Cape Town - Parliament ad hoc committee on Nkandla was given an extension this week to complete its work. However, it has been rendered largely irrelevant by the outcome of a court case in an entirely separate matter – the appointment of Hlaudi Motsoeneng as SABC chief operating officer.
That’s because Judge Ashton Schippers, in considering the DA’s urgent application for Motsoeneng to be suspended and disciplinary charges brought against him, also had to consider the status of findings and remedial action of the public protector.
Since the enforceability, or otherwise, of the public protector’s remedial action was one of the key questions raised in the ad hoc committee, specifically the question of whether President Jacob Zuma must “pay back the money”, the outcome of the judgment has a clear bearing on its work.
To Public Protector Thuli Madonsela’s obvious discomfort, Judge Schippers found her contention that her findings are binding to be incorrect.
This is the first time the issue has been deliberated on by a court, with the result that unless it is overturned on appeal (Madonsela immediately indicated she would take it on review), the judgment stands as the definitive word on the matter – after months of back-and-forth, frequently bitter public argument involving Madonsela, Zuma, legal commentators and political parties.
On the surface, the judge appeared to agree with Zuma, who had contended in a letter to Madonsela that the public protector was “akin to an ombud” and her role “quite distinct from that of a judge”.
“Similarly, reports emanating from a public protector process are not judgments to be followed under pain of a contempt order, but rather, useful tools in assisting democracy in a co-operative manner,” Zuma wrote.
Judge Schippers wrote in his judgment on Friday that the Constitutional Court had said the office of the public protector was modelled on the institution of the ombudsman. “In contrast to their investigatory powers, ombudsmen ordinarily do not possess any powers of legal enforcement.
“Indeed, the power to make binding decisions is considered antithetical to the institution – the key technique of the ombudsman is one of intellectual authority (making logically consistent and defensible findings) and powers of persuasion,” Judge Schippers wrote.
This would appear to chime with Zuma’s contention that the public protector’s findings were “useful tools in assisting democracy in a co-operative manner”.
Madonsela, in a statement on Friday, said to argue that her powers were the same as those of an ombud, when the constitution used “unique wording” in giving her power to “take remedial action”, was akin to “someone saying there’s no difference between a Mercedes-Benz and a VW Beetle because as long as something is a car, it has the same power as any other car”.
But Judge Schippers went on to ask if her findings were not enforceable, how were they to be given effect? His answer was that although an organ of state (like the executive), could take the decision not to comply with the public protector’s remedial action, it had to offer “cogent reasons” for doing so.
As such a decision was an exercise of public power, it had to meet the test of rationality which was the “minimum threshold requirement” applying to this power.
That they were not binding did not mean “that these findings and remedial action are mere recommendations, which an organ of state may accept or reject”.
This is where the judge and Zuma part ways, the president having told Madonsela in his letter she had the power to “investigate, report and make recommendations, which may include remedial action”.
He would be failing in his constitutional responsibilities were he to simply “rubberstamp” her decision.
The judge wrote that the organ of state, in taking a decision on whether or not the findings were to be accepted and the remedial action implemented, must “properly consider” them and the decision, and the decision-making process, must be rational, “having regard to the underlying purpose of the public protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice”.
The question now is whether Zuma, in his response to Parliament on Nkandla, demonstrated he had properly considered Madonsela’s report and gave cogent reasons for not complying.
Since he specifically said he was neither accepting nor rejecting any of the reports he referred to and was not commenting on them, there was “a very strong indication that the president’s response to the protector’s report is irrational and therefore unlawful”, according to UCT Constitutional Law Professor Pierre de Vos.
Having opted not to invite Zuma to explain his decision, the committee left the door open to a court challenge. As Judge Schippers expressly found, a decision not to comply was “capable of judicial review”.
De Vos said the committee had always been “a red herring”. “It’s completely irrelevant, it has always been irrelevant. The ad hoc committee can, if they want, hold the president accountable, but that has nothing to do with the legal issue between the public protector and the president,” De Vos said.
Political Bureau