The circus in Rome, with its gladiatorial combat to the death and the thumbs up or down of the crowd came to mind when a whole rugby team (including substitutes) of counsel descended on the Constitutional Court to do battle over the failure of the president to implement the remedial action required of him by the Public Protector in her report of March 2014, aptly titled “Secure in Comfort” It is doubtful that the president will now remain secure at all.
Most observers are ad idem that the court will exercise its jurisdiction in the dispute between the EFF and DA as applicants and the President, Minister of Police and Speaker of the National Assembly as respondents in which the Public Protector joined and Corruption Watch appeared as a friend of the court. It is still an open question as to whether jurisdiction will be on the basis that the matter falls within the exclusive jurisdiction of the court or is one in which it should sit in the interests of justice. Either way, it seems unlikely that the justices will decline to hear the matter and send it off to the High Court. After all, the President has called for finality in the matter.
As regards the merits of the case, the “pay back the money” part of the dispute, the Constitutional Court could choose to follow the line taken by the Supreme Court of Appeal in the SABC matter concerning the chequered career of its current Chief Operations Officer. In that case the powers of the Public Protector were described in the following terms:
“ The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy for State misconduct, which includes the power to determine the remedy and direct its implementation…
 To sum up, the office of the Public Protector, like all Chapter Nine institutions, is a venerable one. Our constitutional compact demands that remedial action taken by the Public Protector should not be ignored. State institutions are obliged to heed the principles of co-operative governance as prescribed by s 41 of the Constitution. Any affected person or institution aggrieved by a finding, decision or action taken by the Public Protector might, in appropriate circumstances, challenge that by way of a review application. Absent a review application, however, such person is not entitled to simply ignore the findings, decision or remedial action taken by the Public Protector. Moreover, an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the Public Protector…Before us, all the parties were agreed that a useful metaphor for the Public Protector was that of a watchdog. As is evident from what is set out above, this watchdog should not be muzzled.”
A finding to similar effect by the Constitutional Court will bring much needed certainty and clarity to the functioning of the Office of the Public Protector. Too many civil servants and others have embraced the “error in law” committed by the president by following him in refusing, for no good reason, to follow the “recommendations” of the Public Protector. In law, the Public Protector does not make recommendations on a “take it or leave it” basis; she takes remedial action of a kind that, in the absence of successful judicial review proceedings, is binding on those to whom the remedial action applies. Our constitutional democracy will be suitably fortified and promoted by taking the same line of argument as that adopted in the passage quoted above.
In the “Secure in Comfort” report the findings against the president are succinctly set out:
“ Remedial action to be taken in terms of section 182(1)(c) of the constitution is the following: 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 at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool. 11.1.2. Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document. 11.1.3. Reprimand the Ministers involved…”
Reprimanding ministers who have already been sold down the Nile by the president is sure to be an unpleasant task. As to the question of paying back the money: the list of items set out by the Public Protector does not appear to be necessarily complete or exclusive, so it is possible that other non-security aspects of the work done at Nkandla will feature in the deliberations on the quantum to be paid back. Already, at the behest of the Special Investigations Unit, the president’s architect is being sued for R155 million, an action which is being stoutly defended by him.
The president himself, already conflicted and compromised, is sure to lose the support of more right thinking people as trust in his probity and integrity is further eroded by his flip-flop, confidence in his leadership is undermined by his volte face and faith in his ability to build strong institutions is shaken to the core. Whether he can survive politically remains to be seen.
Paul Hoffman SC is a director of Accountability Now.
10 February 2016