Madonsela only trying to help Zuma

(In the Pic - Seargent at Arms announces the arrival of the Speaker) President Jacob Zuma responds to Parliamentary Questions in the National Assembly, Cape Town, 21/08/2014, Elmond Jiyane, GCIS

(In the Pic - Seargent at Arms announces the arrival of the Speaker) President Jacob Zuma responds to Parliamentary Questions in the National Assembly, Cape Town, 21/08/2014, Elmond Jiyane, GCIS

Published Aug 27, 2014

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The public protector is tryng to help the president deal with the Nkandla scandal in a legally valid manner, says Pierre de Vos.

Politicians often behave like alcoholics who refuse to acknowledge that they have a drinking problem. Instead of accepting help to recover from their illness, they attack those who try to assist them.

The response of President Jacob Zuma (and that of the ANC) to the attempts by Public Protector Thuli Madonsela to assist the president to deal properly, and in a constitutionally and legally valid manner, with the Nkandla scandal is a case in point.

In her most recent letter addressed to Zuma about his response (or substantial lack thereof) to her report on the Nkandla scandal, Madonsela points out that she is “currently preparing a special report to the National Assembly regarding progress achieved by organs of state with the implementation of remedial action”.

In order to protect the president and the government he leads she wishes to avoid a situation in which she has to advise the complainants and the National Assembly that the president has failed to engage with the substance of the report or implementation of the remedial action proposed in it.

Having to provide such advice would cause further embarrassment to the Presidency and further expose it to legal action on the basis that his response to the report and his failure to implement the public protector’s recommendations are irrational and hence unlawful.

In terms of section 182(1)(c) of the constitution, the public protector’s office has the power “to take appropriate remedial action” whenever it finds that there was a breach of any law or whenever it was found that an organ of state acted unethically or in breach of its legal duties or is guilty of maladministration.

Section 181(3) places a legal duty on organs of state (including the president) to “assist and protect” the institution of the public protector to ensure its “independence, impartiality, dignity and effectiveness”.

Relying on this power bestowed on her by the constitution, the public protector required the president to “take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures” implemented at his private residence that do not relate to security.

She further required Zuma to “pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the Department of Public Works apportionment document” and to “reprimand the ministers involved for the appalling manner in which the Nkandla project was handled and state funds were abused”.

In accordance with section 3(5) of the Executive Members Ethics Act the president was required (over and above the requirements set out), to “report to the National Assembly on his comments and actions on this report within 14 days”.

It would not be appropriate for the public protector to be seen to interfere with the process according to which the National Treasury determines the portion of the money Zuma should pay back.

But it is appropriate for the public protector to assist Zuma to prevent him from acting unlawfully by purporting to usurp the power of the courts and thus infringing on the separation of powers doctrine.

As the letter by the public protector makes clear, neither the president, nor the minister of police are legally authorised to reconsider the findings and remedial action contained in the public protector’s report. Only a court can review and set aside the findings and remedial action instituted by the public protector.

Zuma’s decision to task the minister of police “to report to cabinet on a determination to whether the president is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports” is therefore not authorised in law.

If challenged a court would almost certainly set aside this decision on the basis that it is irrational and hence unlawful.

It is also clearly in breach of the separation of powers doctrine as Zuma is purporting to bestow a judicial power on the minister of police.

As Zuma and other members of the executive have often in the past emphasised how important they regard the separation of powers doctrine, this purported action by the president is surprising.

As the Constitutional Court found in DA v President of South Africa and Others when exercising his powers or fulfilling legal or other constitutional duties, the president cannot ignore factors relevant to the decision (legal obligations and factual findings about wrongdoing being such relevant factors).

There is therefore a three-stage inquiry to be made when a court is faced with an executive decision where certain factors were ignored.

The first is whether the factors ignored are relevant; the second requires us to consider whether the failure to consider whether the material concerned (the means) is rationally related to the purpose for which the power was conferred; and the third, which arises only if the answer to the second stage is negative, is whether ignoring relevant facts is of a kind that colours the entire process with irrationality and thus renders the final decision irrational.

Where Zuma ignores the fact that his minister of police does not have the legal authority to review and set aside the decision by the public protector to require the president to pay back a reasonable amount of the money spent on non-security upgrades, he is ignoring factors relevant to the exercise of his powers and acts irrationally. By ignoring the fact neither he nor the minister of police (or the National Assembly for that matter) can review and set aside the findings or remedial actions imposed by the public protector, Zuma is therefore proposing to act in an irrational and hence unlawful manner.

The letter of the public protector alerts the president to this fact, presumably with the hope that the irrational and unlawful action will be rectified before it becomes necessary to approach a court to set aside the president’s decision. It is a pity that the public protector is being criticised for trying to assist the president to act lawfully.

Confusion has been created about the role of the National Assembly in this matter. In terms of section 3(5) of the Executive Members Ethics Act, the president has a further duty (over and above his duty to implement the remedial actions of the public protector in a rational manner) to submit a copy of the report of the public protector on breaches of the ethics code and any comments thereon, together with a report on any action taken in this regard to the National Assembly.

This became necessary because the public protector found that the failure of the president “to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of cabinet, as contemplated by section 96 of the constitution”.

This provision of the Executive Members Ethics Act recognises the role of the National Assembly in holding the executive to account. It allows the National Assembly to play its appropriate role in ensuring the findings and remedial actions of the public protector are properly implemented. But the National Assembly cannot usurp the powers of a court or of the public protector. Its role is circumscribed.

Two conclusions flow from this.

First, the National Assembly is not authorised to review and set aside the findings and remedial actions of the public protector. If the National Assembly purports to do so, it would act in breach of the separation of powers doctrine.

Its task is limited to holding the executive accountable by checking whether the executive has implemented the recommendations and remedial actions set out.

Second, it would be improper for the National Assembly to engage with an irrational and hence unlawful response by the president.

Recall that where the president acts irrationally by unlawfully authorising the minister of police to review the findings and remedial actions of the public protector, it taints the whole process and renders it irrational and unlawful. It is akin to a soccer game in which a player is ruled offside: everything that follows from the offside is null and void. Any goal scored after the offside ruling was made will not count.

It is therefore of no use for the National Assembly to engage with the irrational and unlawful recommendations of the president. The National Assembly is not a court and cannot render the actions of the president lawful by a say-so. If the National Assembly engages with the irrational and unlawful recommendation of the president it would, at best, be wasting its time.

At worst, it may endorse illegality.

It is for this reason that it was appropriate for the public protector to write to the president in an attempt to protect the Presidency, the ministry of police and National Assembly and to ensure that these institutions refrain from acting unlawfully or from endorsing illegality.

It is rather unhelpful to shoot the messenger because the message she brings – no matter how true and timely – is unpleasant or embarrassing.

Just like it is unhelpful for the alcoholic to attack their friends and family members for pointing out that they need help to deal with their illness, so it is unhelpful for the president and the ANC to attack the public protector for trying to assist the president (and National Assembly) to deal lawfully with the Nkandla scandal.

* Pierre de Vos teaches constitutional law at UCT and writes a blog, constitutionallyspeaking.co.za.

** The views expressed here are not necessarily those of Independent Newspapers.

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