Law Experts Explain How Concourt Erred On Nkandla Ruling
In February 2015, the Law Society of South Africa (LSSA), which represents all attorneys and speaks nationally on behalf of the attorneys’ profession, convened a colloquium specifically to debate whether the public protector’s findings were legally binding.
On the panel were Deputy Minister of Justice and Constitutional Development John Jeffrey, Public Protector Thuli Madonsela, retired Concourt justice Zac Yacoob, deputy head of the School of Law at the University of the Witwatersrand Professor Mtende Mhango and the executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo.
With the exception of Madonsela, all the speakers agreed that the remedial measures of the public protector were “not legally binding” on anyone.
Concourt's Error Explained
The judgment fails to provide guidance to government departments and Parliament on resolving disputes between the public protector and state officials who may have plenary authority over certain matters. Succinctly, the executive and National Assembly were faced with conflicting constitutional duties in Sections 182(1)(b) and 198 respectively.
The strenuous insistence that they could determine for themselves what items were security-related proceeds from their views of their plenary powers under Section 198.
The judgment is remarkably long on the constitutional basis for the powers of the public protector but very short on the constitutional powers of the executive and Parliament when it comes to matters of national security.
It omits entirely a mention of Section198(d) of the Constitution which unambiguously states that “national security is subject to the authority of Parliament and the national executive.”
Inexplicably, the Concourt discusses the specific constitutional obligation imposed on the president and National Assembly by section 182(1)(b) and (c) while ignoring the equally important constitutional duty to ensure national security under Section 198.
The Concourt stated that once Madonsela reported to the National Assembly its constitutional “obligation to take appropriate remedial action” can only mean compliance.
It concludes that when that report was received by the National Assembly, it effectively operationalised the House’s obligations in terms of sections 42(3) and 55(2) of the Constitution.
The Concourt paid scant attention to Section 198 under which Parliament has a superior constitutionally-derived and exclusive authority to determine for itself what are security features at the residence of the president.
Propagandists are free to simply view this approach as motivated by an unlawful desire to frustrate the public protector.
Throughout the world courts wroutinely rule against members of the executive and other branches of government but such rulings are not considered automatic impeachable offences mandating removal of public officials.
The moral of the story is that court judgments are limited to the cases being adjudicated upon and their implications must accordingly never be hijacked for political ends.