The facts of the Constitutional Court
1. On 19 March 2014, the Public Protector issued a report entitled “Secure in Comfort” (“the Report") In the Report, the Public Protector was required to consider inter alia the following five issues:
1.1. The first issue was whether the measures taken and the buildings and items that were constructed and installed by the Department of Public Works (“DPW”) at the President’s private residence go beyond what was required for the President’s security. The Public Protector concluded that some of these improvements did indeed exceed what was needed.
1.2. The second issue that is relevant is whether the expenditure incurred by the State in regard to the improvements was excessive, or amounted to opulence on a grand scale. The Public Protector concluded that this complaint was also established.
1.3. The third relevant issue was whether the President’s family and/or relatives improperly benefited from the measures taken at the President’s private residence. The Public Protector concluded that the President and his immediate family did indeed improperly benefit from the measures taken in so far as they resulted in the addition of substantial value to the President’s private property.
1.4. The fourth issue was whether the President should be liable for some of the costs incurred. The Public Protector similarly found in the affirmative in this regard.
1.5. The fifth issue was whether there were any ethical violations on the part of the President in respect of the project. The Public Protector found, inter alia, that the President had indeed failed to act in the protection of state resources, which constituted a violation of paragraph 2 of the Executive Members’ Ethics Code and amounted to conduct inconsistent with the President’s office as a member of Cabinet, as contemplated by section 96 of the Constitution.
The Report concerns the Public Protector’s investigation into “allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Jacob Zuma at Nkandla in the Kwazulu-Natal province”.
2. The Report resulted in findings and remedial action under section 182(1)(c) of the Constitution being made against the President of the Republic of South Africa (“the President”). The Public Protector directed that the President should take the following remedial action:
2.1. The President should take steps, with the assistance of National Treasury and the South African Police Services (“SAPS”), to determine the reasonable cost of the measures implemented by the DPW at the President’s private residence that did not relate to security;
2.2. The President should pay a reasonable percentage of the costs of the measures as determined with the assistance of National Treasury;
2.3. The President should reprimand the Ministers involved for the manner in which the Nkandla project was handled and in which state funds were abused; and
2.4. The President should report to the National Assembly on his comments and actions in respect of the Report within 14 days.
Section 96(2)(b) of the Constitution provides that members of Cabinet may not “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”.
3. It is now a matter of public record that the President did not ‘pay back the money’, as the Public Protector directed. The matter came before the Constitutional Court primarily because the Economic Freedom Fighters (“EFF”), a political party, was dissatisfied with this outcome. The EFF launched an application for direct access to the Constitutional Court on the basis that the matter fell within the Constitutional Court’s exclusive jurisdiction. In effect, what the EFF sought was an order to the effect that that the Public Protector’s powers were binding, and that, given that the Report had not been reviewed or set aside, the President’s compliance was not optional, but mandatory.
THE POSITION OF THE PRESIDENT UNDER THE CONSTITUTION
4. In his judgment, Judge Mogoeng also described the nature of the office of the President. The Chief Justice held that the President is given both great power and great responsibility. Under the Constitution, the Court described the position of the President as follows:
“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. 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. 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. And almost all the key role players in the of our constitutional vision and the aspirations of all our people are appointed and may ultimately be removed by him. 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 constitution project”.
The DA launched a similar application in the Western Cape High Court, then subsequently ‘piggy-backed’ onto the EFF’s application, launching a conditional application to the Constitutional Court to the effect that, in the event that the Court granted the EFF direct access on the basis of exclusive jurisdiction, it should do the same for the DA.
5. The Court proceeded to elaborate upon the responsibilities of the President as follows:
“[The President] 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 toremember at its mention on any global platform”.
6. The learned Chief Justice did not stop there:
“Section 83 [of the Constitution] does impose certain obligations on the President in particular. ... 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. 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 constitution 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”.
Para 20 of the Nkandla judgment
Para 21 of the Nkandla judgment
Para 26 of the Nkandla judgment
7. I shall set out the Court’s findings in relation to the President’s conduct in the light of the Report below.
THE COURT’S CONCLUSIONS
8. The EFF’s application succeeded. Mogoeng CJ, writing for a unanimous court, held as “The Public Protector is ... one of the most invaluable gifts to our nation in the fight against corruption, unlawful enrichment, prejudice and impropriety in State affairs and for the betterment of good governance. ... She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. In the execution of her investigative, reporting or remedial powers, she is not to be inhibited, undermined or sabotaged. When all other essential requirements for the proper exercise of her power are met, she is to take appropriate remedial action If compliance with remedial action taken were optional, then very few culprits, if any at all, would allow it to have any effect. And if it were, by design, never to have a binding effect, then it is incomprehensible just how the Public Protector could ever be effective in what she does and be able to contribute to the strengthening of our constitutional democracy”.
9. In regard to the President’s deliberate failure to comply with the remedial action contained in the Report, Mogoeng CJ held as follows:
“The President should ... have decided whether to comply with the Public Protector’s remedial action or not. If not, then much more than his mere contentment with the correctness of his own report was called for. A branch of government vested with the authority to resolve disputes by the application of the law should have been approached. And that is the Judiciary. Only after a court of law had set aside the findings and remedial action taken by the Public Protector would it have been open to the President to disregard the Public Protector’s report. His difficulty here is that ... he did not challenge the report through a judicial process. He appears to have been content with the apparent vindication of his position by the Minister’s favourable recommendations and considered himself to have been lawfully absolved of liability”.
Paras 52, 54 and 56 of the Nkandla judgment
10. This course of action was condemned by the Court in no uncertain terms:
“Emboldened by the Minister’s conclusion, and a subsequent resolution by the National Assembly to the same effect, the President neither paid for the non-security installations nor reprimanded the Ministers involved in the Nkandla project. This non-compliance persisted until these applications were launched ... . And this is where and how the Public Protector’s remedial action was second-guessed in a manner that is not sanctioned by the rule of law. Absent a court challenge to the Public Protector’s report, all the President was required to do was to comply. ... .The President thus failed to uphold, defend and respect the Constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the Public Protector in terms of her constitutional powers. The second respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound to, but did not, assist and protect the Public Protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action. He might have been following wrong legal advice and therefore acting in good faith. But that does not detract from the illegality of his conduct regard being had to its inconsistency with his constitutional obligations in terms of sections 182(1)(c) and 181(3) read with 83(b)”.
11. It was for these reasons that, in the final result, the Court ordered the ordered the President to ‘pay back the money’, within 45 days of the appropriate amount having been determined.
Para 81 of the Nkandla judgment
Paras 82 to 83 of the Nkandla judgment