Who’d win a theoretical fight?

The Nkandla issue has not actually seen a stand-off between the National Assembly and the public protector, said advocate Lindi Nkosi-Thomas on behalf of the speaker, Baleka Mbete. “She does not order the National Assembly to do anything.” And so Parliament could not be said to have defied Thuli Madonsela and there was no reason to worry about who ranked where, legally.

That line of argument did not satisfy Chief Justice Mogoeng Mogoeng at all, leading to a long exchange. Nkosi-Thomas claimed Parliament had “at no stage” sought to nullify Madonsela’s findings, and that Parliament could not be expected to force the president to accept the findings because it is not an enforcer.

Various advocates argued that Madonsela’s office could not be seen as above or outside the law because Parliament could, as advocate Wim Trengove put it, “significantly” regulate her power.

The legislature, said advocate Carol Steinberg for Corruption Watch, can prescribe the kind of remedies the public protector may use. “Parliament is free … to regulate in any amount of detail the manner of her powers, as long as it doesn’t take that power away.”

Other aspects of the public protector’s powers have been tested in various courts, Nkosi-Thomas said, but how that office relates to Parliament had never had such “multistage judicial attention”, implying the court should hold back on deciding who the theoretical winner would be in a theoretical fight. —