Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (CCT 143/15; CCT 171/15)  ZACC 11 (31 March 2016) per Mogoeng CJ [Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring]
The Constitutional Court today unanimously granted direct access to both applicants. The issues are defined in: Day of reckoning: Public Protector – nature and extent of powers. The relief sought by the applicants was duly granted.
“In the result the following order is made:
- This Court has exclusive jurisdiction to hear the application by the Economic Freedom Fighters.
- The Democratic Alliance’s application for direct access is granted.
- 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.
- 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.
- 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.
- The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.
- The National Treasury must report back to this Court on the outcome of its determination within 60 days of the date of this order.
- 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.
- The President must reprimand the Ministers involved pursuant to paragraph 11.1.3 of the Public Protector’s remedial action.
- 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.
- The President, the Minister of Police and the National Assembly must pay costs of the applications including the costs of two counsel”.
The 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.
Today the Constitutional Court handed down judgment in a matter concerning the power of the Public Protector to “take appropriate remedial action” and whether her finding that President Zuma is required to pay back a reasonable portion of the money spent installing non-security upgrades at his private residence (Nkandla) in his personal capacity is binding. The Executive decided to upgrade security at Nkandla. In the course of implementing that decision, a cattle kraal, chicken run, swimming pool, visitors’ centre and amphitheatre, amongst other things, were built at State expense.
Following several complaints about the alleged misuse of public funds, the Public Protector investigated the project. In her report of March 2014, she concluded that the five features mentioned above were non-security features and State funds should not have been used for their construction.
Consequently, she took remedial action, ordering that the President, with the assistance of the South African Police Service and National Treasury, determine the reasonable costs of those features and repay a reasonable portion thereof to the State. As a result of the non-security upgrades and alleged non-compliance with the Public Protector’s remedial action, the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA) brought legal proceedings against the Speaker of the National Assembly (Speaker), the President, and the Minister of Police (Minister) in this Court seeking a declaration that the President and the Speaker acted in breach of their constitutional duties.
The Public Protector was joined as a respondent due to her interest in the hearings. Corruption Watch appeared as amicus curiae (friend of the court). The Speaker contended that the Public Protector’s power to take remedial action merely amounted to recommendations and thus the remedial action was not binding. Prior to the hearing, the President argued that the steps he took were in compliance with the Public Protector’s remedial action. The Minister contended that his investigation and report were not unlawful. The Public Protector submitted arguments that her power to take appropriate remedial action is binding and enforceable until set aside by a court of law. At the hearing, the President conceded that the Public Protector’s report was binding on him and that he was required to pay back a reasonable portion of the reasonable costs of the upgrades at his private residence. The Speaker maintained her position that the National Assembly, through setting up Ad Hoc Committees and considering several reports, fulfilled its duty to scrutinise the conduct of the Executive.
In a unanimous judgment written by Mogoeng CJ, this Court held that the power of the Public Protector to take appropriate remedial action has legal effect and is binding. Therefore, neither the President nor the National Assembly is entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect, unless it has been set aside through a proper judicial process.
The Court thus held that the National Assembly’s resolution, based on the Minister’s findings exonerating the President from liability, was inconsistent with the Constitution and unlawful.
The Court also held that, by failing to comply with the Public Protector’s order, the President failed to “uphold, defend and respect” the Constitution because a duty to repay the money was specifically imposed on him through the Public Protector’s constitutional power.
The Court further declared the conduct of the President and the National Assembly inconsistent with their constitutional obligations.
Accordingly, the EFF and DA’s claims fell within the exclusive jurisdiction of the Court. The Court ordered the National Treasury to determine the reasonable portion that the President must pay for the five non-security items listed above and report back to the Court within 60 days.
The Court ordered the President to make payment 45 days thereafter. The President was also ordered to reprimand the Ministers involved in the expenditure at Nkandla.
Finally, the Court declared that the remedial action taken by the Public Protector is binding. The President, Minister, and Speaker were ordered to pay the applicants’ costs, including those of two counsel.