2014
The Public Protector is appointed under the Constitution to strengthen constitutional democracy by probing improper conduct and maladministration in state affairs. In her report on the upgrades at the President’s private residence at Nkandla she has found that the President has violated the Constitution.
The Council for the Advancement of the South African Constitution (CASAC) believes that under these circumstances, it is necessary to consider whether the violation is of such a serious nature to require invoking the provisions of section 89 (1) of the Constitution. In our opinion, the issue is whether it would be constitutionally intolerable for the President to remain in office.
The Public Protector has made a positive finding that the President acted in breach of section 96(1) and (2) of the Constitution (paragraphs 10.10.1.5 and 10.10.1.6 of the Public Protector’s report). These sections place two obligations on the President. First, he must comply with the code of ethics for members of the Executive. Second, he must not act in a manner inconsistent with his office or expose himself to a situation of a conflict of interest.
CASAC Executive Secretary, Lawson Naidoo says: “The Public Protector has found that the President violated both constitutional duties. First, by wearing “two hats” as guardian of the country’s resources and as a direct personal beneficiary of improper privileges, he violated the duty to avoid placing his personal interests in conflict with those of the state. Second, by failing to cause an investigation as soon as he became aware of the expenditure into his home, he acted in a manner inconsistent with the duty to protect public funds.”
Section 89(1) (a) provides that the President may be removed from office by a resolution supported by two thirds of the members of the National Assembly, for a “serious violation” of the Constitution or the law, or in terms of s. 89 (1)(b) for “serious misconduct”. Given the findings of the investigation as a whole, the quantum of the monies expended and the role of the President, it would be difficult to sustain any argument that the findings of the Public Protector do not amount to serious violations or misconduct.
CASAC therefore believes that it would be constitutionally intolerable for Parliament not to consider whether the constitutional violation or the misconduct identified by the Public Protector fall within the category of violations in section 89 (1).
We call upon the Speaker of the National Assembly to convene a sitting of that House to deliberate on this matter.
For further enquiries please contact Lawson Naidoo 073 158 5736 or 021 685 8809 Lawson@casac.org.zaBACK TO TOP