READ: The full ConCourt judgement on Nkandla
Here is the full judgement delivered by the Constitutional Court of South Africa
In the matter of:
ECONOMIC FREEDOM FIGHTERS Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
PUBLIC PROTECTOR Third Respondent
And in the matter of:
DEMOCRATIC ALLIANCE Applicant
and
SPEAKER OF THE NATIONAL ASSEMBLY First Respondent
PRESIDENT JACOB GEDLEYIHLEKISA ZUMA Second Respondent
MINISTER OF POLICE Third Respondent
PUBLIC PROTECTOR Fourth Respondent
CORRUPTION WATCH (RF) NPC Amicus Curiae
Neutral citation: Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others [2016] ZACC 11
Coram: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgment: Mogoeng CJ (unanimous)
Heard on: 9 February 2016
Decided on: 31 March 2016
Summary: Legal Effect of Powers of Public Protector — Appropriate Remedial Action — Conduct of President — National Assembly Obligations — Separation of Powers
Specific Constitutional Obligations — Exclusive Jurisdiction — Compliance with Remedial Action — Oversight and Accountability
ORDER
Applications for the exercise of exclusive jurisdiction and direct access:
In the result the following order is made:
1. This Court has exclusive jurisdiction to hear the application by the Economic Freedom Fighters.
2. The Democratic Alliance’s application for direct access is granted.
3. The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding.
4. The failure by the President to comply with the remedial action taken against him, by the Public Protector in her report of 19 March 2014, is inconsistent with section 83(b) of the Constitution read with sections 181(3) and 182(1)(c) of the Constitution and is invalid.
5. The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only.
6. The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.
7. The National Treasury must report back to this Court on the outcome of its determination within 60 days of the date of this order.
8. The President must personally pay the amount determined by the National Treasury in terms of paragraphs 5 and 6 above within 45 days of this Court’s signification of its approval of the report.
9. The President must reprimand the Ministers involved pursuant to paragraph 11.1.3 of the Public Protector’s remedial action.
10. The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3) of the Constitution, is invalid and is set aside.
11. The President, the Minister of Police and the National Assembly must pay costs of the applications including the costs of two counsel.
JUDGMENT
MOGOENG CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring):
Introduction
[1] One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the Constitution as values of our constitutional democracy.[1] For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck. It is against this backdrop that the following remarks must be understood:
“Certain values in the Constitution have been designated as foundational to our democracy. This in turn means that as pillar-stones of this democracy, they must be observed scrupulously. If these values are not observed and their precepts not carried out conscientiously, we have a recipe for a constitutional crisis of great magnitude. In a State predicated on a desire to maintain the rule of law, it is imperative that one and all should be driven by a moral obligation to ensure the continued survival of our democracy.” [2]
And the role of these foundational values in helping to strengthen and sustain our constitutional democracy sits at the heart of this application.
[2] In terms of her constitutional powers,[3] the Public Protector investigated allegations of improper conduct or irregular expenditure relating to the security upgrades at the Nkandla private residence of the President of the Republic. She concluded that the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources. Exercising her constitutional powers to take appropriate remedial action she directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him and his family. Added to this was that he should reprimand the Ministers involved in that project, for specified improprieties.
[3] The Public Protector’s report was submitted not only to the President, but also to the National Assembly presumably to facilitate compliance with the remedial action in line with its constitutional obligations to hold the President accountable.[4] For well over one year, neither the President nor the National Assembly did what they were required to do in terms of the remedial action. Hence these applications by the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA),[5] against the National Assembly and the President.
[4] What these applications are really about is that—
(a) based on the supremacy of our Constitution, the rule of law and considerations of accountability, the President should be ordered to comply with the remedial action taken by the Public Protector by paying a reasonable percentage of the reasonable costs expended on non?security features at his private residence;
(b) the President must reprimand the Ministers under whose watch State resources were expended wastefully and unethically on the President’s private residence;
(c) this Court must declare that the President failed to fulfil his constitutional obligations, in terms of sections 83, 96, 181 and 182;
(d) the report of the Minister of Police and the resolution of the National Assembly that sought to absolve the President of liability, must be declared inconsistent with the Constitution and invalid and that the adoption of those outcomes amount to a failure by the National Assembly to fulfil its constitutional obligations, in terms of sections 55 and 181, to hold the President accountable to ensure the effectiveness, rather than subversion, of the Public Protector’s findings and remedial action;
(e) the Public Protector’s constitutional powers to take appropriate remedial action must be clarified or affirmed; and
(f) the State parties, except the Public Protector, are to pay costs to the Applicants.
Background
[5] Several South Africans, including a Member of Parliament, lodged complaints with the Public Protector concerning aspects of the security upgrades that were being effected at the President’s Nkandla private residence. This triggered a fairly extensive investigation by the Public Protector into the Nkandla project.
[6] The Public Protector concluded that several improvements were non-security features.[6] Since the State was in this instance under an obligation only to provide security for the President at his private residence, any installation that has nothing to do with the President’s security amounts to undue benefit or unlawful enrichment to him and his family and must therefore be paid for by him.
[7] In reasoning her way to the findings, the Public Protector said that the President acted in breach of his constitutional obligations in terms of section 96(1), (2)(b) and (c) of the Constitution which provides:
“Conduct of Cabinet members and Deputy Ministers
(1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not—
. . .
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.”
In the same breath she concluded that the President violated the provisions of the Executive Members’ Ethics Act[7] and the Executive Ethics Code.[8] These are the national legislation and the code of ethics contemplated in section 96(1).
[8] The Public Protector’s finding on the violation of section 96 was based on the self-evident reality that the features identified as unrelated to the security of the President, checked against the list of what the South African Police Service (SAPS) security experts had themselves determined to be security features,[9] were installed because the people involved knew they were dealing with the President. When some government functionaries find themselves in that position, the inclination to want to please higher authority by doing more than is reasonably required or legally permissible or to accede to a gentle nudge by overzealous and ambitious senior officials to do a “little wrong” here and there, may be irresistible. A person in the position of the President should be alive to this reality and must guard against its eventuation. Failure to do this may constitute an infringement of this provision.
[9] There is thus a direct connection between the position of President and the reasonably foreseeable ease with which the specified non-security features, asked for or not, were installed at the private residence. This naturally extends to the undue enrichment.[10] Also, the mere fact of the President allowing non?security features, about whose construction he was reportedly aware,[11] to be built at his private residence at government expense, exposed him to a “situation involving the risk of a conflict between [his] official responsibilities and private interests”.[12] The potential conflict lies here. On the one hand, the President has the duty to ensure that State resources are used only for the advancement of State interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise.
[10] Having arrived at the conclusion that the President and his family were unduly enriched as a result of the non-security features, the Public Protector took remedial action against him in terms of section 182(1)(c) of the Constitution. The remedial action taken reads:
“11.1 The President is to:
11.1.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW [Department of Public Works] at his private residence that do not relate to security, and which include [the] visitors’ centre, the amphitheatre, the cattle kraal and chicken run and the swimming pool.
11.1.2 Pay a reasonable percentage of the cost of the measures as determined with the assistance of the National Treasury, also considering the DPW apportionment document.
11.1.3 Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.
11.1.4 Report to the National Assembly on his comments and actions on this report within 14 days.”[13]
[11] Consistent with this directive, the President submitted his response to the National Assembly within 14 days of receiving the report.[14] It was followed by yet another response about five months later.
[12] For its part, the National Assembly set up two Ad Hoc Committees,[15] comprising its members, to examine the Public Protector’s report as well as other reports including the one compiled, also at its instance, by the Minister of Police. After endorsing the report by the Minister exonerating the President from liability and a report to the same effect by its last Ad Hoc Committee, the National Assembly resolved to absolve the President of all liability. Consequently, the President did not comply with the remedial action taken by the Public Protector.
[13] Dissatisfied with this outcome, the EFF launched this application, claiming that it falls within this Court’s exclusive jurisdiction. It, in effect, asked for an order affirming the legally binding effect of the Public Protector’s remedial action; directing the President to comply with the Public Protector’s remedial action; and declaring that both the President and the National Assembly acted in breach of their constitutional obligations. The DA launched a similar application in the Western Cape Division of the High Court, Cape Town and subsequently to this Court conditional upon the EFF’s application being heard by this Court.
[14] It is fitting to mention at this early stage that eight days before this matter was heard, the President circulated a draft order to this Court and the parties. After some parties had expressed views on aspects of that draft, a revised version was circulated on the day of the hearing. The substantial differences between the two drafts are that, unlike the first, the second introduces the undertaking by the President to reprimand certain Ministers in terms of the remedial action and also stipulates the period within which the President would personally pay a reasonable percentage of the reasonable costs of the non-security upgrades after a determination by National Treasury. Also, the Auditor-General has been left out as one of the institutions that were to assist in the determination of the amount payable by the President. Otherwise, the essence of both draft orders is that those aspects of the Public Protector’s remedial measures, still capable of enforcement, would be fully complied with. As for costs, the President proposed that they be reserved for future determination.
Exclusive jurisdiction
[15] The exclusive jurisdiction of this Court is governed by section 167(4)(e) of the Constitution which says:
“(4) Only the Constitutional Court may—
…
(e) decide that Parliament or the President has failed to fulfil a constitutional obligation.”
[16] Whether this Court has exclusive jurisdiction in a matter involving the President or Parliament is not a superficial function of pleadings merely alleging a failure to fulfil a constitutional obligation. The starting point is the pleadings. But much more is required.[16] First, it must be established that a constitutional obligation that rests on the President or Parliament is the one that allegedly has not been fulfilled. Second, that obligation must be closely examined to determine whether it is of the kind envisaged by section 167(4)(e).[17]
[17] Additional and allied considerations are that section 167(4)(e) must be given a narrow meaning.[18] This is so because whenever a constitutional provision is construed, that must be done with due regard to other constitutional provisions that are materially relevant to the one being interpreted. In this instance, section 172(2)(a) confers jurisdiction on the Supreme Court of Appeal, the High Court and courts of similar status to pronounce on the constitutional validity of laws or conduct of the President. This is the responsibility they share with this Court – a terrain that must undoubtedly be adequately insulated against the inadvertent and inappropriate monopoly of this Court. An interpretation of section 167(4)(e) that is cognisant of the imperative not to unduly deprive these other courts of their constitutional jurisdiction, would be loath to assume that this Court has exclusive jurisdiction even if pleadings state strongly or clearly that the President or Parliament has failed to fulfil constitutional obligations.
[18] An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test.[19] Even if it is an office-bearer- or institution-specific constitutional obligation, that would not necessarily be enough. Doctors for Life provides useful guidance in this connection. There, Ngcobo J said “obligations that are readily ascertainable and are unlikely to give rise to disputes”,[20] do not require a court to deal with “a sensitive aspect of the separation of powers”[21] and may thus be heard by the High Court.[22] This relates, as he said by way of example, to obligations expressly imposed on Parliament where the Constitution provides that a particular legislation would require a two-thirds majority to be passed. But where the Constitution imposes the primary obligation on Parliament and leaves it at large to determine what would be required of it to execute its mandate, then crucial political questions are likely to arise which would entail an intrusion into sensitive areas of separation of powers. When this is the case, then the demands for this Court to exercise its exclusive jurisdiction would have been met.[23]
[19] To determine whether a dispute falls within the exclusive jurisdiction of this Court, section 167(4)(e) must be given a contextual and purposive interpretation with due regard to the special role this apex Court was established to fulfil. As the highest court in constitutional matters and “the ultimate guardian of the Constitution and its values”,[24] it has “to adjudicate finally in respect of issues which would inevitably have important political consequences”.[25] Also to be factored into this process is the utmost importance of the highest court in the land being the one to deal with disputes that have crucial and sensitive political implications. This is necessary to preserve the comity between the judicial branch and the executive and legislative branches of government.[26]
[20] That this Court enjoys the exclusive jurisdiction to decide a failure by the President to fulfil his constitutional obligations ought not to be surprising, considering the magnitude and vital importance of his responsibilities. The President is the Head of State and Head of the national Executive. His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed.[27] The promotion of national unity and reconciliation falls squarely on his shoulders. As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people. Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight.[28] To him is the executive authority of the entire Republic primarily entrusted. He initiates and gives the final stamp of approval to all national legislation.[29] And almost all the key role players in the realisation of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him.[30] Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project.
[21] He is required to promise solemnly and sincerely to always connect with the true dictates of his conscience in the execution of his duties. This he is required to do with all his strength, all his talents and to the best of his knowledge and abilities. And, but for the Deputy President, only his affirmation or oath of office requires a gathering of people, presumably that they may hear and bear witness to his irrevocable commitment to serve them well and with integrity. He is after all, the image of South Africa and the first to remember at its mention on any global platform.
[22] Similarly, the National Assembly, and by extension Parliament, is the embodiment of the centuries-old dreams and legitimate aspirations of all our people. It is the voice of all South Africans, especially the poor, the voiceless and the least?remembered. It is the watchdog of State resources, the enforcer of fiscal discipline and cost-effectiveness for the common good of all our people.[31] It also bears the responsibility to play an oversight role over the Executive and State organs and ensure that constitutional and statutory obligations are properly executed.[32] For this reason, it fulfils a pre-eminently unique role of holding the Executive accountable for the fulfilment of the promises made[33] to the populace through the State of the Nation Address, budget speeches, policies, legislation and the Constitution, duly undergirded by the affirmation or oath of office constitutionally administered to the Executive before assumption of office. Parliament also passes legislation with due regard to the needs and concerns of the broader South African public. The willingness and obligation to do so is reinforced by each member’s equally irreversible public declaration of allegiance to the Republic, obedience, respect and vindication of the Constitution and all law of the Republic, to the best of her abilities. In sum, Parliament is the mouthpiece, the eyes and the service-delivery-ensuring machinery of the people. No doubt, it is an irreplaceable feature of good governance in South Africa.
[23] For the EFF to meet the requirements for this Court to exercise its exclusive jurisdiction over the President and the National Assembly, it will have to first rely on what it considers to be a breach of a constitutional obligation that rests squarely on the President as an individual and on the National Assembly as an institution. That obligation must have a demonstrable and inextricable link to the need to ensure compliance with the remedial action taken by the Public Protector. Put differently, it must be apparent from a reading of the constitutional provision the EFF relies on, that it specifically imposes an obligation on the President or the National Assembly, but in a way that keeps focus sharply on or is intimately connected to the need for compliance with the remedial action. If both or one of them bears the obligation merely as one of the many organs of State, then other courts like the High Court and later the Supreme Court of Appeal would in terms of section 172(2)(a) also have jurisdiction in the matter. In the latter case direct access[34] to this Court would have to be applied for and obviously granted only if there are exceptional circumstances and it is in the interests of justice to do so.
[24] Where, as in this case, both the President and the National Assembly are said to have breached their respective constitutional obligations, which could then clothe this Court with jurisdiction, and exclusive jurisdiction is only proven in respect of the one but not the other, there might still be room to entertain the application against both provided it is in the interests of justice to do so. This would be the case, for example, where: (i) the issue(s) involved are of high political importance with potentially far-reaching implications for the governance and stability of our country; (ii) the issue(s) at the heart of the alleged breach of constitutional obligations by both the President and the National Assembly are inseparable; and (iii) the gravity and nature of the issue(s) at stake are such that they demand an expeditious disposition of the matter in the interests of the nation. This list is not exhaustive.
Exclusive jurisdiction in the application against the President
[25] Beginning with the President, the EFF argued that he breached his obligations in terms of sections 83, 96,[35] 181 and 182 of the Constitution. And it is on the strength of these alleged breaches that this Court is asked to exercise exclusive jurisdiction.
[26] Section 83 does impose certain obligations on the President in particular. It provides:
“The President—
(a) is the Head of State and head of the national executive;
(b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and
(c) promotes the unity of the nation and that which will advance the Republic.”[36]
An obligation is expressly imposed on the President to uphold, defend and respect the Constitution as the law that is above all other laws in the Republic. As the Head of State and the Head of the national Executive, the President is uniquely positioned, empowered and resourced to do much more than what other public office-bearers can do.[37] It is, no doubt, for this reason that section 83(b) of the Constitution singles him out to uphold, defend and respect the Constitution. Also, to unite the nation, obviously with particular regard to the painful divisions of the past. This requires the President to do all he can to ensure that our constitutional democracy thrives. He must provide support to all institutions or measures designed to strengthen our constitutional democracy. More directly, he is to ensure that the Constitution is known, treated and related to, as the supreme law of the Republic. It thus ill-behoves him to act in any manner inconsistent with what the Constitution requires him to do under all circumstances. The President is expected to endure graciously and admirably and fulfil all obligations imposed on him, however unpleasant. This imposition of an obligation specifically on the President still raises the question: which obligation specifically imposed by the Constitution on the President has he violated? Put differently, how did he fail to uphold, defend and respect the supreme law of the Republic?
[27] Sections 181(3) and 182(1)(c) in a way impose obligations on the President. But, as one of the many. None of these provisions singles out the President for the imposition of an obligation. This notwithstanding the jurisprudential requirement that an obligation expressly imposed on the President, not Cabinet as a whole or organs of State in general, is required to establish exclusive jurisdiction.[38]
[28] For the purpose of deciding whether this Court has exclusive jurisdiction, it must still be determined whether on its own, section 83(b) imposes on the President an obligation of the kind required by section 167(4)(e). He is said to have failed to “uphold, defend and respect the Constitution as the supreme law of the Republic”. This he allegedly did by not complying with the remedial action taken by the Public Protector in terms of section 182(1)(c) thus violating his section 181(3) obligation to assist and protect the Public Protector in order to guarantee her dignity and effectiveness.
[29] If the failure by the President to comply with or enforce the remedial action taken by the Public Protector against a member of the Executive and fulfil his shared obligation to assist and protect the Public Protector so as to ensure her independence, dignity and effectiveness, amounts to a failure envisaged by section 167(4)(e), then the list of matters that would fall under this Court’s exclusive jurisdiction would be endless. What this could then mean is that whenever the President is said to have failed to fulfil a shared obligation in any provision of the Constitution,[39] or the Bill of Rights, this Court would readily exercise its exclusive jurisdiction. This would be so because on this logic, all a litigant would have to do to trigger this