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.
It has been almost a month since Public Protector Thuli Madonsela issued her damning report on the manner in which a lease was negotiated for new police headquarters in Durban. In the report she found that both the Minister of Public Works and the Police Commissioner had acted unlawfully and was guilty of maladministration.
So far President Jacob Zuma, who is legally entitled to appoint and hence also to fire the relevant Minister and the Police Commissioner, has done very little – except to “study” the report and to pass the buck by handing the report to Parliament for further “processing”. Parliament, of course, is constitutionally required to hold the President as well as the Minister and the Commissioner to account, but Parliament cannot take action against either. Only the President can do that.
By referring the report to the Speaker of Parliament, who in turn referred the matter to Parliament’s Standing Committee on Public Accounts (Scopa), the President has signalled that he is at best reluctant to act on the recommendations contained in the report and at worst is trying to evade responsibility altogether by needlessly asking Parliament to deal with a report on whose recommendations it has no real power to act.
Themba Godi, chairperson of the spending watchdog committee, confirmed that the reports had been referred by National Assembly Speaker Max Sisulu to the committee two weeks ago. He said he was seeking advice from parliamentary legal advisers on how to proceed because this was the first time that the committee would be dealing with a report by the Public Protector and it was thus uncharted territory.
Section 8 of the Public Protector Act requires the Public Protector to submit to Parliament half-yearly reports on the findings in respect of investigations of a serious nature, which were conducted during the half-year concerned. The Public Protector must also submit a report to Parliament on the findings of a particular investigation if she deems it necessary or in the public interest; if it requires the urgent attention of, or an intervention by Parliament; if she is requested to do so by the Speaker of the National Assembly; or if she is requested to do so by the head of the NCOP.
Section 9 of the Act also makes clear that there is nothing that prohibits Parliament from considering any report issued by the Public Protector and from debating it. Parliament just has no power to do the President’s work for him.
There would therefore be nothing wrong with Scopa – after studying the report – calling both the Minister and the Commissioner to come and explain themselves and by asking them some of the hard questions which the President should have asked them when the report was published. In this way Parliament can play its oversight role by demanding answers from two of the main culprits involved in this scandal. Parliament can also call former Minister Geoff Doidge to get clarity on whether the current Minister lied to the Public Protector about the handover of her Ministry, something which would constitute a criminal offense in terms of section 11(3) of the Act.
In other words, Scopa can do some of the work the President should have done long ago – although it cannot do all the President’s work for him even if it wanted to as it cannot usurp the power of the executive to discipline or even fire the Minister and the Commissioner. While Parliament can therefore further engage with the culprits it is powerless to take action against the culprits. It is also powerless to rewrite the report of the Public Protector and to undo the findings made by the Public Protector. Only a court of law can review and essentially undo the findings made by the Public Protector.
No matter what Parliament does, the findings of the Public Protector stands unless the findings are reviewed and overturned by a court of law.
It therefore makes little sense that Parliament was asked to engage with the report, as Parliament can do very little about the findings made in the report. This suggests that the only reason the report was referred to Parliament was to tie up the findings of the report in essentially meaningless bureaucratic processes in order for President Zuma to be able to claim that something is being done about the findings while nothing is actually being done.
As a last resort, Scopa can also call the President before it to come and explain what action he is intending to take against those found to have acted unlawfully and if he is not intending to take any action why he is doing so and why he is ignoring a report of the Public Protector. This is because the President – as the head of the executive – is accountable to Parliament and serves at the pleasure of Parliament – at least on paper. Like other organs of state the President has a duty to respect the independence of the Public Protector and not to act or fail to act in such a way that he undermines its efficiency.
Invoking section 181(3) of the Constitution, Scopa can demand that the President act on the report, as a failure to act would fatally hamper the effectiveness of the Public Protector. Recall that section 181(3) states that organs of state, through legislative and other measures, must assist and protect the institution of the Public Protector to ensure her independence, impartiality, dignity and effectiveness. To protect its effectiveness it needs to put as much pressure as it legally can on the Executive to implement the recommendations of the Public Protector.
But even if Scopa took the unprecedented move of calling the President before it to account for his failure to act against maladministration and alleged corruption, Parliament cannot legally instruct the President what course of action he should take. Neither can Parliament absolve the President of the duty to act on the recommendations of the Public Protector. No matter how Scopa deals with the report, it is only the President that can act on it.
The fact that the President has seemingly chosen not to act on the report at all tells its own story, I guess. The utter failure to act on the report makes one wonder whether the Minister or the Police Commissioner might not be in possession of incriminating evidence of some sort – evidence that might implicate the President, those close to him or the ANC – which have made either of these two throroughly bad eggs politically untouchable. Is there another “family trust” out there that we need to know about? Just wondering.
PS: This morning I received the following email from the spokesperson for the Speaker of the National Assembly:
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Good day Pierre
I am writing to let you know that the Speaker of the National Assembly has not referred the PP’s report to SCOPA. There was an error on the ATC of 27 July which error Mr Godi interpreted to mean that the report had been referred to SCOPA. I will issue a statement later in the day clarifying things, but in the meantime thought I would let you know so that you can correct your piece on constitutionallyspeaking.
Speaker of the National Assembly