by Iswamo Kapalu

How the Constitutional Court will shape the Public Protector’s Power.

“Pay back the money.” Over the last year or so these words have come to represent a national call for accountability over the unreasonable spending that took place at Nkandla. Yesterday those words found their way into the Constitutional Court. This seems to signal the end to a long and tiresome chapter in our democratic story; a chapter marked thus far by numerous attempts to avoid accountability, both by those who benefited from the overspending and those who actively oversaw it. Such avoidance was both aided and opposed by institutions that from the word go should really have been united in condemnation. A closely-toed party line deprived a South African citizenry, already too familiar with deprivation, of accountability. Further, it brought into disrepute the very institutions designed to act in our interests. But in all of this, one institution stood tall and rose to the call of its Constitutional duty- the Office of the Public Protector.

In March 2014, the Public Protector produced a report in which it was found that the President had unduly benefited from the non-security upgrades in Nkandla. The report directed that the President, amongst other things: “pay a reasonable percentage of the cost of the measures.” The question of the binding nature of the Public Protector’s remedial action and the legal implications of non-compliance therewith soon became the topic of a legal debate. It is this debate on which the Constitutional Court was asked to authoritatively weigh in on. There may still be some time before we get a decision out of the Court, but it is important to understand the parameters that will eventually shape the decision. This will help us understand the conflicting interests that the court will have to balance out in its judgement. In doing so it is helpful to look at the representations made by the various parties at Tuesday’s hearing.

All involved parties accepted the fact that the President was bound to comply with the remedial action mandated by the Public Protector’s report in this particular instance. This was in no small part due to the ruling of the Supreme Court of Appeal in the SABC v DA case last October which found that absent of review, remedial action proposed by the Public Protector is binding.

The President contended that this principle is context specific. He contended that, although it applied in the present circumstances, the principle ought to apply only in a case-by-case fashion. Although this approach carries an appreciable flexibility, it is also accompanied by the risk of the Public Protector’s office finding itself in legal battle after legal battle as our courts try to determine which remedial actions are binding and which ones are not. If the last two years are anything to go by, this question will be brought many times, legitimately or not, before our courts.

The Applicants (the Economic Freedom Fighters and Democratic Alliance) were united in seeking a declaratory order that would entrench the principle that the Public Protector’s remedial actions were binding. They further sought an order declaring that in failing to comply, the President had violated sections 83(c), 87 and 96 of the Constitution.

The President sought to have no declaratory order made with respect to the constitutionality of his actions. The logic employed was that the substantive matters had already been resolved and that there was no need for the declaratory order. The apparent motive, however, was the avoidance of a Constitutional Court judgement finding the President to have violated the Constitution. An order like this would likely give fuel for impeachment proceedings.

The Minister of Police, in explaining away his own involvement with the report, took the ‘Nuremburg Defence’ and claimed he was “just following orders” in producing his own report.

Personally, the most compelling party was the Speaker of the National Assembly. While it was agreed that the President was bound by the findings of the Public Protector, the Speaker would not concede that the National Assembly was similarly bound. Although this view received little support in the public discourse that has followed, my own legal instincts lead me to be sympathetic to this view. Although the ad hoc committee established by the National Assembly is widely accepted to have been a whitewash designed to avoid accountability, it was a constitutionally sound whitewash. This is because the President, irrespective of what the National Assembly found, was still bound to pay back the money. Any whitewashing was done simply to avoid political accountability.

To find that the National Assembly could be bound by the findings of one, unelected, official would undermine the functioning and independence of the National Assembly. It would effectively reduce it to the enforcement arm of the Public Protector’s office. Noble as the reasons for doing so may be, this remains dangerous water to wade into when one remembers that the Public Protector isn’t in itself a person of impeccable moral character but rather an office that could be occupied at any time by any manner of despot.

Collectively, these submissions reveal a tension of competing considerations. It is a tension that exists between duly empowering our Public Protector to be able to act effectively, and ensuring that the office of the Public Protector does not become so powerful that other democratic institutions are undermined by such. The Court must find a balance between the need for accountability and the need for restraint, and between certainty in law and flexibility in application. The court will also have to decide whether they’ll expose the President to impeachment proceedings by declaring him to have violated his constitutional duty, or take the conservative and safe route by accepting his settlement offer without any further declarations. Striking these balances and making these decisions will take great wisdom.