Emboldening a Country in Distress - The South African Constitutional Court on Nkandla

Raisa Cachalia

South African Institute for Advanced Constitutional, Public, Human Rights and International Law, University of Johannesburg

The office of the Public Protector is one of six institutions established in Chapter 9 of the Constitution of the Republic of South Africa, 1996 to support constitutional democracy (often referred to as ‘Chapter 9 institutions’). While it is modeled on the Swedish Ombudsman – with the power to keep government action in check – the Public Protector is a unique creation with more power than comparable institutions in foreign jurisdictions.

South Africa has several active ombudsmen (that oversee the insurance industry and the press, for instance) but the Public Protector is distinct. Originating from a pre-constitutional office known as the Advocate-General (which had a limited mandate to investigate the improper use of public money), the designers of the Constitution deliberately fashioned a new institution with entrenched independence and much more power: Not only must the Public Protector oversee the actions of other branches of government by investigating and reporting on state impropriety, it may also ‘take appropriate remedial action’ – a controversial power and the subject of recent litigation.

The ruling African National Congress’s (ANC) overwhelming parliamentary majority since 1994 means democratic accountability – through fear of electoral loss – is very limited. This gives Chapter 9 institutions and, pertinently, the courts, a role of special importance in South African public life. Especially significant was the court battle between the Public Protector and the widely criticized President, Jacob Zuma. It was therefore most welcome, when, earlier this year, Chief Justice Mogoeng, on behalf of a unanimous Constitutional Court, handed down the so-called Nkandla judgment which dealt with the powers of the Public Protector in relation to her report on the elaborate ‘security’ upgrades to President Zuma’s private residence. The Court’s finding – that remedial action taken by the Public Protector cannot be ignored, has binding effect, and must be complied with – is of immense significance.

The Nkandla debacle

In March 2014, Public Protector Thuli Madonsela released a Report on the lavish R246 million upgrade to President Zuma’s Nkandla home in KwaZulu-Natal. The Report found that the upgrades were excessive, unconscionable and improperly benefitted the President and his family. Invoking her remedial powers, Ms Madonsela ordered the President to pay back part of the costs of the non-security related upgrades (the visitor’s centre, amphitheatre, swimming pool, cattle kraal and chicken run).

Instead of complying with the Report, the President together with the National Assembly embarked on a series of parallel processes that second-guessed Ms Madonsela’s findings and, in the end, exonerated the President of all wrongdoing.

After years of public criticism of the President’s handling of the debacle, angry opposition parties turned to the Constitutional Court for a ruling on the legal status of the Public Protector’s findings. In particular, it asked the Court to confirm an earlier decision of the Supreme Court of Appeal (SCA) on the same issue – but in the context of a Public Protector report on the alleged misconduct and flawed appointment of the Chief Operating Officer of the South African Broadcasting Corporation (SABC), Hlaudi Motsoeneng. While the High Court in the SABC matter said that the Public Protector makes mere recommendations that can be departed from provided there are rational reasons for doing so, the SCA held on appeal that the Public Protector’s findings are automatically binding, and can be departed from only if reviewed and set aside by a court. According to the SCA, treating her reports as mere recommendations would relegate the office to the status of a toothless watchdog.

The Public Protector’s remedial powers

The Constitutional Court, confirming the approach of the SCA in SABC, said that the remedial action taken by the Public Protector on Nkandla was legally binding and, barring a successful review, had to be complied with. In reaching this conclusion, the Court adopted a ‘purposive approach’ to constitutional interpretation, reasoning that, for the Public Protector’s office to realize its mandate to strengthen South Africa’s constitutional democracy by holding government officials to account, it is necessary that she can issue instructions with binding force. That would prevent other branches from ignoring her findings, as had happened in the Nkandla case.

But does a purposive approach necessitate such a high standard? One of the criticisms of the Court’s approach was that, giving the Public Protector such robust powers may mean that, absent a costly and time-consuming judicial review, it is possible to be stuck with bad or unfair findings. As one commentator noted, this might be especially troubling if the revered Ms Madonsela – whose period in office is due to expire – is replaced with a weak political appointment.

For this reason, it was open to the Court to adopt a middle path between the relatively high, legally binding standard and the lighter standard of rationality. Such a position would, for example, allow a public official with good reasons to decide not to comply with remedial action – effectively shifting the onus to the Public Protector to defend her findings in court. But the Constitutional Court was adamant: the Public Protector would be ineffective if those under investigation were at liberty to depart from her findings. It is inconsistent with the rule of law for government officials to pick and choose which decisions by a key institution of constitutional accountability are binding upon them: that is a job reserved for the courts.

 Breach of the Constitution

The Court went on to make a number of far-reaching findings concerning the breach of the Constitution by both the President and Parliament. It found, in strong terms, that President Zuma had contravened the Constitution because he failed to implement the Public Protector’s instructions without having her report set aside by a court. It also made adverse findings against Parliament, holding that it had failed in its duty to hold the President to account.

The Court said that there is nothing wrong in itself with the President, or Parliament, embarking on a parallel investigatory process, but this, it made clear, was a mere means of deciding whether to institute a court application to have the report set aside. It was not open to President Zuma or the National Assembly – in the absence of a court challenge – to prefer the outcome of a process that would trump the Public Protector’s report.

Tellingly, the Court not only ordered the President to comply with the Public Protector’s report, but imposed a structural interdict requiring that the National Treasury, whose head is fiercely independent, to determine the amount to be repaid, after which Zuma must pay back the money for the non-security related upgrades – or answer, once again, to the judges of the Constitutional Court.

Impeachment

 Following the hype of the judgment, the opposition set out to have the President impeached. The bid failed, with some saying the Court’s judgment failed to do what it was supposed to: have Zuma impeached. However, the judgment was not about impeachment.

Section 89 of the Constitution says that the President may be impeached for ‘a serious violation of the Constitution’ if there is support from two-thirds of MPs. And, the opposition – garnering only 143 of the 243 votes required – simply did not have the numbers. The opposition could still table a motion of no confidence in the President – a different procedure, provided for in section 102 of the Constitution and requiring only a simple majority. But this outcome is less attractive to an opposition seeking to strip President Zuma of all the benefits of his office. And, with the ANC still firmly in control of Parliament, even this softer procedure is unlikely to succeed.

While this case has in many ways tested the resilience of South Africa’s institutions in the face of unyielding pressure, government recalcitrance and even political scorn, it is sobering that by the time the Court’s order is fully implemented it will have taken more than seven years to ensure the President pays back what he owes. And, even in the wake of a failed effort to impeach the President and calls from former ANC-struggle stalwarts for Zuma to stand down — not to mention the more than 700 charges of corruption still pending against him — the legal import of the judgment must not be lost: the Public Protector’s powers to enhance state performance and accountability have been significantly expanded.

Raisa Cachalia is a researcher at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law, a centre of the University of Johannesburg and Author at the African Legal Centre. Raisa has BA, LL.B. and LL.M. degrees (cum laude from the University of Witwatersrand, Johannesburg. In 2013 she was admitted as an Attorney of the High Court of South Africa and went on to clerk at the South African Constitutional Court in 2013-2014. Raisa has been on Caveat Legal's (Pty) Ltd panel of legal consultants since 2014. This article is a reworked version of a series of articles published on the African Legal Centre website on the Nkandla judgment.