By Tess Peacock

This week in the news Thuli Madonsela, our Public Protector, is going to court on the Nkandla matter. Why?

This is about power, power and power. The Constitution divides government into three components: the executive (the president and his ministers), the judiciary (all the courts) and the legislature (our representatives in Parliament). This is known as a “separation of powers” where the aim is to keep the ordinary citizen safe from people who want to abuse power. Theoretically the legislature is supposed to draft the law, the executive is supposed to implement the law and the judiciary is supposed to make sure that the executive works within the law.

The Constitution, however, also includes other safety mechanisms to protect us (the people). These include the Public Protector; the South African Human Rights Commission; the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities; the Commission for Gender Equality; the Auditor General; the Independent Electoral Commission and the Independent Authority to Regulate Broadcasting. In the first 20 years of our Democracy we haven’t really heard much about these institutions. Until now … (thanks to our Public Protector). And there is very little we understand about what they can do. How powerful is the Public Protector really? We know what she says about Nkandla, we know the government and the ANC is ignoring her but what can be done? We also know what she says about the SABC chief operating officer Hlaudi Motsoeneng, we know that her findings are being ignored but what can be done?

Currently, we have two places to look at to see what the powers of the Public Protector are. First, we must look to the Constitution, which says the Public Protector must “investigate”, “report” and “take appropriate remedial action”. What you need to know about the Constitution is that it is filled with broad principles but often fails to give the meat behind what it means when it says things like “take appropriate remedial action”. Is it binding? What happens if people don’t listen? Secondly, we must look at the Public Protector Act which Parliament passed to elaborate on the powers given in the Constitution. The Public Protector Act is also not entirely clear on what “remedial action” means.

Some people argue that it obvious and that the Public Protector has the power to force government to do what she thinks it ought to do and that the power to “take appropriate remedial action” must include some binding force behind her work. Otherwise it would not be a mechanism that can truly prevent abuses of power. The Public Protector herself supports this view. Other people think her recommendations are not binding and merely a suggestion, or a nudge to get the government “to do the right thing”. The government can then say “thank you Public Protector, we have considered your report and have decided not to follow your recommendations for X, Y and Z reasons”.

Recently, in the Motsoeneng matter, the Western Cape High Court agreed with the latter, holding that the Public Protector’s findings are “not binding and enforceable”. The judge in the Western Cape High Court is not 100% sure though about his decision and thinks the higher courts (the Supreme Court and the Constitutional Court) may come to a different conclusion and has thus agreed that the matter be appealed to the Supreme Court of Appeal (you normally have to go to the Supreme Court of Appeal before you go to the highest court in the land, the Constitutional Court). The Supreme Court of Appeal has heard the case but still needs to deliberate and write a judgment, which will take a little while longer.

The EFF does not want to wait for this judgment and has gone straight to the top court to ask that President Jacob Zuma “pay back the money”. In very rare circumstances you can approach the Constitutional Court directly, the Constitutional Court has agreed that this is one of those rare instances and has set the EFF matter down for a hearing in February next year.

So the Constitutional Court will ultimately settle one of the most important disputes of our democratic era. Every day the Public Protector helps ordinary people figure out whether the government — which has a lot more power than the individual — has stolen, lied, delayed processes, been unfair or unjust etc. What the Public Protector can and cannot do in trying to remedy individual complaints is relevant to how our society deals with corruption and bad governance generally. What will the consequences be? The Constitutional Court will inevitably tell us. That is why you must care about this case.

Tess Peacock is pursuing a master’s degree in law at Harvard Law School. She previously clerked at the Constitutional Court. She has worked as a researcher at the Legal Resources Centre and completed her articles at Webber Wentzel Attorneys.


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