As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
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.