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 is unclear why an ad hoc Committee of the National Assembly (NA) is considering a report prepared by Police Minister Nathi Nhleko on the remedial action imposed by the Public Protector regarding the use of public funds for the renovation of President Jacob Zuma’s private home at Nkandla. In terms of the Executive Members Ethics Act and the Constitution, the President (not the Minister nor the NA) is legally responsible for implementing the remedial action imposed by the Public Protector. Only the President can make a legally valid decision not to obey the remedial action imposed and then only if he acts rationally on the basis of cogent reasons.
Section 3 of the Executive Members Ethics Act of 1998 empowers the Public Protector to investigate breaches of the Executive Members Ethics Code by the President and other members of the Executive. Only the Public Protector is empowered by the Act to make findings on breaches of the Code. Ministers and Parliamentary Committees are not authorised to make findings about breaches of the Ethics Code. Any reports on this from these bodies therefore have no legal standing.
Section 3(2) of the Act requires the Public Protector to submit a report on breaches of the Code of Ethics to the President for appropriate action. Section 3(5) then states:
The President must within a reasonable time, but not later than 14 days after receiving a report on a Cabinet member or Deputy Minister referred to in subsection 2 (a), submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto, to the National Assembly.
As the President is the head of the National Executive (in terms of section 85 of the Constitution) and has the power to appoint and dismiss members of the National Executive in terms of section 91(2) of the Constitution, it is appropriate that the Act empowers the President to take action against members of the Executive found to have breached the Code of Ethics.
However, as the Public Protector has pointed out previously, the drafters of the Act did not envisage a situation in which the President himself is found guilty of a breach of the Code of Ethics. This means the Act empowers the President to decide whether to implement the remedial action imposed by the Public Protector in the wake of a finding of a breach of the Ethics Code by the President himself.
Section 182 of the Constitution, read with section 6(4) of the Public Protector Act also empowers the Public Protector to investigate, on his or her own initiative or on receipt of a complaint, any alleged: maladministration; certain forms of corruption; or improper or unlawful enrichment.
In terms of the High Court judgement on the powers of the Public Protector (which must guide the discussion until such time as the Constitutional Court gives a definitive answer on the powers of the Public Protector), the remedial action imposed by the Public Protector are not binding in the same manner as a court order would be binding. However, the High Court also held that the findings and remedial action imposed by the Public Protector cannot be ignored by the President.
[T]he fact that the findings of and remedial action taken by the Public Protector are not binding does not mean that these findings and remedial action are mere recommendations, which an organ of state may accept or reject…. an organ of state cannot ignore the findings and remedial action of the Public Protector.
The High Court held that before rejecting the findings and remedial action of the Public Protector, the relevant organ of state (in this instance, the President) must have “cogent reasons” for doing so. Merely having a different view than the Public Protector about the appropriate findings and remedial action would not constitute “cogent reasons”. And where the relevant organ of state fails to implement the findings and remedial action of the Public Protector, a court can review and declare such a decision unlawful and invalid.
Where the President refuses to implement the remedial action imposed by the Public Protector, he or she can also be held accountable by the NA and can, ultimately, be removed from office by a majority vote in the NA if the majority loses confidence in the President. To this end, section 8(2) of the Public Protector Act provides for a report of the Public Protector to be submitted to the NA and for the NA to consider the report and to decide whether it would be appropriate to remove the President from office or not.
This does not mean the ultimate legal duty to deal with the remedial action imposed by the Public Protector lies with the NA or the Minister. It would be in breach of the separation of powers if the NA purports to make decisions on behalf of any member of the executive – including the President. All the NA can do is call members of the executive to account where such members fail to implement the remedial action imposed by the Public Protector and, in extreme cases, to remove the President and cabinet from office for failing to fulfil their legal duties.
The Public Protector made several important findings in her Nkandla report and directed that several bodies take remedial action in terms of it. In the most important finding that directly implicates the President, she found that when news broke in December 2009 of alleged exorbitant amounts spent at Nkandla (at the time R65 million), the President had a duty to take reasonable steps to order an immediate inquiry into the situation and to correct any irregularities and excesses. This is because the President, as head of the Executive, has the ultimate legal and constitutional obligation to ensure ethical government and to prevent self-enrichment of members of the Executive.
The Public Protector hence found that the failure of the President to do so and to act in protection of state resources constituted 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.
Recall that the Public Protector found that when President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them, this statement was not true. Curiously the Public Protector nevertheless accepted the evidence that the President “addressed Parliament in good faith” and therefore did not lie in breach of the Ethics Code.
In other words, while he did not tell the truth, he did not lie. This finding may well be reviewed and set aside by a court of law on the basis that it was irrational as it is unclear how one can find that a person did not tell the truth but can then find that the person did not lie.
Be that as it may, regarding the finding of a breach of the Executive Ethics Code, the Public Protector imposed the following remedial action on the President, ordering him the to:
11.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW 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.
11.1.2. Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.
11.1.3. Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
11.1.4. Report to the National Assembly on his comments and actions on this report within 14 days.
When the President decided to ignore this remedial action and to ask the Minister of Police to determine whether he should repay any of the money and if so what amount, the legal question arose as to whether the President had offered “cogent reasons” for refusing to implement the remedial action imposed by the Public Protector and if such cogent reasons existed at the time when the President made this decision. Thus far the President has not offered such cogent reasons for his decision to anyone.
The role of the NA, as the democratically elected branch who is constitutionally mandated to hold the President accountable, is to ask the President why he had refused to implement the remedial action imposed by the Public Protector. It is unclear why the NA is engaging with another report then prepared by the Minister of Police on the matter, as legally the Minister of Police was not empowered or entitled to decide on whether the remedial action imposed by the Public Protector should be implemented or not. In other words, the NA is focusing on the wrong decision by the wrong person.
The President cannot delegate a power entrusted to his office by legislation and by the Constitution to a Minister as that would constitute an abdication of power. As the Constitutional Court stated in President of the Republic of South Africa and Others v South African Rugby Football Union and Others “[w]hen contemplating the exercise of presidential powers, …[w]hat is important is that the President should take the final decision”.
In terms of the Ethics Code and the Constitution (read with the High Court judgment) that obligation rests with the President to make a decision either to implement the remedial action or not to implement it and to be held accountable for this decision. The purported attempt by the President to delegate this duty to the Minister of Police is an abdication of his responsibilities and in my opinion hence unlawful.
The NA may, of course, for political reasons, decide not to hold the President accountable and not to engage with his decision to ignore the remedial action. But by focusing on the decision of the Minister of Police the NA is really misconstruing its duty to hold the person accountable who is legally responsible for the decision either to implement or not to implement the remedial measures imposed by the Public Protector.
As long as the High Court judgment stands, the only relevant legal question is whether the President had cogent reasons for not implementing the remedial action imposed by the Public Protector. The only person who can provide such cogent reasons is the President. The Minister cannot provide such reasons on behalf of the President as the Minister did not make the decision not to implement them.
It seems to me in the light of this legal position the work of the ad hoc Committee on Nkandla is really a side show with little or no legal standing or effect. It is focusing on the wrong person (the Minister of Police) and the wrong decision (his report “exonerating” the President).
The only relevant decision is the one taken by the President not to take advice from the Treasury as to the amount to be paid back but rather to ignore the Public Protector’s findings and to ask the Minister of Police to review these findings. Was this decision rational and hence are there cogent reasons for this decision?
Ultimately, when this matter reaches the courts, I suspect this will be the question they will ask. The report by the Minister of Police (and the strange but irrelevant engagement of the NA with it) will merely become a humorous footnote in the seemingly never ending scandal.
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