Nkandla – The President Breaks His Oath Of Office
Economic Freedom Fighters (EFF) v Speaker of the National Assembly and Others and Democratic Alliance v Speaker of the National Assembly and Others (2016)
Is the President obligated to comply with the findings of the Public Protector, an office established by Chapter Nine of the Constitution? Can the Court remove a sitting President?
Background
The office of the Public Protector was created to “strengthen constitutional democracy in the Republic”, and is thus “pivotal to the facilitation of good governance”. Due to the sensitive nature of the matters that the Public Protector investigates, this office frequently finds itself at odds with those in power. This was especially true when in 2011, the Mail & Guardian broke the story about the cost of the substantial upgrades at then President Zuma’s Nkandla homestead in KwaZulu-Natal. In November 2012, Zuma claimed in Parliament that the R60 million upgrades to his homestead had been paid for by his family.
In January 2013, the Democratic Alliance (DA), the main opposition party in Parliament, asked the Public Protector, Thuli Madonsela, to launch an investigation into the spending on upgrades at Nkandla. Madonsela began to investigate the allegation that President Zuma had misused public funds for the upgrades to Nkandla. The President and the executive stated that these upgrades, which began in 2009 and which totalled R246 million, were necessary security upgrades and were thus paid for using state funds.
In March 2014, Madonsela released a damning report which found that many of the upgrades – such as a cattle kraal, chicken run, swimming pool, visitors’ centre, and amphitheatre – were not at all related to security as the President had stated.
It is my considered view that the President, as the head of South Africa Incorporated, was wearing two hats, that of the ultimate guardian of the resources of the people of South Africa and that of being a beneficiary of public privileges of some of the guardians of public power and state resources, but failed to discharge his responsibilities in terms of the latter.
Thuli Madonsela
then Public Protector, 2014
Madonsela presented her findings to Parliament. She held that the President should, in his personal capacity, pay back a reasonable portion of the money spent on these non-security related upgrades.
The conduct of the President was primarily assessed against the pursuit of ethical standards imposed on members of the executive by section 96 of the Constitution and the Executive Ethics Code issued under the Executive Members’ Ethics Act.
Thuli Madonsela
then Public Protector, 2014
Public Protector Thuli Madonsela gives a press briefing at the Public Protector’s office on 28 August 2014 in Pretoria.
ENCA
Police Minister, Nkosinathi Nhleko, defended the President: “Any contention that the President was required to implement security measures at his private residence at his own expense for his own safety and security is misguided and incorrect.”
The President and the Speaker also challenged the Public Protector’s ability to make legally binding decisions. The President refused to comply with the Public Protector’s remedial action.
Path to the Constitutional Court
The Democratic Alliance and Economic Freedom Fighters (EFF) along with the Public Protector, then brought the matter directly to the Constitutional Court. The EFF argued that the President breached his obligations in terms of section 83 which includes upholding, defending, and respecting the Constitution as the supreme law of the Republic. The National Assembly also breached its constitutional obligation in terms of section 55(2)(a) of the Constitution to act on the Public Protector’s report and hold the President accountable. And it is on the strength of these alleged breaches that the Court was asked to exercise its exclusive jurisdiction to determine matters where the President and the National Assembly have failed to uphold their constitutional obligations.
Some of the Arguments
Democratic Alliance / Economic Freedom Fighters
The DA and EFF argued that both the President and the National Assembly had failed to uphold their constitutional duties by not complying with the Public Protector’s remedial action. They argued that by not complying with the remedial action taken by the Public Protector in terms of section 182 of the Constitution the President violated his obligation in terms of section 181(3) to assist and protect the Public Protector in order to guarantee her dignity and effectiveness.
The DA and EFF argued that following the Public Protector’s report to the National Assembly on the Nkandla matter, it breached its constitutional obligation to take appropriate remedial action.
President of the Republic of South Africa / Speaker of the National Assembly
The President and the National Assembly argued that they did not breach their constitutional duties, and that since the Public Protector does not enjoy the same status as a Judicial Officer, the remedial action she takes cannot have a binding effect.
The courtroom was packed for two days as the drama around Nkandla unfolded with the nation watching on.
What did the Constitutional Court decide?
In a dramatic judgment, the Constitutional Court found that the President had failed to uphold, defend, and respect the Constitution as the supreme law of the land in contravention of section 83(b) of the Constitution. It found that the President had failed to assist and protect the Public Protector so as to ensure her independence, impartiality, dignity, and effectiveness by failing to comply with her remedial action. The Court also found that the National Assembly had failed in its duty to scrutinise and oversee executive action and to hold the President accountable for his actions.
The Constitutional Court held that the Public Protector has the power to make remedial action that is legally binding. The Court found that it was imperative to the proper functioning of the office that the Public Protector be empowered to provide effective remedies. The Court found that the remedial action taken by the Public Protector against President Zuma was binding. It confirmed the Public Protector’s findings that the President acted in breach of his constitutional obligations when he failed to take any steps to stop the state-sponsored, non-security related upgrades to his private home.
The Court found that the installation of non-security related features amounted to “undue enrichment” by the President. The Court further noted that because the President allowed non-security related features to be built at his private residence at government expense, this exposed him to a “situation involving the risk of a conflict between his official responsibilities and private interests.” The potential conflict was heightened by the fact – established by the Public Protector in her report – that the President was aware of the construction of non-security related features at his home for which he would not have to pay, but nevertheless did not stop this unlawful expenditure as he was constitutionally obliged to do.
Responding to the issue of whether the Court can remove a sitting president, the judges expressed respect for the separation of powers between the judiciary and the elected legislature. It stated that it would not tell the National Assembly how to hold the President accountable, and declined to prescribe to Parliament what measures to employ to hold the President accountable.
The Court did, however, order the National Treasury to determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that did not relate to security. The President was ordered to personally pay the amount determined by the National Treasury within 45 days of the Court’s approval of the National Treasury report.
Impact and Significance
In April 2016 President Zuma apologised to the nation, saying that the Constitutional Court judgment was helpful for future clarification.
This decision has evoked much understandable and inevitable political discussion and activity in our country, which has included calls for the immediate removal of the President of the Republic … The Court made an outstanding contribution to the clarification of the issue – what do we mean when we say that ours is a Constitutional Democracy? It has therefore made a critical contribution in terms of the evolution of our democracy.
Former President Thabo Mbeki
11 April 2016
The Court’s judgment added to the mounting pressure on President Zuma to resign following the Nkandla scandal. The judgment was used by the opposition parties to initiate constitutional processes in Parliament to remove the President. However, the President survived the numerous votes of no confidence in Parliament. The pressure against the President continued to build until February 2018, when he took the decision to step down. Many experts expressed the importance of the Court’s unprecedented judgment.
This is a critical case that is going to be a precedent for a long time to come, a judgment that will be studied by scholars for many, many years … It’s really probably one of the most important judgments by the Constitutional Court in our democratic era. There is no appeal from here.
Lawson Naidoo
Executive Secretary of the Council for the Advancement of the South African Constitution, 1 April 2016
Many words have been tossed about in the wake of Thursday’s devastating Constitutional Court judgment on the Public Protector’s report on Nkandla. Recall, impeach, remove, resign – all considered possibilities now that the highest court in the land found that President Jacob Zuma’s conduct was illegal and in violation of the Constitution
Ranjeni Munusamy
Journalist, 1 April 2016
Nkandla was only the tip of an even bigger iceberg of state corruption. Following the Public Protector’s vindication by the Constitutional Court, she proceeded with instituting a fuller investigation into state corruption. Her final report, before the end of her tenure, was a recommendation that a commission of inquiry should be established to investigate what is now referred to as state capture. Deputy Chief Justice Raymond Zondo was eventually appointed by President Cyril Ramaphosa to head the Judicial Commission of Inquiry into Allegations of State Capture, also known as the Zondo Commission.
