The government’s plan to have Public Protector Thuli Madonsela’s Nkandla report referred to court for a judicial review has been described by a constitutional law expert as “legally nonsense”.
On Thursday, the security cluster of ministers said it would ask the high court for a judicial review of the report because it was “irrational and contradictory”, acting government spokeswoman Phumla Williams said.
It was the ministers’ view that Madonsela’s report and the investigation “trespasses on the separation of powers doctrine and offends against section 198 (d) of the constitution which vests national security in Parliament and national executive”.
“It is also the ministers’ view that some of the findings and remedial action proposed by the public protector in her report are irrational, contradictory and are informed by material errors of law,” said Williams.
Madonsela described the move as premature.
“The architecture of our constitutional democracy as we understand it requires that the matter be debated in Parliament first,” she said.
“Should there be no common understanding, the matter can then be taken to court.”
She could not imagine any court finding in the ministers’ favour.
The DA said it was consulting lawyers with a view to joining as an “intervening party”.
Constitutional expert Pierre de Vos said the latest move sent a message to chapter nine institutions like the public protector that the executive was “above scrutiny”.
De Vos said politically it was a “good move” in a sense, because it postponed any “real discussion” dealing with the report.
“Legally, it’s nonsense. I can’t see that any court in South Africa is going to find the report breached the separation of powers or that it was irrational and set it aside. I don’t understand.
“I find it very difficult to understand how the spending of money on lawyers can be justified.”
Any lawyer with a good understanding of the constitution would know that the ministers’ chances were close to “zero”.
“Basically what this says is if the executive deal with matters of national security, they are claiming they are above the law and also above any scrutiny by chapter nine institutions. That is worrying because it’s a lack of appreciation and understanding of the role of chapter nines that are there to assist the executive,” said De Vos.
The executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo, said: “The government’s first line of attack is saying that the public protector does not have the jurisdiction to investigate issues of national security.
“I find this line of attack tenuous; it is very unlikely that they will succeed in court on this basis.”
Naidoo pointed out that when Zuma responded in Parliament, he said Madonsela had the appropriate constitutional mandate to conduct the investigations; now they had changed their minds by saying this was not her jurisdiction.
He added that many legal experts had looked at the report, but he had not heard one person point out any errors.
DA federal chairman James Selfe said: “This decision by the security cluster is a transparent case of the executive trying to interfere with the independence and impartiality of a chapter nine institution.”
The EFF has also called the move a
“… Cognisant of the possibility that the outcome of the Parliamentary ad hoc committee reviewing the Nkandla report may lead to a motion to impeach the President, they have resorted to unnecessary and costly delaying tactics,” spokesman Mbuyiseni Ndlozi said in a statement.
The Economic Freedom Fighters said it was the ANC's intention to manufacture a sub judice defence against anticipated parliamentary debate on the Nkandla report.
“This is a proactive attempt by the ANC to block any efforts to have contents of the Nkandla report tabled in the National Assembly during the debate for re-election of President Zuma,” Ndlozi said.
ANC spokesman Jackson Mthembu said the party respected any decision taken by the government.
In her report, Madonsela found that President Jacob Zuma unduly benefited from “exorbitant” upgrades to his Nkandla home and must pay back a reasonable portion of the costs to the state.
Zuma has said he would await the outcome of another probe by the Special Investigating Unit before responding to the matter.
Political Bureau and Sapa