Law­son Naidoo

CityPress - - Careers & Voices - Richard Calland Naidoo and Calland are mem­bers of the Coun­cil for the Ad­vance­ment of the SA Con­sti­tu­tion, which Naidoo serves as ex­ec­u­tive di­rec­tor. Calland is also as­so­ciate pro­fes­sor in pub­lic law at the Univer­sity of Cape Town

Three weeks ago, it was Pres­i­dent Ja­cob Zuma who was push­ing mod­ern South Africa to­wards its first ma­jor con­sti­tu­tional cri­sis by re­fus­ing, in a hos­tile let­ter, to ac­cept the au­thor­ity of the Pub­lic Pro­tec­tor, Thuli Madon­sela.

Now it is Par­lia­ment, or at least the ANC mem­bers of the ad hoc com­mit­tee on Nkandla, who, in seek­ing to pro­tect their pres­i­dent, have taken over that role.

But strip away the fil­i­buster and flan­nel, and it is the same is­sue that lies at the heart of the mat­ter: are Madon­sela’s rec­om­men­da­tions bind­ing on the gov­ern­ment? “No,” says the ANC. Sec­tion 182(1)(c) of the Con­sti­tu­tion says the Pub­lic Pro­tec­tor “has the power ... to take ap­pro­pri­ate re­me­dial ac­tion”.

The Con­sti­tu­tional Court has not yet been pro­vided with an op­por­tu­nity to in­ter­pret what this pro­vi­sion means, but that day might not be far off.

The ANC as­serts that Madon­sela’s rec­om­men­da­tions are merely ad­vi­sory and can, in ef­fect, be sec­ond-guessed by Pres­i­dent Zuma and Par­lia­ment.

If the ar­chi­tects of the Con­sti­tu­tion had in­tended the Pub­lic Pro­tec­tor’s find­ings to be “ad­vi­sory” rec­om­men­da­tions, then they would have said so since, in most cases, the re­me­dial ac­tion will be im­ple­mented by the gov­ern­ment, not by Madon­sela’s of­fice – ‘take’, in con­text, must there­fore mean or be anal­o­gous in its mean­ing to ‘or­der’.

In the Nkandla case, she ruled that Zuma should pay back a rea­son­able amount of the cost of the up­grades that should not have been borne by the pub­lic purse.

The Pub­lic Pro­tec­tor’s view, ex­pressed in an af­fi­davit she at­tested to in another case – the DA v SABC & oth­ers (where the DA chal­lenged the ap­point­ment of Hlaudi Mot­soe­neng as COO of the SABC by the min­is­ter of com­mu­ni­ca­tions) – that “re­ports is­sued by me, in the ex­e­cu­tion of the con­sti­tu­tional man­date con­ferred on the in­sti­tu­tion of the Pub­lic Pro­tec­tor, are bind­ing and en­force­able un­less set aside by or­der of court fol­low­ing a re­view ap­pli­ca­tion”.

If the ex­ec­u­tive or Par­lia­ment were to re­view the re­me­dial ac­tion, this would un­der­mine the au­thor­ity of the Pub­lic Pro­tec­tor. Sec­tion 181(2) states ex­plic­itly that chap­ter 9 bod­ies are “in­de­pen­dent, and sub­ject only to the Con­sti­tu­tion and the law”.

Like all chap­ter 9 in­sti­tu­tions, the Pub­lic Pro­tec­tor is ac­count­able to the Na­tional Assem­bly, but this can­not mean that Par­lia­ment can tam­per with its re­ports or find­ings.

In terms of sec­tion 181(5) of the Con­sti­tu­tion, chap­ter 9 in­sti­tu­tions “must re­port on their ac­tiv­i­ties and per­for­mance of their func­tions to the Assem­bly at least once a year”. This ac­count­abil­ity re­lates to the over­all per­for­mance of its man­date, bud­get and ad­min­is­tra­tion, among oth­ers.

On a spe­cific in­ves­ti­ga­tion, it is Par­lia­ment’s re­spon­si­bil­ity to support the Pub­lic Pro­tec­tor and en­sure that the ex­ec­u­tive – which is also ac­count­able to Par­lia­ment – im­ple­ments the re­me­dial ac­tion.

The ANC del­e­ga­tion in the ad hoc com­mit­tee asks: “How can the Pub­lic Pro­tec­tor’s au­thor­ity be greater than the elected mem­bers of Par­lia­ment?”

The le­gal an­swer is sim­ple. In the mid-1990s, South Africa turned its back on par­lia­men­tary sovereignty and chose to be a con­sti­tu­tional democ­racy. The Con­sti­tu­tion, not Par­lia­ment, is supreme. Thus, as a con­sti­tu­tional body, the Pub­lic Pro­tec­tor’s word is fi­nal, not that of Par­lia­ment.

That the ANC blocked the ad hoc com­mit­tee from tak­ing le­gal opin­ion on the main point at is­sue sug­gests that it is con­temp­tu­ous of the law and the Con­sti­tu­tion, even though this may ren­der Par­lia­ment more vul­ner­a­ble to a le­gal chal­lenge on the ground of ir­ra­tional­ity.

If the ANC dis­re­gards the re­me­dial ac­tion in the Pub­lic Pro­tec­tor’s re­port and tries to get Zuma off the Nkandla hook, then a con­sti­tu­tional cri­sis is in­evitable.

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