Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
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:
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.BACK TO TOP