As the DA and EFF prepare to drag president Jacob Zuma to the Constitutional Court to test the powers of the Public Protector, legal experts have detailed how the matter could end.
The ongoing Nkandla saga is finally getting its day in the Constitutional Court (Concourt), where 11 South African judges will decide the final outcome.
Contrary to popular understanding, the matter before the Constitutional Court is not about whether Zuma should be made to pay for upgrades to his homestead – but rather about whether the Public Protector’s rulings are legally binding or not.
Currently there are two higher court rulings on the powers of the Public Protector:
Firstly, the High Court has ruled specifically on the Nkandla matter that the Public Protector’s reports are recommendations – as outlined in the Public protector Act – which can be deviated from, but only if there is rational reason behind the non-compliance.
On the other hand, the Supreme Court of Appeal ruled on a matter involving the SABC and the invalid appointment of COO Hlaudi Motsoeneng that the Public Protector’s findings are automatically binding, and could only be set aside by a court.
The matter is now before the Constitutional Court, which could put an end to the debate once and for all.
Which way can it go?
According to Khomotso Moshikaro – a researcher at South African Institute for Advanced Constitutional, Public, Human Rights and International Law – there are three broad outcomes to the Concourt battle.
1. They’re just suggestions
The Concourt could find for the president and conclude that the Public Protector’s findings are merely suggestions that can be ignored without explanantion.
This would rely on a literal reading of the Public Protector Act, which refers to the Public Protector’s power to make ‘recommendations’ about how to deal with the matters she has investigated.
The argument for this outcome is that “had parliament intended these powers to be more than recommendations, it would have said so,” Moshikaro said.
“The difficulty with this interpretation is that, as the SCA said, this may make the Public Protector a ‘toothless’ watchdog.”
2. Recommendations, reasonably upheld
The Concourt could agree with the High Court’s findings that the Public Protector’s recommendations are binding insofar as there is no rational reason they shouldn’t be.
“The effect would be to impose an obligation on that agency to explain and justify its rejection of the Public Protectors findings. If the reasons for non-compliance are irrational, or made in bad faith, such non-compliance may be reviewed by a court,” Moshikaro said.
This outcome would give government agencies some leeway, while respecting the separation of powers. However, it may still render the Public Protector toothless.
3. Automatically binding
The Concourt could agree with the Supreme Court and rule that the Public Protector’s reports are legally binding and cannot be escaped without a court order.
This would give the office of the Public Protector the power to hold government to ultimate account, but largerly ignores the wording of the Public Protector Act and deprives government of any real discretion in implemting the reports.
“This (outcome) may not be desirable, considering that institutions outlive particular leaders,” Moshikaro said.
“Although the incumbent, Thuli Madonsela, is widely admired for her independence and effectiveness, what happens if she is replaced with a lackey of the ruling party? The office could then be used to target opposition parties, political enemies, and organs of state that the ruling party does not control, and force upon them unreasonable ‘recommendations’ that they have little choice but to implement.”
Advocate Thuli Madonsela’s role as Public Protector is drawing to close, with her tenure ending in October 2016.