Which Con­sti­tu­tional cri­sis?

Mathole Mot­shekga

CityPress - - Voices - Mot­shekga is an MP and sits on the Nkandla ad hoc com­mit­tee

In an ar­ti­cle ti­tled “Nkandla: Anatomy of a Con­sti­tu­tional Cri­sis” (City Press, Oc­to­ber 5 2014), Richard Calland and Law­son Naidoo say that South Africa “has been plunged into what is ar­guably a con­sti­tu­tional cri­sis”.

The au­thors quote Wikipedia’s def­i­ni­tion of a con­sti­tu­tional cri­sis as “a sit­u­a­tion that the le­gal sys­tem’s con­sti­tu­tion or other ba­sic prin­ci­ples of op­er­a­tion ap­pear un­able to re­solve; it of­ten re­sults in a break­down in the or­derly op­er­a­tion of gov­ern­ment. Of­ten, gen­er­ally speak­ing, a con­sti­tu­tional cri­sis is a sit­u­a­tion in which sep­a­rate fac­tions within a gov­ern­ment dis­agree about the ex­tent to which each of th­ese fac­tions holds sovereignty. Most com­monly, con­sti­tu­tional crises in­volve some de­gree of con­flict be­tween dif­fer­ent branches of gov­ern­ment…”

In Par­lia­ment, there are no fac­tions hold­ing sov­er­eign power. Each of the po­lit­i­cal par­ties rep­re­sents a sec­tion of the South African pop­u­la­tion and not a fac­tion. The rul­ing party, the ANC, rep­re­sents the majority of the peo­ple.

The ANC is al­ways open to per­sua­sion and it has al­ways urged other par­ties to en­gage rather than with­draw from the par­lia­men­tary pro­cesses.

Ad hoc com­mit­tee

The Na­tional Assem­bly es­tab­lished an ad hoc com­mit­tee to con­sider re­ports on the Nkandla se­cu­rity up­grades. All po­lit­i­cal par­ties rep­re­sented in Par­lia­ment agreed to con­sider the rec­om­men­da­tions em­a­nat­ing from th­ese re­ports, and to make rec­om­men­da­tions to Par­lia­ment.

There are only two mat­ters em­a­nat­ing from the Nkandla re­port that are be­fore Par­lia­ment.

First is whether or not the find­ings and re­me­dial ac­tions of Par­lia­ment are bind­ing on the ex­ec­u­tive and on Par­lia­ment. Se­condly, whether or not the Pres­i­dent’s re­sponse to the Pub­lic Pro­tec­tor’s re­port to Par­lia­ment is ad­e­quate or in­ad­e­quate.

An­swers to th­ese ques­tions are of a le­gal na­ture and do not re­quire fur­ther ev­i­dence by any­one di­rectly re­ferred to in the re­ports be­fore the ad hoc com­mit­tee.

Pow­ers of the Pub­lic Pro­tec­tor

In a nutshell, Calland and Naidoo main­tain the Pub­lic Pro­tec­tor has the power to or­der that cer­tain ac­tion be taken, and that Par­lia­ment must sim­ply en­sure the find­ings made are im­ple­mented.

This stand­point does not ac­knowl­edge the fun­da­men­tal role of the doc­trine of sep­a­ra­tion of pow­ers. It raises the ques­tion of whether or not the Pub­lic Pro­tec­tor’s de­ci­sions are legally bind­ing or en­force­able.

I am of the view that the Pub­lic Pro­tec­tor is not a court of law and her de­ci­sions can­not be bind­ing on the ex­ec­u­tive and Par­lia­ment with­out violating the doc­trine of sep­a­ra­tion of pow­ers.

In the case of the Pub­lic Pro­tec­tor v Mail & Guardian, the Supreme Court of Ap­peal (SCA) made it clear that the Pub­lic Pro­tec­tor per­forms in­ves­tiga­tive func­tions: “His or her man­date is an in­ves­ti­ga­tory one re­quir­ing proac­tion.” Her/his func­tions are not ad­ju­dica­tive or de­ter­mi­na­tive. This means that, un­like an om­buds­man, the Pub­lic Pro­tec­tor can be proac­tive by ini­ti­at­ing in­ves­ti­ga­tions.

In line with this, the SCA found in the Mail & Guardian case that the Pub­lic Pro­tec­tor does not ad­ju­di­cate or de­ter­mine dis­putes be­tween par­ties (para­graph 9) by ap­ply­ing the law to the facts. This is a func­tion re­served for courts and tri­bunals, as con­tem­plated in the Con­sti­tu­tion.

To en­able the Pub­lic Pro­tec­tor to ful­fil his/her in­ves­tiga­tive man­date, the Con­sti­tu­tion gave the Pub­lic Pro­tec­tor the power: To re­port on the con­duct in­ves­ti­gated. To take ap­pro­pri­ate re­me­dial ac­tion. Un­like with courts, nowhere does the Con­sti­tu­tion pro­vide that a find­ing or ac­tion – decision – of the Pub­lic Pro­tec­tor “binds all per­sons to whom and or­gans of state to which it ap­plies”.

Had the Con­sti­tu­tion in­tended to con­fer sim­i­lar pow­ers on the Pub­lic Pro­tec­tor (pow­ers to make fi­nal and bind­ing de­ci­sions) as it has on the courts, it would have con­tained a sim­i­lar pro­vi­sion. This po­si­tion is sim­i­lar to that of other com­pa­ra­ble chap­ter 9 in­sti­tu­tions. With re­gard to tri­bunals en­vis­aged in the Con­sti­tu­tion, their pow­ers to make bind­ing de­ci­sions are con­ferred by their en­abling, em­pow­er­ing na­tional leg­is­la­tion.

In case of the Pub­lic Pro­tec­tor, the en­abling na­tional leg­is­la­tion – the Pub­lic Pro­tec­tor Act – did not make the reme­dies rec­om­mended by the Pub­lic Pro­tec­tor bind­ing.

It must be borne in mind that the Con­sti­tu­tion con­fers pow­ers on the of­fice of the Pub­lic Pro­tec­tor as de­fined by na­tional leg­is­la­tion.

It would be ab­surd for the Con­sti­tu­tion and the Pub­lic Pro­tec­tor Act to make de­ci­sions by the of­fice of the Pub­lic Pro­tec­tor – which is not a court of law or a sim­i­lar tri­bunal – bind­ing on the ex­ec­u­tive and Par­lia­ment. This would en­able the of­fice of the Pub­lic Pro­tec­tor to en­croach on the pow­ers of the ex­ec­u­tive and Par­lia­ment in vi­o­la­tion of the doc­trine of sep­a­ra­tion of pow­ers.

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