Economic Freedom Fighters v The Speaker of the National Assembly and Others and Democratic Alliance v the Speaker of the National Assembly and Others CCT 143/15 and CCT 171/15 – hearing date:  9 February 2016

“On Tuesday 9 February 2016 at 10h00, the Constitutional Court will hear two applications for direct access in matters concerning whether the failure to comply with remedial action set out in  a report of the Public Protector constituted a breach of constitutional duties by the National Assembly and the President (in each case, the first and second respondent respectively).   Additional respondents include the Public Protector and the Minister of Police”. 

The above and following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

The applicants are the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA), each an opposition party in the National Assembly (NA).   Corruption Watch, a civil society organisation, has been admitted as amicus curiae.

The Executive took a decision to upgrade security at the President’s private residence at Nkandla.   In the course of implementing that decision, a cattle kraal, chicken run, swimming pool, visitors centre and an amphitheatre, amongst other things, were built at State expense.   Following complaints from the public and a Member of Parliament about the alleged misuse of public funds, the third respondent, the Public Protector, investigated the project.   In her report of March 2014, she concluded that the five features mentioned above were non-security features; as such, State funds should not have been used for their construction.   Her proposed remedial action was that the President must, with the assistance of the Minister of Police and the Minister of Finance, determine the reasonable costs of those features and repay to the State a reasonable portion thereof.

Both the President and the National Assembly took steps which in their view amount to compliance with the Public Protector’s remedial action.   In addition, the Minister of Police produced a report in May 2015 exonerating the President from any liability.   The EFF and the DA contend that the measures taken by the respondents fell short of compliance with the Public Protector’s remedial action, and that the National Assembly failed to satisfy its constitutional obligations to oversee the Executive and assist the Public Protector in performing her duties.

Before the Constitutional Court, the applicants submit that the respondents’ failure to comply with the Public Protector’s proposed remedial action is a breach of the Constitution and the President’s obligations under the Constitution, and the National Assembly’s obligation to ensure the accountability of executive organs of the State and to maintain oversight of the exercise of national executive authority in terms of section 55(2) of the Constitution.   The applicants further submit that the report of the Minister of Police, which purports to exonerate the President from any liability, must be set aside because it was irregular.   Both the applicants and the Public Protector seek clarity on the nature and extent of the Public Protector’s power to take remedial action. 

The President submits that the Public Protector’s decisions are context-specific and not legally binding, and were in any case implemented.   In his view, the appropriate remedial action in this case was to refer the matter to the Minister of Police.   He further submits that as President, he has the right to conduct a fair and rational investigation into the extent of his liability, and the government has the right to investigate maladministration.

The Speaker of the NA submits that the Public Protector’s remedial powers are not binding upon the NA.   It challenges the applicants’ contention that the NA failed to provide mechanisms for the oversight and accountability of the Executive, and points to numerous mechanisms and legislative instruments that the NA uses to perform its oversight function.   Finally, it submits that the applicants are improperly attempting to invoke judicial processes in advancement of a political issue.

The Minister of Police submits that his report was lawful and constitutionally valid and that he properly discharged his obligations as a member of Cabinet.   He further submits that his report was intended to complement rather than subvert the report of the Public Protector.

The Public Protector submits that her remedial actions are binding and enforceable unless set aside by a court of law and cannot be ignored or diluted by other organs of State.

Finally, Corruption Watch submits that the Public Protector’s remedial actions have not been implemented to the extent the President claims they have, and the failure of such implementation has had a negative impact upon the application of ethical standards and procurement rules.   It further submits that the President’s conduct and attitude toward this matter has impaired the struggle against procurement corruption in South Africa.