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) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016)

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[2016] ZACC 11
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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) [2016] ZACC 11; 2016 (5) BCLR 618 (CC); 2016 (3) SA 580 (CC) (31 March 2016)

Heads of arguments

CONSTITUTIONAL
COURT OF SOUTH AFRICA
Cases
CCT 143/15 and CCT 171/15
In the matter of:
ECONOMIC FREEDOM
FIGHTERS
Applicant
and
SPEAKER OF THE
NATIONAL
ASSEMBLY
First

Respondent
PRESIDENT JACOB
GEDLEYIHLEKISA ZUMA
Second

Respondent
PUBLIC
PROTECTOR
Third

Respondent
And in the matter
of:
DEMOCRATIC
ALLIANCE
Applicant
and
SPEAKER OF THE
NATIONAL
ASSEMBLY
First

Respondent
PRESIDENT JACOB
GEDLEYIHLEKISA ZUMA
Second

Respondent
MINISTER OF
POLICE
Third

Respondent
PUBLIC
PROTECTOR
Fourth

Respondent
CORRUPTION WATCH
(RF)
NPC
Amicus

Curiae
Neutral citation:
Economic Freedom Fighters v Speaker of
the National Assembly and Others; Democratic Alliance v Speaker of
the National Assembly
and Others
[2016] ZACC 11
Coram:
Mogoeng
CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J,
Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
Judgment:
Mogoeng CJ (unanimous)
Heard on:
9 February 2016
Decided on:
31 March 2016
Summary:
Legal Effect of Powers of Public Protector — Appropriate
Remedial Action — Conduct of President — National
Assembly
Obligations — Separation of Powers
Specific Constitutional Obligations — Exclusive Jurisdiction —
Compliance with Remedial Action — Oversight and
Accountability
ORDER
Applications for the
exercise of exclusive jurisdiction and direct access:
In the result the
following order is made:
1. This Court has exclusive jurisdiction to hear the application by
the Economic Freedom Fighters.
2. The Democratic Alliance’s application for direct access is
granted.
3. 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.
4. 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.
5. 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.
6. The National Treasury must determine a reasonable percentage of
the costs of those measures which ought to be paid personally
by the
President.
7. The National Treasury must report back to this Court on the
outcome of its determination within 60 days of the date of this

order.
8. 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.
9. The President must reprimand the Ministers involved pursuant to
paragraph 11.1.3 of the Public Protector’s remedial action.
10. 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.
11. The President, the Minister of Police and the National Assembly
must pay costs of the applications including the costs of two

counsel.
JUDGMENT
MOGOENG CJ
(Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe
J, Madlanga J, Mhlantla J, Nkabinde J and Zondo
J concurring):
Introduction
[1]
One of the crucial elements of our constitutional vision is to
make a decisive break from the unchecked abuse of State power and

resources that was virtually institutionalised during the apartheid
era.  To achieve this goal, we adopted accountability,
the rule
of law and the supremacy of the Constitution as values of our
constitutional democracy.
[1]
For this reason, public office-bearers ignore their
constitutional obligations at their peril.  This is so because
constitutionalism, accountability and the rule of law constitute the
sharp and mighty sword that stands ready to chop the ugly head
of
impunity off its stiffened neck.  It is against this backdrop
that the following remarks must be understood:
“Certain values in the Constitution have been designated as
foundational to our democracy.  This in turn means that
as
pillar-stones of this democracy, they must be observed scrupulously.
If these values are not observed and their precepts
not carried
out conscientiously, we have a recipe for a constitutional crisis of
great magnitude.  In a State predicated on
a desire to maintain
the rule of law, it is imperative that one and all should be driven
by a moral obligation to ensure the continued
survival of our
democracy.”
[2]
And the role of
these foundational values in helping to strengthen and sustain our
constitutional democracy sits at the heart of
this application.
[2]
In terms of her constitutional powers,
[3]
the Public Protector investigated allegations of improper conduct or
irregular expenditure relating to the security upgrades at
the
Nkandla private residence of the President of the Republic.  She
concluded that the President failed to act in line with
certain of
his constitutional and ethical obligations by knowingly deriving
undue benefit from the irregular deployment of State
resources.
Exercising her constitutional powers to take appropriate remedial
action she directed that the President, duly
assisted by certain
State functionaries, should work out and pay a portion fairly
proportionate to the undue benefit that had accrued
to him and his
family.  Added to this was that he should reprimand the
Ministers involved in that project, for specified improprieties.
[3]
The Public Protector’s report was submitted not only to
the President, but also to the National Assembly presumably to
facilitate
compliance with the remedial action in line with its
constitutional obligations to hold the President accountable.
[4]
For well over one year, neither the President nor the National
Assembly did what they were required to do in terms of the
remedial
action.  Hence these applications by the Economic Freedom
Fighters (EFF) and the Democratic Alliance (DA),
[5]
against the National Assembly and the President.
[4]
What these applications are really about is that—
(a) based on the supremacy of our Constitution, the rule of law and
considerations of accountability, the President should be ordered
to
comply with the remedial action taken by the Public Protector by
paying a reasonable percentage of the reasonable costs expended
on
non˗security features at his private residence;
(b) the President must reprimand the Ministers under whose watch
State resources were expended wastefully and unethically on the

President’s private residence;
(c) this Court must declare that the President failed to fulfil his
constitutional obligations, in terms of sections 83, 96, 181
and 182;
(d) the report of the Minister of Police and the resolution of the
National Assembly that sought to absolve the President
of
liability, must be declared inconsistent with the Constitution and
invalid and that the adoption of those outcomes amount to
a failure
by the National Assembly to fulfil its constitutional
obligations, in terms of sections 55 and 181, to hold the
President
accountable to ensure the effectiveness, rather than subversion, of
the Public Protector’s findings and remedial
action;
(e) the Public Protector’s constitutional powers to take
appropriate remedial action must be clarified or affirmed; and
(f) the State parties, except the Public Protector, are to pay costs
to the Applicants.
Background
[5]
Several South Africans, including a Member of Parliament,
lodged complaints with the Public Protector concerning aspects of the
security upgrades that were being effected at the President’s
Nkandla private residence.  This triggered a fairly extensive

investigation by the Public Protector into the Nkandla project.
[6]
The Public Protector concluded that several improvements were
non-security features.
[6]
Since the State was in this instance under an obligation only to
provide security for the President at his private residence,
any
installation that has nothing to do with the President’s
security amounts to undue benefit or unlawful enrichment to
him and
his family and must therefore be paid for by him.
[7]
In reasoning her way to the findings, the Public Protector
said that the President acted in breach of his constitutional
obligations
in terms of section 96(1), (2)(b) and (c) of the
Constitution which provides:
“Conduct of Cabinet members and Deputy Ministers
(1)
Members of the Cabinet and Deputy Ministers must act in accordance
with a code of ethics prescribed by national legislation.
(2)
Members of the Cabinet and Deputy Ministers may not—
. . .
(b) 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; or
(c) use their position or any information entrusted to them, to
enrich themselves or improperly benefit any other person.”
In the same breath
she concluded that the President violated the provisions of the
Executive Members’ Ethics Act
[7]
and the Executive Ethics Code.
[8]
These are the national legislation and the code of ethics
contemplated in section 96(1).
[8]
The Public Protector’s finding on the violation of
section 96 was based on the self-evident reality that the features
identified
as unrelated to the security of the President, checked
against the list of what the South African Police Service (SAPS)
security
experts had themselves determined to be security
features,
[9]
were installed because the people involved knew they were dealing
with the President.  When some government functionaries
find
themselves in that position, the inclination to want to please higher
authority by doing more than is reasonably required
or legally
permissible or to accede to a gentle nudge by overzealous and
ambitious senior officials to do a “little wrong”
here
and there, may be irresistible.  A person in the position of the
President should be alive to this reality and must guard
against its
eventuation.  Failure to do this may constitute an infringement
of this provision.
[9]
There is thus a direct connection between the position of
President and the reasonably foreseeable ease with which the
specified
non-security features, asked for or not, were installed at
the private residence.  This naturally extends to the undue
enrichment.
[10]
Also, the mere fact of the President allowing non˗security
features, about whose construction he was reportedly aware,
[11]
to be built at his private residence at government expense, exposed
him to a “situation involving the risk of a conflict
between
[his] official responsibilities and private interests”.
[12]
The potential conflict lies here.  On the one hand, the
President has the duty to ensure that State resources are used
only
for the advancement of State interests.  On the other hand,
there is the real risk of him closing an eye to possible
wastage, if
he is likely to derive personal benefit from indifference.  To
find oneself on the wrong side of section 96, all
that needs to be
proven is a risk.  It does not even have to materialise.
[10]
Having arrived at the conclusion that the President and his
family were unduly enriched as a result of the non-security features,

the Public Protector took remedial action against him in terms of
section 182(1)(c) of the Constitution.  The remedial action

taken reads:
“11.1 The President is to:
11.1.1
Take steps, with the assistance of the National Treasury and the
SAPS, to determine the reasonable cost of the measures implemented
by
the DPW [Department of Public Works] at his private residence that do
not relate to security, and which include [the] visitors’

centre, the amphitheatre, the cattle kraal and chicken run and the
swimming pool.
11.1.2
Pay a reasonable percentage of the cost of the measures as determined
with the assistance of the National Treasury, also
considering the
DPW apportionment document.
11.1.3
Reprimand the Ministers involved for the appalling manner in which
the Nkandla Project was handled and state funds were abused.
11.1.4
Report to the National Assembly on his comments and actions on this
report within 14 days.”
[13]
[11]
Consistent with this directive, the President submitted his
response to the National Assembly within 14 days of receiving the
report.
[14]
It was followed by yet another response about five months later.
[12]
For its part, the National Assembly set up two Ad Hoc
Committees,
[15]
comprising its members, to examine the Public Protector’s
report as well as other reports including the one compiled, also
at
its instance, by the Minister of Police.  After endorsing the
report by the Minister exonerating the President from liability
and a
report to the same effect by its last Ad Hoc Committee, the National
Assembly resolved to absolve the President of all liability.

Consequently, the President did not comply with the remedial action
taken by the Public Protector.
[13]
Dissatisfied with this outcome, the EFF launched this
application, claiming that it falls within this Court’s
exclusive jurisdiction.
It, in effect, asked for an order
affirming the legally binding effect of the Public Protector’s
remedial action; directing
the President to comply with the Public
Protector’s remedial action; and declaring that both the
President and the National
Assembly acted in breach of their
constitutional obligations.  The DA launched a similar
application in the Western Cape Division
of the High Court, Cape Town
and subsequently to this Court conditional upon the EFF’s
application being heard by this Court.
[14]
It is fitting to mention at this early stage that eight days
before this matter was heard, the President circulated a draft order

to this Court and the parties.  After some parties had expressed
views on aspects of that draft, a revised version was circulated
on
the day of the hearing.  The substantial differences between the
two drafts are that, unlike the first, the second introduces
the
undertaking by the President to reprimand certain Ministers in terms
of the remedial action and also stipulates the period
within which
the President would personally pay a reasonable percentage of the
reasonable costs of the non-security upgrades after
a determination
by National Treasury.  Also, the Auditor-General has been
left out as one of the institutions that were
to assist in the
determination of the amount payable by the President.
Otherwise, the essence of both draft orders is that
those aspects of
the Public Protector’s remedial measures, still capable of
enforcement, would be fully complied with.
As for costs, the
President proposed that they be reserved for future determination.
Exclusive
jurisdiction
[15]
The exclusive jurisdiction of this Court is governed by
section 167(4)(e) of the Constitution which says:
“(4) Only the Constitutional Court may—
…
(e)
decide that Parliament or the President has failed to fulfil a
constitutional obligation.”
[16]
Whether this Court has exclusive jurisdiction in a matter
involving the President or Parliament is not a superficial function
of
pleadings merely alleging a failure to fulfil a constitutional
obligation.  The starting point is the pleadings.  But
much
more is required.
[16]
First, it must be established that a constitutional obligation
that rests on the President or Parliament is the one that
allegedly
has not been fulfilled.  Second, that obligation must be closely
examined to determine whether it is of the kind
envisaged by section
167(4)(e).
[17]
[17]
Additional and allied considerations are that section
167(4)(e) must be given a narrow meaning.
[18]
This is so because whenever a constitutional provision is construed,
that must be done with due regard to other constitutional
provisions
that are materially relevant to the one being interpreted.  In
this instance, section 172(2)(a) confers jurisdiction
on the Supreme
Court of Appeal, the High Court and courts of similar status to
pronounce on the constitutional validity of laws
or conduct of the
President.  This is the responsibility they share with this
Court – a terrain that must undoubtedly
be adequately insulated
against the inadvertent and inappropriate monopoly of this Court.
An interpretation of section 167(4)(e)
that is cognisant of the
imperative not to unduly deprive these other courts of their
constitutional jurisdiction, would be loath
to assume that this Court
has exclusive jurisdiction even if pleadings state strongly or
clearly that the President or Parliament
has failed to fulfil
constitutional obligations.
[18]
An alleged breach of a constitutional obligation must relate
to an obligation that is specifically imposed on the President or
Parliament.
An obligation shared with other organs of State
will always fail the section 167(4)(e) test.
[19]
Even if it is an office-bearer- or institution-specific
constitutional obligation, that would not necessarily be enough.
Doctors for Life
provides useful guidance in this connection.
There, Ngcobo J said “obligations that are readily
ascertainable and are
unlikely to give rise to disputes”,
[20]
do not require a court to deal with “a sensitive aspect of the
separation of powers”
[21]
and may thus be heard by the High Court.
[22]
This relates, as he said by way of example, to obligations expressly
imposed on Parliament where the Constitution provides
that a
particular legislation would require a two-thirds majority to be
passed.  But where the Constitution imposes the primary

obligation on Parliament and leaves it at large to determine what
would be required of it to execute its mandate, then crucial

political questions are likely to arise which would entail an
intrusion into sensitive areas of separation of powers.  When

this is the case, then the demands for this Court to exercise its
exclusive jurisdiction would have been met.
[23]
[19]
To determine whether a dispute falls within the exclusive
jurisdiction of this Court, section 167(4)(e) must be given a
contextual
and purposive interpretation with due regard to the
special role this apex Court was established to fulfil.  As the
highest
court in constitutional matters and “the ultimate
guardian of the Constitution and its values”,
[24]
it has “to adjudicate finally in respect of issues which would
inevitably have important political consequences”.
[25]
Also to be factored into this process is the utmost importance of the
highest court in the land being the one to deal with
disputes that
have crucial and sensitive political implications.  This is
necessary to preserve the comity between the judicial
branch and the
executive and legislative branches of government.
[26]
[20]
That this Court enjoys the exclusive jurisdiction to decide a
failure by the President to fulfil his constitutional obligations
ought not to be surprising, considering the magnitude and vital
importance of his responsibilities.  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.
[27]
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.
[28]
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.
[29]
And almost all the key role players in the realisation of our
constitutional vision and the aspirations of all our people
are
appointed and may ultimately be removed by him.
[30]
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 constitutional project.
[21]
He 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 to remember at its mention on any global platform.
[22]
Similarly, the National Assembly, and by extension Parliament,
is the embodiment of the centuries-old dreams and legitimate
aspirations
of all our people.  It is the voice of all South
Africans, especially the poor, the voiceless and the
least˗remembered.
It is the watchdog of State resources,
the enforcer of fiscal discipline and cost-effectiveness for the
common good of all our
people.
[31]
It also bears the responsibility to play an oversight role over the
Executive and State organs and ensure that constitutional
and
statutory obligations are properly executed.
[32]
For this reason, it fulfils a pre-eminently unique role of holding
the Executive accountable for the fulfilment of the promises
made
[33]
to the populace through the State of the Nation Address, budget
speeches, policies, legislation and the Constitution, duly
undergirded
by the affirmation or oath of office constitutionally
administered to the Executive before assumption of office.
Parliament
also passes legislation with due regard to the needs
and concerns of the broader South African public.  The
willingness and
obligation to do so is reinforced by each member’s
equally irreversible public declaration of allegiance to the
Republic,
obedience, respect and vindication of the Constitution and
all law of the Republic, to the best of her abilities.  In sum,

Parliament is the mouthpiece, the eyes and the
service-delivery-ensuring machinery of the people.  No doubt, it
is an irreplaceable
feature of good governance in South Africa.
[23]
For the EFF to meet the requirements for this Court to
exercise its exclusive jurisdiction over the President and the
National Assembly,
it will have to first rely on what it considers to
be a breach of a constitutional obligation that rests squarely on the
President
as an individual and on the National Assembly as an
institution.  That obligation must have a demonstrable and
inextricable
link to the need to ensure compliance with the remedial
action taken by the Public Protector.  Put differently, it must
be
apparent from a reading of the constitutional provision the EFF
relies on, that it specifically imposes an obligation on the
President
or the National Assembly, but in a way that keeps focus
sharply on or is intimately connected to the need for compliance with
the
remedial action.  If both or one of them bears the
obligation merely as one of the many organs of State, then other
courts
like the High Court and later the Supreme Court of Appeal
would in terms of section 172(2)(a) also have jurisdiction in the

matter.  In the latter case direct access
[34]
to this Court would have to be applied for and obviously granted only
if there are exceptional circumstances and it is in the interests
of
justice to do so.
[24]
Where, as in this case, both the President and the National
Assembly are said to have breached their respective constitutional
obligations,
which could then clothe this Court with jurisdiction,
and exclusive jurisdiction is only proven in respect of the one but
not the
other, there might still be room to entertain the application
against both provided it is in the interests of justice to do so.

This would be the case, for example, where: (i) the issue(s) involved
are of high political importance with potentially far-reaching

implications for the governance and stability of our country; (ii)
the issue(s) at the heart of the alleged breach of constitutional

obligations by both the President and the National Assembly are
inseparable; and (iii) the gravity and nature of the issue(s) at

stake are such that they demand an expeditious disposition of the
matter in the interests of the nation.  This list is not

exhaustive.
Exclusive
jurisdiction in the application against the President
[25]
Beginning with the President, the EFF argued that he breached
his obligations in terms of sections 83, 96,
[35]
181 and 182 of the Constitution.  And it is on the strength of
these alleged breaches that this Court is asked to exercise
exclusive
jurisdiction.
[26]
Section 83 does impose certain obligations on the President in
particular.  It provides:
“The President—
(a)
is the Head of State and head of the national executive;
(b)
must uphold, defend and respect the Constitution as the supreme law
of the Republic; and
(c)
promotes the unity of the nation and that which will advance the
Republic.”
[36]
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.
[37]
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
constitutional 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.  This imposition of an obligation specifically
on
the President still raises the question: which obligation
specifically imposed by the Constitution on the President has he
violated?  Put differently, how did he fail to uphold, defend
and respect the supreme law of the Republic?
[27]
Sections 181(3) and 182(1)(c) in a way impose obligations on
the President.  But, as one of the many.  None of these
provisions
singles out the President for the imposition of an
obligation.  This notwithstanding the jurisprudential
requirement that
an obligation expressly imposed on the President,
not Cabinet as a whole or organs of State in general, is required to
establish
exclusive jurisdiction.
[38]
[28]
For the purpose of deciding whether this Court has exclusive
jurisdiction, it must still be determined whether on its own, section

83(b) imposes on the President an obligation of the kind required by
section 167(4)(e).  He is said to have failed to “uphold,

defend and respect the Constitution as the supreme law of the
Republic”.  This he allegedly did by not complying with

the remedial action taken by the Public Protector in terms of
section 182(1)(c) thus violating his section 181(3) obligation
to
assist and protect the Public Protector in order to guarantee her
dignity and effectiveness.
[29]
If the failure by the President to comply with or enforce the
remedial action taken by the Public Protector against a member of the

Executive and fulfil his shared obligation to assist and protect the
Public Protector so as to ensure her independence, dignity
and
effectiveness, amounts to a failure envisaged by section 167(4)(e),
then the list of matters that would fall under this Court’s

exclusive jurisdiction would be endless.  What this could then
mean is that whenever the President is said to have failed
to fulfil
a shared obligation in any provision of the Constitution,
[39]
or the Bill of Rights, this Court would readily exercise its
exclusive jurisdiction.  This would be so because on this logic,

all a litigant would have to do to trigger this Court’s
exclusive jurisdiction, would be to rely on the shared constitutional

obligations as in the Bill of Rights, and section 83 which would then
confer exclusive jurisdiction on this Court in all applications

involving the President.
[30]
I reiterate that, this would mean that, any failure to fulfil
shared constitutional obligations by any member of the Executive,
would thus be attributable to the President as his own failure.
After all he appoints them and they are answerable to him.
Their
infringement, coupled with reliance on section 83, would thus justify
the exercise of exclusive jurisdiction by this
Court.  Such an
unbridled elastication of the scope of application of section 83 or
167(4)(e) would potentially marginalise
the High Court and the
Supreme Court of Appeal in all constitutional matters involving the
President.
[31]
Section 83 is in truth very broad and potentially extends to
just about all the obligations that rest, directly or indirectly, on

the shoulders of the President.  The President is a
constitutional being.  In the Constitution the President exists,

moves and has his being.  Virtually all his obligations are
constitutional in nature because they have their origin, in some
way,
in the Constitution.  An overly permissive reliance on section
83 would thus be an ever-present guarantee of direct access
to this
Court under its exclusive jurisdiction.  This does not accord
with the overall scheme of the Constitution.  And
certainly not
with the purpose behind the provisions of section 167(4)(e) read
with section 172(2)(a) of the Constitution,
properly construed.
[32]
Section 167(4)(e) must be given a restrictive meaning.
[40]
This will help arrest litigants’ understandable eagerness to
have every matter involving the President heard by this
Court, as a
court of first and last instance.  Our High Court, specialist
courts of equivalent status and Supreme Court of
Appeal also deserve
the opportunity to grapple with constitutional matters involving the
President so that they too may contribute
to the further development
and enrichment of our constitutional jurisprudence.
[41]
[33]
It bears repetition, that section 83(b) does impose an
obligation on the President in particular to “uphold, defend
and respect
the Constitution”.  But to meet the section
167(4)(e) requirements, conduct by the President himself that tends
to show
that he personally failed to fulfil a constitutional
obligation expressly imposed on him, must still be invoked, to
establish the
essential link between the more general section 83
obligations and a particular right or definite obligation.  It
needs to
be emphasised though that the stringency of this requirement
is significantly attenuated by the applicability of section 83(b)
which already imposes a President-specific obligation.  The
additional constitutional obligation is required only for the purpose

of narrowing down or sharpening the focus of the otherwise broad
section 83(b) obligation, to a specific and easily identifiable

obligation.  The demand for President specificity from the
additional constitutional obligation is not as strong as it
is
required to be where there is not already a more pointed
President-specific obligation as in section 83.  A
constitutionally-sourced
and somewhat indirectly imposed obligation
complements section 83 for the purpose of meeting the requirement of
section 167(4)(e).
Although the additional constitutional
obligation it imposes on the President would, on its own, be
incapable of establishing the
required specificity in relation to
section 167(4)(e), it is not so in this case because of
section 83(b).
[34]
I must emphasise that agent-specificity is primarily
established by section 83.  The somewhat indirectly imposed
obligation
merely provides reinforcement for it.  An indirectly
imposed obligation is one that is not derived from section 83(b), but

arises from the exercise of a constitutional power, like that
conferred on the Public Protector by the Constitution.  It nails

the obligation down on the President.  When an obligation is
imposed on the President specifically as a result of the exercise
of
a constitutional power, for the purpose of meeting the section
167(4)(e) test, the indirectly imposed obligations cannot be
dealt
with as if the section 83(b) obligations do not exist.  For,
they impose all-encompassing obligations on the President
in relation
to the observance of the Constitution.  In sum, section 83(b)
lays the foundation which is most appropriately
complemented by the
imposition of an obligation through the exercise of a constitutional
power.
[35]
In this case, the requirement that the President failed to
fulfil a constitutional obligation that is expressly imposed on him
is
best satisfied by reliance on both sections 83(b) and 182(1)(c) of
the Constitution.  Very much in line with the narrow or

restrictive meaning to be given to section 167(4)(e) and mindful of
the role that the other courts must also play in the development
of
our constitutional law, section 182(1)(c) does in this case, impose
an actor˗specific obligation.  Although section
182 leaves
it open to the Public Protector to investigate State functionaries in
general, in this case, the essential link is established
between this
section and section 83 by the remedial action actually taken in terms
of section 182(1)(c).  In the exercise
of that constitutional
power, the Public Protector acted, not against the Executive or State
organs in general, but against the
President himself.
Compliance was required only from the President.  He was the
subject of the investigation and is
the primary beneficiary of the
non-security upgrades and thus the only one required to meet the
demands of the constitutionally-sourced
remedial action.
[36]
There is a primary obligation, that flows directly from
section 182(1)(c), imposed upon only the President to take specific
steps
in fulfilment of the remedial action.  The President’s
alleged disregard for the remedial action taken against him,
[42]
does seem to amount to a breach of a constitutional obligation.
And this provides the vital connection section 83(b) needs
to meet
the section 167(4)(e) requirements.
[37]
Although section 181(3) is relevant, it does not impose a
President-specific obligation.  It is relevant but applies to a
wide
range of potential actors.  It was not and could not have
been primarily relied on by the Public Protector to impose any
constitutionally-sanctioned
obligation on the President which could
then create the crucial link with section 83(b).  A combination
of only these two
sections would be a far cry from what section
167(4)(e) requires to be applicable.  The section 181(3)
obligation is a relatively
distant and less effective add-on to the
potent connection between sections 83(b) and 182(1)(c), necessary to
unleash the exclusive
jurisdiction.  These remarks on section
181(3) apply with equal force to the National Assembly.
[38]
This means that it is not open to any litigant who seeks
redress for what government has done or failed to do, merely to lump
up
section 83 with any other constitutional obligation that applies
also to the President, as one of the many, so as to bypass all
other
superior courts and come directly to this Court.  Reliance on
section 83 coupled with a section that provides a
shared
constitutional obligation will not, without more, guarantee access to
this Court in terms of section 167(4)(e) in a matter
against the
President.  Section 83 does not have an overly liberal
application that would have this Court act readily in terms
of its
exclusive jurisdiction whenever it is relied on.
[39]
President-specific obligations like some of those set out in
section 84 of the Constitution or obligations imposed on the
President
through the exercise of powers expressly conferred by the
Constitution on those who then exercise them against the President,
on
their own or coupled with those in section 83 respectively, are
master keys to this Court’s exclusive jurisdiction in terms
of
section 167(4)(e).  Remedial action taken against the President
is one of those constitutional powers, the exercise of
which might
justify the activation of this Court’s exclusive jurisdiction
when combined with section 83(b).
[40]
I conclude that the EFF has made out a case that the
President’s alleged failure to comply with the remedial action
coupled
with the failure to uphold the Constitution, relate to
constitutional obligations imposed specifically on him that are
intimately
connected to the issue central to this application, which
is the obligation for the President to comply with the remedial
action.
Conditions for the exercise of this Court’s
exclusive jurisdiction have been met.  That does not, however,
dispose of
the entire application for this Court to exercise its
exclusive jurisdiction.
Exclusive
jurisdiction in the application against the National Assembly
[41]
The National Assembly is also said to have breached its
constitutional obligations imposed by sections 55(2) and 181(3) of
the Constitution.
Section 55(2) provides:
“The National Assembly must provide for mechanisms—
(a)
to ensure that all executive organs of state in the national sphere
of government are accountable to it; and
(b)
to maintain oversight of—
(i) the exercise of national executive authority, including the
implementation of legislation; and
(ii) any organ of state.”
[42]
Skinned to the bone, the contention here is that the National
Assembly failed to fulfil its constitutional obligation to hold the

President accountable.  Just to recap, what triggered the duty
to hold the President accountable?  The Public Protector

furnished the National Assembly with her report which contained
unfavourable findings and the remedial action taken against
the
President.  The National Assembly resolved to absolve the
President of compliance with the remedial action instead
of
facilitating its enforcement as was expected by the Public
Protector.  It is on this basis argued that it failed to fulfil

its constitutional obligations to hold him accountable.  Whether
this is correct need not be established to conclude that
this Court
has exclusive jurisdiction.
[43]
[43]
It is still necessary though, to determine whether the
obligation allegedly breached is of the kind contemplated in section
167(4)(e).
Holding members of the Executive accountable is
indeed a constitutional obligation specifically imposed on the
National Assembly.
This, however, is not all it takes to meet
the requirements of section 167(4)(e).
[44]
We still need to drill deeper into this jurisdictional question.
Is holding the Executive accountable a primary and
undefined
obligation imposed on the National Assembly?  Yes!  For the
Constitution neither gives details on how the National
Assembly is to
discharge the duty to hold the Executive accountable nor are the
mechanisms for doing so outlined or a hint given
as to their nature
and operation.  To determine whether the National Assembly has
fulfilled or breached its obligations will
therefore entail a
resolution of very crucial political issues.  And it is an
exercise that trenches sensitive areas of separation
of powers.
It could at times border on second-guessing the National Assembly’s
constitutional power or discretion.
This is a powerful
indication that this Court is entitled to exercise its exclusive
jurisdiction in this matter.  But that
is not all.
[44]
As in the case of the President, the National Assembly also
has an actor˗specific constitutional obligation imposed on it by

section 182(1)(b) and (c) read with section 8(2)(b)(iii) of the
Public Protector Act.  Crucially, the Public Protector’s

obligation “to report on that conduct” means to report
primarily to the National Assembly, in terms of section

182(1)(b) of the Constitution read with section 8 of the Public
Protector Act.  She reported to the National Assembly for
it to
do something about that report.  Together, these sections bring
home into the Chamber of the National Assembly
the
constitutional obligation to take appropriate remedial action.
Although remedial action was not taken against the National Assembly,

the report in terms of section 182(1)(b) read with section
8(2)(b)(iii) of the Act was indubitably presented to it for its
“urgent
attention. . .or. . .intervention”.  That
constitutionally-sourced obligation is not shared, not even with the
National
Council of Provinces.  It is exclusive to the
National Assembly.  When that report was received by the
National Assembly,
it effectively operationalised the House’s
obligations in terms of sections 42(3) and 55(2) of the
Constitution.  The
presentation of that report delivered a
constitutionally-derived obligation to the National Assembly for
action.  And it is
alleged that it failed to fulfil these
obligations in relation to the remedial action.
[45]
This Court, as the highest court in the land and the ultimate
guardian of the Constitution and its values, has exclusive
jurisdiction
also in so far as it relates to the National
Assembly.
[45]
The EFF has thus met the requirements for this Court to exercise its
exclusive jurisdiction in the application against both
the President
and the National Assembly.
[46]
Since the DA’s application is conditional upon the EFF’s
application being heard, the striking similarity between these

applications, the extreme sensitivity and high political importance
of the issues involved and the fact that these applications
traverse
essentially the same issues impels us, on interests of justice
considerations, to hear the DA application as well.
[47]
Why do we have the office of the Public Protector?
The purpose of
the office of the Public Protector
[48]
The history of the office of the Public Protector, and the
evolution of its powers over the years were dealt with in two
judgments
of the Supreme Court of Appeal.
[46]
I do not think that much benefit stands to be derived from rehashing
that history here.  It suffices to say that a collation
of some
useful historical data on that office may be gleaned from those
judgments.
[49]
Like other Chapter Nine institutions, the office of the Public
Protector was created to “strengthen constitutional democracy

in the Republic”.
[47]
To achieve this crucial objective, it is required to be independent
and subject only to the Constitution and the law.
It is
demanded of it, as is the case with other sister institutions, to be
impartial and to exercise the powers and functions vested
in it
without fear, favour or prejudice.
[48]
I hasten to say that this would not ordinarily be required of an
institution whose powers or decisions are by constitutional
design
always supposed to be ineffectual.  Whether it is impartial or
not would be irrelevant if the implementation of the
decisions it
takes is at the mercy of those against whom they are made.  It
is also doubtful whether the fairly handsome budget,
offices and
staff all over the country and the time and energy expended on
investigations, findings and remedial actions taken,
would ever make
any sense if the Public Protector’s powers or decisions were
meant to be inconsequential.  The constitutional
safeguards in
section 181 would also be meaningless if institutions
purportedly established to strengthen our constitutional
democracy
lacked even the remotest possibility to do so.
[50]
We learn from the sum-total of sections 181
[49]
and 182
[50]
that the institution of the Public Protector is pivotal to the
facilitation of good governance in our constitutional
dispensation.
[51]
In appreciation of the high sensitivity and importance of its role,
regard being had to the kind of complaints, institutions
and
personalities likely to be investigated, as with other Chapter Nine
institutions, the Constitution guarantees the independence,

impartiality, dignity and effectiveness of this institution as
indispensable requirements for the proper execution of its mandate.

The obligation to keep alive these essential requirements for
functionality and the necessary impact is placed on organs of State.

And the Public Protector is one of those deserving of this
constitutionally-imposed assistance and protection.  It is with

this understanding that even the fact that the Public Protector was
created, not by national legislation but by the supreme law,
to
strengthen our constitutional democracy, that its role and powers
must be understood.
[51]
The office of the Public Protector is a new institution –
different from its predecessors like the “Advocate General”,

or the “Ombudsman” and only when we became a
constitutional democracy did it become the “Public Protector”.

That carefully selected nomenclature alone, speaks volumes of the
role meant to be fulfilled by the Public Protector.
It is
supposed to protect the public from any conduct in State affairs or
in any sphere of government that could result in any
impropriety or
prejudice.  And of course, the amendments
[52]
to the Public Protector Act have since added unlawful enrichment and
corruption
[53]
to the list.  Among those to be investigated by the Public
Protector for alleged ethical breaches, are the President and Members

of the Executive at national and provincial levels.
[54]
[52]
The Public Protector is thus one of the most invaluable
constitutional gifts to our nation in the fight against corruption,
unlawful
enrichment, prejudice and impropriety in State affairs and
for the betterment of good governance.  The tentacles of poverty

run far, wide and deep in our nation.  Litigation is
prohibitively expensive and therefore not an easily exercisable
constitutional
option for an average citizen.
[55]
For this reason, the fathers and mothers of our Constitution
conceived of a way to give even to the poor and marginalised
a voice,
and teeth that would bite corruption and abuse excruciatingly.  And
that is the Public Protector.  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.  The Public Protector is one of
the true crusaders and champions of anti˗corruption
and clean
governance.
[53]
Hers are indeed very wide powers that leave no lever of
government power above scrutiny, coincidental “embarrassment”

and censure.  This is a necessary service because State
resources belong to the public, as does State power.  The
repositories
of these resources and power are to use them, on behalf
and for the benefit of the public.  When this is suspected or
known
not to be so, then the public deserves protection and that
protection has been constitutionally entrusted to the
Public Protector.
This finds support in what this Court
said in the
Certification
case:
“[M]embers of the public aggrieved by the conduct of government
officials should be able to lodge complaints with the Public

Protector, who will investigate them and take appropriate remedial
action.”
[56]
[54]
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.
Our
constitutional democracy can only be truly strengthened when: there
is zero-tolerance for the culture of impunity; the prospects
of good
governance are duly enhanced by enforced accountability; the
observance of the rule of law; and respect for every aspect
of our
Constitution as the supreme law of the Republic are real.
Within the context of breathing life into the remedial powers
of the
Public Protector, she must have the resources and capacities
necessary to effectively execute her mandate so that she can
indeed
strengthen our constitutional democracy.
[55]
Her investigative powers are not supposed to bow down to
anybody, not even at the door of the highest chambers of raw State
power.
The predicament though is that mere allegations and
investigation of improper or corrupt conduct against all, especially
powerful
public office-bearers, are generally bound to attract a very
unfriendly response.  An unfavourable finding of unethical or

corrupt conduct coupled with remedial action, will probably be
strongly resisted in an attempt to repair or soften the inescapable

reputational damage.  It is unlikely that unpleasant findings
and a biting remedial action would be readily welcomed by those

investigated.
[56]
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.  The purpose
of
the office of the Public Protector is therefore to help uproot
prejudice, impropriety, abuse of power and corruption in State

affairs, all spheres of government and State-controlled
institutions.  The Public Protector is a critical and
indeed
indispensable factor in the facilitation of good governance
and keeping our constitutional democracy strong and vibrant.
The nature and
meaning of “as regulated by” and “additional powers
and functions”
[57]
Our Constitution is the supreme law of the Republic.  It
is not subject to any law including national legislation unless
otherwise
provided by the Constitution itself.
[57]
The proposition that the force or significance of the investigative,
reporting or remedial powers of the Public Protector
has somehow
been watered down by the provisions of the Public Protector Act,
is irreconcilable with the supremacy of the Constitution,
which is
the primary source of those powers.  To put this argument
[58]
to rest, once and for all, its very bases must be dealt with.
The first basis is grounded on section 182(1) in so far as
it
provides that “the Public Protector has the power, as regulated
by national legislation”.  The second is section
182(2)
which says that “the Public Protector has the additional powers
and functions prescribed by national legislation”.
[58]
The constitutional powers of the Public Protector are to
investigate irregularities and corrupt conduct or practices in all
spheres
of government, to report on its investigations and take
appropriate remedial action.  Section 182(1) and (2) recognises
the
pre-existing national legislation which does regulate these
powers and confer additional powers and functions on the Public
Protector.
This obviously means that since our Constitution is
the supreme law, national legislation cannot have the effect of
watering down
or effectively nullifying the powers already conferred
by the Constitution on the Public Protector.  That national
legislation
is the Public Protector Act and would, like all
other laws, be invalid if inconsistent with the Constitution.
In any
event section 182(1) alludes to national legislation that
“regulates” the Public Protector’s
three-dimensional
powers.
[59]
That most of the powers provided for by the Public Protector
Act were already in place when the Constitution came into operation

does not affect the constitutionally prescribed regulatory and
supplementary role of the Act.  The drafters of the Constitution

must have been aware of the provisions of the Act.  This is
apparent from the words “as regulated” in section

182(1).  If the legislation that was to regulate were not yet in
place, words like “to be regulated” or similar

expressions that point to the future, would in all likelihood have
been employed.  Notably, the Public Protector Act was amended
no
fewer than five times
[59]
since the coming into operation of the Constitution.  Furthermore,
its long title, substituted in 1998, reads: “To provide
for
matters incidental to the office of the Public Protector as
contemplated in the Constitution of the Republic of South
Africa,
1996; and to provide for matters connected therewith”.  This
buries the proposition that Parliament has not
yet enacted
legislation that would regulate the constitutional powers of the
Public Protector and provide for additional powers
and
functions.  If it were to be amended again that would, as with
all other legislation, simply be for the purpose of improving
on what
the Public Protector Act has already done.
[60]
“Regulate power” in this context and in terms of
its ordinary grammatical meaning connotes an enablement of the
correct
exercise of the constitutional power.  The Constitution
points to a functional aid that would simplify and provide details

with respect to how the power in its different facets is to be
exercised.  For example, the Public Protector Act provides

somewhat elaborate guidelines on how the power to investigate, report
and take remedial action is to be exercised.
[60]
[61]
Section 182(2) envisages “additional” but
certainly not “substitutionary” powers.  It
contemplates
“additional powers and functions”.
Giving the word “additional” its ordinary grammatical
meaning,
it means “extra” or “more” or “over
and above”.  Nothing about “additional”
in
this context could ever be reasonably understood to suggest the
removal or limitation of the constitutional powers.  A
reading
of section 6 of the Public Protector Act bears this out.  The
Public Protector Act did not purport to nor could it
validly denude
the Public Protector of her constitutional powers.  On the
contrary and by way of example, section 6(4)(a)(iii)
and (iv) adds
expressly, unlawful enrichment or corruption to the powers and
functions she already had.  The power to investigate

institutions in which the State is the majority or controlling
shareholder, undue delay, unfair and discourteous conduct have also

been added to the investigative powers of the Public Protector.
[61]
[62]
A useful regulatory framework for the fruitful exercise of the
Public Protector’s powers does, as promised, exist.  And

by reference in the Constitution and subsequent statutory amendments,
more powers and functions were indeed added to those already
listed
in section 182(1) of the Constitution.  The remedial action that
could be resorted to under different circumstances,
is also detailed
in the Public Protector Act, for greater clarity and effectiveness.
Likewise, the circumstances and manner
in which reports on the
investigations are to be presented, and to whom, all reinforce the
harmonious correlation between the relevant
provisions of the supreme
law and the Public Protector Act.
Legal effect of
remedial action
[63]
Section 182(1)(c) of the Constitution provides that the
“Public Protector has the power, as regulated by national
legislation.
. .to take appropriate remedial action”.
This remedial action is also provided for in somewhat elaborate terms
in section
6 of the Public Protector Act.
[62]
What then is the legal status or effect of the totality of the
remedial powers vested in the Public Protector?
[64]
The power to take remedial action is primarily sourced from
the supreme law itself.  And the powers and functions conferred

on the Public Protector by the Act owe their very existence or
significance to the Constitution.  Just as roots do not owe

their life to branches, so are the powers provided by national
legislation incapable of eviscerating their constitutional forebears

into operational obscurity.  The contention that regard must
only be had to the remedial powers of the Public Protector
in
the Act and that her powers in the Constitution have somehow been
mortified or are subsumed under the Public Protector
Act, lacks
merit.  To uphold it would have the same effect as “the
tail wagging the dog”.
[63]
[65]
Complaints are lodged with the Public Protector to cure
incidents of impropriety, prejudice, unlawful enrichment or
corruption in
government circles.  This is done not only to
observe the constitutional values and principles necessary to ensure
that the
“efficient, economic and effective use of resources
[is] promoted”,
[64]
that accountability finds expression, but also that high standards of
professional ethics are promoted and maintained.
[65]
To achieve this requires a difference-making and responsive remedial
action.  Besides, one cannot really talk about
remedial action
unless a remedy in the true sense is provided to address a complaint
in a meaningful way.
[66]
The language, context and purpose of sections 181 and 182 of
the Constitution give reliable pointers to the legal status or effect

of the Public Protector’s power to take remedial action.
That the Public Protector is required to be independent and
subject
only to the Constitution and the law, to be impartial and exercise
her powers and perform her functions without fear, favour
or
prejudice,
[66]
is quite telling.  And the fact that her investigative and
remedial powers target even those in the throne-room of executive
raw
power, is just as revealing.  That the Constitution requires the
Public Protector to be effective and identifies
the need for her
to be assisted and protected, to create a climate conducive to
independence, impartiality, dignity and effectiveness,
[67]
shows just how potentially intrusive her investigative powers are and
how deep the remedial powers are expected to cut.
[67]
The obligation to assist and protect the Public Protector so
as to ensure her dignity and effectiveness is relevant to the
enforcement
of her remedial action.
[68]
The Public Protector would arguably have no dignity and be
ineffective if her directives could be ignored willy-nilly.
The
power to take remedial action that is so inconsequential that
anybody, against whom it is taken, is free to ignore or second guess,

is irreconcilable with the need for an independent, impartial and
dignified Public Protector and the possibility to effectively

strengthen our constitutional democracy.  The words “take
appropriate remedial action” do point to a realistic

expectation that binding and enforceable remedial steps might
frequently be the route open to the Public Protector to take.

“Take appropriate remedial action” and “effectiveness”,
are operative words essential for the fulfilment
of the
Public Protector’s constitutional mandate.
Admittedly in a different context, this Court said in
Fose
:
“An appropriate remedy must mean an effective remedy, for
without effective remedies for breach, the values underlying and
the
rights entrenched in the Constitution cannot properly be upheld or
enhanced.  Particularly in a country where so few have
the means
to enforce their rights through the courts, it is essential that on
those occasions when the legal process does establish
that an
infringement of an entrenched right has occurred, it be effectively
vindicated.”
[69]
[68]
Taking appropriate remedial action is much more significant
than making a mere endeavour to address complaints as the most the
Public
Protector could do in terms of the Interim Constitution.
[70]
It connotes providing a proper, fitting, suitable and effective
remedy for whatever complaint and against whomsoever the

Public Protector is called upon to investigate.
[71]
However sensitive, embarrassing and far˗reaching the
implications of her report and findings, she is constitutionally

empowered to take action that has that effect, if it is the best
attempt at curing the root cause of the complaint.  Remedial

action must therefore be suitable and effective.
[72]
For it to be effective in addressing the investigated complaint, it
often has to be binding.  In
SABC v DA
the Supreme Court
of Appeal correctly observed:
“The Public Protector cannot realise the constitutional purpose
of her office if other organs of State may second-guess her
findings
and ignore her recommendations.  Section 182(1)(c) must
accordingly be taken to mean what it says.  The Public Protector

may take remedial action herself.  She may determine the remedy
and direct the implementation.  It follows that the language,

history and purpose of section 182(1)(c) make it clear that the
Constitution intends for the Public Protector to have the power
to
provide an effective remedy for State misconduct, which includes the
power to determine the remedy and direct its implementation.”
[73]
[69]
But, what legal effect the appropriate remedial action has in
a particular case, depends on the nature of the issues under
investigation
and the findings made.  As common sense and
section 6 of the Public Protector Act suggest, mediation,
conciliation or negotiation
may at times be the way to go.
Advice considered appropriate to secure a suitable remedy might,
occasionally, be the only
real option.  And so might
recommending litigation or a referral of the matter to the relevant
public authority or any other
suitable recommendation, as the case
might be.  The legal effect of these remedial measures may
simply be that those to whom
they are directed are to consider them
properly, with due regard to their nature, context and language, to
determine what course
to follow.
[70]
It is however inconsistent with the language, context and
purpose of sections 181 and 182 of the Constitution to conclude
that
the Public Protector enjoys the power to make only
recommendations that may be disregarded provided there is a rational
basis for
doing so.
[74]
Every complaint requires a practical or effective remedy that is in
sync with its own peculiarities and merits.  It
needs to be
restated that, it is the nature of the issue under investigation, the
findings made and the particular kind of remedial
action taken, based
on the demands of the time, that would determine the legal effect it
has on the person, body or institution
it is addressed to.
[75]
[71]
In sum, the Public Protector’s power to take appropriate
remedial action is wide but certainly not unfettered.  Moreover,

the remedial action is always open to judicial scrutiny.  It is
also not inflexible in its application, but situational.
What
remedial action to take in a particular case, will be informed by the
subject-matter of investigation and the type of findings
made.
Of cardinal significance about the nature, exercise and legal effect
of the remedial power is the following:
(a) The primary source of the power to take appropriate remedial
action is the supreme law itself, whereas the Public Protector
Act is
but a secondary source;
(b) It is exercisable only against those that she is constitutionally
and statutorily empowered to investigate;
(c) Implicit in the words “take action” is that the
Public Protector is herself empowered to decide on and determine
the
appropriate remedial measure.  And “action”
presupposes, obviously where appropriate, concrete or meaningful

steps.  Nothing in these words suggests that she necessarily has
to leave the exercise of the power to take remedial action
to other
institutions or that it is power that is by its nature of no
consequence;
(d) She has the power to determine the appropriate remedy and
prescribe the manner of its implementation;
[76]
(e) “Appropriate” means nothing less than effective,
suitable, proper or fitting to redress or undo the prejudice,

impropriety, unlawful enrichment or corruption, in a particular case;
(f) Only when it is appropriate and practicable to effectively remedy
or undo the complaint would a legally binding remedial action
be
taken;
(g) Also informed by the appropriateness of the remedial measure to
deal properly with the subject-matter of investigation, and
in line
with the findings made would a non-binding recommendation be made or
measure be taken; and
(h) Whether a particular action taken or measure employed by the
Public Protector in terms of her constitutionally allocated

remedial power is binding or not or what its legal effect is, would
be a matter of interpretation aided by context, nature and
language.
May remedial
action be ignored?
[72]
It has been suggested, initially by both the President and the
National Assembly, that since the Public Protector does not
enjoy the same status as a Judicial Officer, the remedial action she
takes cannot have a binding effect.  The President has
since
changed his position but it appears, only in relation to this case,
not necessarily as a general proposition.  By implication,

whomsoever she takes remedial action against, may justifiably and in
law, disregard that remedy, either out of hand or after own

investigation.  This very much accords with the High Court
decision in
DA v SABC
to the effect that:
“For these reasons I have come to the conclusion that the
findings of the Public Protector are not binding and enforceable.

However, when an organ of state rejects those findings or the
remedial action, that decision itself must not be irrational.”
[77]
It is, of course,
not clear from this conclusion who is supposed to make a judgement
call whether the decision to reject the findings
or remedial action
is itself irrational.  A closer reading of this statement seems
to suggest that it is the person against
whom the remedial action was
made who may reject it by reason of its perceived irrationality.
And that conclusion is not
only worrisome but also at odds with the
rule of law.
[78]
[73]
The judgment of the Supreme Court of Appeal is correct in
recognising that the Public Protector’s remedial action might
at
times have a binding effect.
[79]
When remedial action is binding, compliance is not optional, whatever
reservations the affected party might have about its
fairness,
appropriateness or lawfulness.  For this reason, the remedial
action taken against those under investigation cannot
be ignored
without any legal consequences.
[74]
This is so, because our constitutional order hinges also on
the rule of law.  No decision grounded on the Constitution or
law
may be disregarded without recourse to a court of law.  To
do otherwise would “amount to a licence to self-help”.
[80]
Whether the Public Protector’s decisions amount to
administrative action or not, the disregard for remedial action
by
those adversely affected by it, amounts to taking the law into their
own hands and is illegal.  No binding and constitutionally
or
statutorily sourced decision may be disregarded willy-nilly.  It
has legal consequences and must be complied with or acted
upon.
To achieve the opposite outcome lawfully, an order of court would
have to be obtained.  This was aptly summed
up by Cameron J in
Kirland
as follows:
“The fundamental notion – that official conduct that is
vulnerable to challenge may have legal consequences and may
not be
ignored until properly set aside – springs deeply from the rule
of law.  The courts alone, and not public officials,
are the
arbiters of legality.  As Khampepe J stated in
Welkom
. .
.‘(t)he rule of law obliges an organ of state to use the
correct legal process.’  For a public official to
ignore
irregular administrative action on the basis that it is a nullity
amounts to self-help.  And it invites a vortex of
uncertainty,
unpredictability and irrationality.”
[81]
(Footnotes omitted.)
[75]
The rule of law requires that no power be exercised unless it
is sanctioned by law and no decision or step sanctioned by law may
be
ignored based purely on a contrary view we hold.  It is not open
to any of us to pick and choose which of the otherwise
effectual
consequences of the exercise of constitutional or statutory power
will be disregarded and which given heed to.
Our foundational
value of the rule of law demands of us, as a law-abiding people, to
obey decisions made by those clothed with
the legal authority to make
them or else approach courts of law to set them aside, so we may
validly escape their binding force.
Remedial action
taken against the President
[76]
The remedial action that was taken against the President has a
binding effect.  This flows from the fact that the cattle kraal,

chicken run, swimming pool, visitors’ centre and the
amphitheatre were identified by the Public Protector as non-security

features for which the President had to reimburse the State.  He
was directed to first determine, with the assistance of the
SAPS and
National Treasury, the reasonable costs expended on those
installations and then determine a reasonable percentage of
the costs
so determined, that he is to pay.  The President was required to
provide the National Assembly with his comments
and the actions he
was to take on the Public Protector’s report within 14
days of receipt of that report and to reprimand
the Ministers
involved, for the misappropriation of State resources under their
watch.
[77]
Concrete and specific steps were therefore to be taken by the
President.  Barring the need to ascertain and challenge the
correctness
of the report, it was not really necessary to investigate
whether the specified non-security features were in fact non-security

features.  Features bearing no relationship to the President’s
security had already been identified.  The President
was
enjoined to take definite steps to determine how much he was supposed
to pay for the listed non-security features.  If
any
investigation were to be embarked upon, to determine whether some
installations were non-security in nature, it was to be in
relation
to those additional to the list of five for which some payment was
certainly required.  The reporting to the National Assembly

and the reprimand of the affected Ministers also required no further
investigation.
[78]
This does not mean that there is an absolute bar to what some
see as a “parallel” investigative process regardless of

its intended end-use.  For it cannot be correct that upon
receipt of the Public Protector’s report with its unfavourable

findings and remedial measures, all the President was in law entitled
to do was comply even if he had reason to doubt its correctness.

That mechanical response is irreconcilable with logic and the
rights exercisable by anybody adversely affected by any unpleasant

determination.  The President was, like all of us and for the
reasons set out in some detail earlier,
[82]
entitled to inquire into the correctness of those aspects of the
report he disagreed with.  That inquiry could well lead to
a
conclusion different from that of the Public Protector.
And such a contrary outcome is legally permissible.
The
question would then be how the President responds to the
Public Protector’s report and the remedial action taken,

in the light of other reports sanctioned or commissioned by him.
[79]
Incidentally, the President mandated the Minister of Police to
investigate and report on—
“whether the President is liable for any contribution in
respect of the security upgrades having regard to the legislation,

past practices, culture and findings contained in the respective
reports.”
[80]
The National Assembly also commissioned the Minister’s
report.  The upshot was a finding that elements of the upgrades

identified by the Public Protector as non security
features, were in fact security features for which the President was

not to pay.  Consequently the Minister of Police “exonerated”
the President from the already determined liability.
Although
the remedial action authorised the President’s involvement of
the SAPS and arguably the Minister, it was not for
the purpose of
verifying the correctness of the remedial action taken against him by
the Public Protector.  It was primarily
to help him
determine what other non-security features could be added to the list
of five, and then to assist in the determination
of the reasonable
monetary value of those upgrades in collaboration with
National Treasury.
[83]
But again, the President was at large to commission any suitably
qualified Minister to conduct that investigation into the
correctness
of the Public Protector’s findings.
[81]
The end-results of the two streams of investigative processes
were mutually destructive.  The President should then 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
[84]
should have been approached.  And that is the Judiciary.
[85]
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, on the papers
before us, 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.
[82]
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
the matter was set down for hearing.  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.  Arguably, he
did,
but only with the directive to report to the National Assembly.
[83]
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.
[86]
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).
National
Assembly’s obligation to hold the Executive accountable
[84]
The Public Protector submitted her report, including findings
and the remedial action taken against the President, to the National

Assembly.  For the purpose of this case it matters not whether
it was submitted directly or indirectly through the President.

The reality is that it was at her behest that it reached the
National Assembly for a purpose.  That purpose was to
ensure
that the President is held accountable and his compliance with
the remedial action taken, is enabled.
[85]
The National Assembly’s attitude is that it was not
required to act on or facilitate compliance with the report since the
Public Protector cannot prescribe to it what to do or what not to
do.  For this reason, so it says, it took steps in terms
of
section 42(3)
[87]
of the Constitution after receipt of the report.  Those steps
were intended to ascertain the correctness of the conclusion
reached
and the remedial action taken by the Public Protector, since more was
required of the National Assembly than merely
rubber˗stamp
her report.  Broadly speaking, this is correct because
“scrutinise” means subject to scrutiny.
And
“scrutiny” implies a careful and thorough examination or
a penetrating or searching reflection.  The Public Protector’s

report relates to executive action or conduct that had to be
subjected to scrutiny, so understood.
[86]
Besides, even findings by and an order of a court of law may
themselves be subjected to further interrogation or research, at the

instance of the affected party, that may culminate in the conclusion
that the court was wrong.  But when the conclusion is
reached,
the question is: how then is it acted upon?  This would explain
the reviews of tribunal or Magistrates’ Court
decisions
and appeals from all our courts all the way up to the apex Court.
In principle there is nothing wrong with wondering
whether any
unpleasant finding or outcome is correct and deploying all the
resources at one’s command to test its correctness.
[87]
The National Assembly was indeed entitled to seek to satisfy
itself about the correctness of the Public Protector’s findings

and remedial action before it could hold the President accountable in
terms of its sections 42(3) and 55(2) obligations.
These
sections impose responsibilities so important that the National
Assembly would be failing in its duty if it were to blindly
or
unquestioningly implement every important report that comes its way
from any institution.  Both sections 42(3) and 55(2)
do not
define the strictures within which the National Assembly is to
operate in its endeavour to fulfil its obligations.
It has been
given the leeway to determine how best to carry out its
constitutional mandate.  Additionally, section 182(1)(b)
read
with section 8(2)(b)(iii) does not state how exactly the
National Assembly is to “attend urgently” to or

“intervene” in relation to the Public Protector’s
report.  How to go about this is all left to the
discretion of
the National Assembly but obviously in a way that does not
undermine or trump the mandate of the Public Protector.
[88]
People and bodies with a material interest in a matter have
been routinely allowed by our courts to challenge the constitutional

validity of a law or conduct of the President, constitutional
institutions or Parliament.  The appointment of the National

Director of Public Prosecutions
[88]
is one such example, as is the extension of the term of office of the
Chief Justice,
[89]
the constitutional validity of the proceedings of the Judicial
Service Commission
[90]
and of rules and processes of Parliament.
[91]
The National Assembly and the President were in like manner
entitled to challenge the findings and remedial action of
the
Public Protector.  It would be incorrect to suggest that a
mere investigation by the National Assembly into the findings
of the
Public Protector is impermissible on the basis that it trumps
the findings of the Public Protector.  Rhetorically,
on
what would they then base their decision to challenge the report?
Certainly not an ill-considered viewpoint or a knee-jerk
reaction.
[89]
There is a need to touch on separation of powers.
[90]
The Executive led by the President and Parliament bear very
important responsibilities and each play a crucial role in the
affairs
of our country.  They deserve the space to discharge
their constitutional obligations unimpeded by the Judiciary, save
where
the Constitution otherwise permits.  This accords with the
dictates of Constitutional Principle VI, which is one of the
principles
that guided our Constitution drafting process in these
terms:
“There shall be a separation of powers between the legislature,
the executive and judiciary, with appropriate checks and
balances to
ensure accountability, responsiveness and openness.”
[92]
[91]
And this was elaborated on in the
Certification
case as
follows:
“The principle of separation of powers, on the one hand,
recognises the functional independence of branches of government.
On
the other hand, the principle of checks and balances focuses on the
desirability of ensuring that the constitutional order,
as a
totality, prevents the branches of government from usurping power
from one another. In this sense it anticipates the necessary
or
unavoidable intrusion of one branch on the terrain of another. No
constitutional scheme can reflect a complete separation of
powers:
the scheme is always one of partial separation.”
[93]
[92]
The Judiciary is but one of the three branches of government.
It does not have unlimited powers and must always be sensitive
to the
need to refrain from undue interference with the functional
independence of other branches of government.  It was with
this
in mind that this Court noted:
“Courts must be conscious of the vital limits on judicial
authority and the Constitution’s design to leave certain

matters to other branches of government.  They too must observe
the constitutional limits of their authority.  This means
that
the judiciary should not interfere in the processes of other branches
of government unless to do so is mandated by the Constitution.
But
under our constitutional democracy, the Constitution is the supreme
law. It is binding on all branches of government and no
less on
Parliament.. . .Parliament ‘must act in accordance with, and
within the limits of, the Constitution’,
and the
supremacy of the Constitution requires that ‘the obligations
imposed by it must be fulfilled’.
Courts are
required by the Constitution ‘to ensure that all branches of
government act within the law’ and fulfil their
constitutional
obligations.
This Court ‘has been given the
responsibility of being the ultimate guardian of the Constitution and
its values’.
Section 167(4)(e), in
particular, entrusts this Court with the power to ensure that
Parliament fulfils its constitutional obligations..
. .It would
therefore require clear language of the Constitution to deprive this
Court of its jurisdiction to enforce the Constitution.”
[94]
(Footnotes omitted.)
[93]
It falls outside the parameters of judicial authority to
prescribe to the National Assembly how to scrutinise executive
action,
what mechanisms to establish and which mandate to give them,
for the purpose of holding the Executive accountable and fulfilling

its oversight role of the Executive or organs of State in general.
The mechanics of how to go about fulfilling these constitutional

obligations is a discretionary matter best left to the National
Assembly.  Ours is a much broader and less intrusive role.

And that is to determine whether what the National Assembly did
does in substance and in reality amount to fulfilment of its

constitutional obligations.  That is the sum-total of the
constitutionally permissible judicial enquiry to be embarked upon.

And these are some of the “vital limits on judicial authority
and the Constitution’s design to leave certain matters
to other
branches of government”.
[95]
Courts should not interfere in the processes of other branches of
government unless otherwise authorised by the Constitution.
[96]
It is therefore not for this Court to prescribe to Parliament what
structures or measures to establish or employ respectively
in order
to fulfil responsibilities primarily entrusted to it.  Courts
ought not to blink at the thought of asserting their
authority,
whenever it is constitutionally permissible to do so, irrespective of
the issues or who is involved.  At the same
time, and mindful of
the vital strictures of their powers, they must be on high alert
against impermissible encroachment on the
powers of the other arms of
government.
[94]
That said, the National Assembly chose not to challenge the
Public Protector’s report on the basis of the findings made by

the Minister of Police and its last Ad Hoc Committee.
Instead it purported to effectively set aside her findings
and
remedial action, thus usurping the authority vested only in the
Judiciary.  Having chosen the President to ensure government
by
the people under the Constitution, and the Public Protector Act
which, read with the Constitution, provides for the submission
of the
Public Protector’s report to the National Assembly,
[97]
it had another equally profound obligation to fulfil.  And that
was to scrutinise the President’s conduct as demanded
by
section 42(3) and reported to it by the Public Protector in terms of
section 182(1)(b) of the Constitution read with section
8(2)(b)(i),
(ii) and (iii) of the Public Protector Act.  Section 8(2)
provides in relevant part:
“(b) The Public Protector shall, at any time, submit a report
to the National Assembly on the findings of a particular

investigation if—
(i)
he or she deems it necessary;
(ii)
he or she deems it in the public  interest;
(iii)
it requires the urgent attention of, or an intervention by, the
National Assembly;
(iv)
he or she is requested to do so by the Speaker of the National
Assembly; or
(v)
he or she is requested to do so by the Chairperson of the National
Council of Provinces.”
[95]
The Public Protector could not have submitted her report to
the National Assembly merely because she deemed it necessary or

in the public interest to do so.  In all likelihood she also did
not submit it just because either the Speaker of the National

Assembly or Chairperson of the National Council of Provinces asked
her to do so.  The high importance, sensitivity and potentially

far-reaching implications of the report, considering that the Head of
State and the Head of the Executive is himself implicated,
point but
only to one conclusion.  That report was a high priority matter
that required the urgent attention of or an intervention
by the
National Assembly.
[98]
It ought therefore to have triggered into operation the
National Assembly’s obligation to scrutinise
[99]
and oversee executive action and to hold the President accountable,
as a member of the Executive.
[100]
Also implicated was its obligation to give urgent attention to the
report, its findings and remedial action taken and intervene

appropriately in that matter.
[101]
[96]
Mechanisms that were established by the
National Assembly,
[102]
flowing from the Minister’s report, may have accorded with its
power to scrutinise before it could hold accountable.
As will
appear later, what will always be important is what the National
Assembly does in consequence of those interventions.
The Public
Protector, acting in terms of section 182 of the Constitution read
with sections 1, 3 and 4 of the Executive Members’
Ethics Act,
had already investigated the alleged impropriety or relevant
executive action and concluded, as she was empowered to
do, that the
President be held liable for specific elements of the security
upgrades.
[97]
On a proper construction of its constitutional obligations,
the National Assembly was duty-bound to hold the President
accountable
by facilitating and ensuring compliance with the decision
of the Public Protector.  The exception would be where the
findings
and remedial action are challenged and set aside by a court,
which was of course not done in this case.  Like the President,

the National Assembly may, relying for example on the High Court
decision in
DA v SABC
,
[103]
have been genuinely led to believe that it was entitled to
second-guess the remedial action through its resolution absolving the

President of liability.  But, that still does not affect the
unlawfulness of its preferred course of action.
[98]
Second-guessing the findings and remedial action does not lie
in the mere fact of the exculpatory reports of the Minister of Police

and the last Ad Hoc Committee.
[104]
In principle, there may have been nothing wrong with those “parallel”
processes.  But, there was everything
wrong with the National
Assembly stepping into the shoes of the Public Protector, by
passing a resolution that purported effectively
to nullify the
findings made and remedial action taken by the Public Protector
and replacing them with its own findings and
“remedial
action”.  This, the rule of law is dead against.  It
is another way of taking the law into one’s
hands and thus
constitutes self-help.
[99]
By passing that resolution the National Assembly effectively
flouted its obligations.
[105]
Neither the President nor the National Assembly was entitled to
respond to the binding remedial action taken by the Public
Protector
as if it is of no force or effect or has been set aside through a
proper judicial process.  The ineluctable conclusion
is
therefore, that the National Assembly’s resolution based on the
Minister’s findings exonerating the President from
liability is
inconsistent with the Constitution and unlawful.
Remedy
[100]
All parties, barring the National Assembly and the Minister of
Police, appear to be essentially in agreement on the order that would

ensure compliance with the Public Protector’s remedial
action.  The President’s ultimate draft order, following

on the one circulated eight days before the hearing,
[106]
is virtually on all fours with the remedial action taken by the
Public Protector.  The effect of this draft and the oral
submissions by his counsel is that he accepts that the remedial
action taken against him is binding and that National Treasury

is to determine the reasonable costs, of the non-security upgrades,
on the basis of which to determine a reasonable percentage
of those
costs that he must pay.  The President is also willing to
reprimand the Ministers in line with the remedial action.
In
response to that draft’s predecessor, the Public Protector
only expressed the desire to have the nature and ambit
of her powers
and the legal effect of her remedial action addressed if, as it
turned out, no agreement was secured on the basis
of the President’s
draft order and oral submissions were made.
[101]
The only real disagreement amongst the parties about the draft
order relates to the unqualified binding effect of the Public
Protector’s
remedial action and whether a declaratory order
should be granted to the effect that the President failed to fulfil
his constitutional
obligations in terms of sections 83, 96 and 181(3)
of the Constitution and violated his oath of office.
[107]
Also that the National Assembly breached its constitutional
obligations in terms of sections 55(2) and 182(1)(c) of the
Constitution.  These are the orders cumulatively prayed for by
both the EFF and the DA.
[102]
This Court’s power to decide and make orders in
constitutional matters is set out in section 172 of the Constitution.
Section
172(1):
“When deciding a constitutional matter within its power, a
court—
(a)
must declare that any law or conduct that is inconsistent with the
Constitution is invalid to the extent of its inconsistency;
and
(b)
may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity; and
(ii) an order suspending the declaration of invalidity for any period
and on any conditions, to allow the competent authority to
correct
the defect.”
[103]
Declaring law or conduct inconsistent with the Constitution
and invalid is plainly an obligatory power vested in this Court as
borne
out by the word “must”.  Unlike the
discretionary power to make a declaratory order in terms of
section 38
of the Constitution, this Court has no choice but to
make a declaratory order where section 172(1)(a) applies.
[108]
Section 172(1)(a) impels this Court, to pronounce on the
inconsistency and invalidity of, in this case, the President’s

conduct and that of the National Assembly.  This we do routinely
whenever any law or conduct is held to be inconsistent with
the
Constitution.  It is not reserved for special cases of
constitutional invalidity.  Consistent with this constitutional

injunction, an order will thus be made that the President’s
failure to comply with the remedial action taken against him
by the
Public Protector is inconsistent with his obligations to uphold,
defend and respect the Constitution as the supreme law
of the
Republic;
[109]
to comply with the remedial action taken by the Public
Protector;
[110]
and the duty to assist and protect the office of the Public Protector
to ensure its independence, impartiality, dignity and
effectiveness.
[111]
[104]
Similarly, the failure by the National Assembly to hold the
President accountable by ensuring that he complies with the remedial

action taken against him, is inconsistent with its obligations to
scrutinise and oversee executive action
[112]
and to maintain oversight of the exercise of executive powers by the
President.
[113]
And in particular, to give urgent attention to or intervene by
facilitating his compliance with the remedial action.
[114]
Order
[105]
In the result the following order is made:
1. This Court has exclusive jurisdiction to hear the application by
the Economic Freedom Fighters.
2. The Democratic Alliance’s application for direct access is
granted.
3. 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.
4. 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.
5. 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.
6. The National Treasury must determine a reasonable percentage of
the costs of those measures which ought to be paid personally
by the
President.
7. The National Treasury must report back to this Court on the
outcome of its determination within 60 days of the date of this

order.
8. 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.
9. The President must reprimand the Ministers involved pursuant to
paragraph 11.1.3 of the Public Protector’s remedial action.
10. 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.
11. The President, the Minister of Police and the National Assembly
must pay costs of the applications including the costs of two

counsel.
For the Economic
Freedom Fighters:
W Trengove SC
D Mpofu SC
T Ngcukaitobi
J Mitchell
N Muvangua
Instructed by Godla
and Partners Attorneys
For the Democratic
Alliance:
A Katz SC
J De Waal
J Bleazard
T Mayosi
Instructed by Minde
Schapiro & Smith Inc
For the Speaker of
the National Assembly:
L G Nkosi-Thomas SC
G D Ngcangisa
M Musandiwa
Instructed by the
State Attorney
For the President:
J J Gauntlett SC
K J Kemp SC
M du Plessis
S Mahabeer
S Pudifin-Jones
Instructed by the
State Attorney
For the Minister of
Police:
W R Mokhari SC
H Slingers
M Kgatla
Instructed by the
State Attorney
For the Public
Protector:
G Marcus SC
M Stubbs
Instructed by Adams
& Adams
For Corruption
Watch:
C Steinberg
L Kelly
Instructed by Webber
Wentzel
[1]
Section 1(c) and (d) of the Constitution.
[2]
Nyathi v Member of the Executive Council for the Department of
Health Gauteng and Another
[2008] ZACC 8
[2008] ZACC 8
; ;
2008 (5) SA 94
(CC);
2008 (9) BCLR 865
(CC) at para 80, per Madala J.
[3]
As conferred by section 182 of the Constitution
.
[4]
Section 42(3) of the Constitution and section 55(2) of the
Constitution read with
section 8(2)(b)(iii)
of the
Public Protector
Act 23 of 1994
.
[5]
These are political parties represented in our Parliament.
[6]
Secure in Comfort: Report on an 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
Report No 25 of
2013/14 (Public Protector’s Report) at para 11.
[7]
82 of 1998.
[8]
Chapter 1 of the
Ministerial Handbook: A Handbook for Members of
the Executive and Presiding officers
(7 February 2007) at
pages 7-15.
[9]
Public Protector’s Report above n 6 at paras 7.14.2 and
7.14.4.
[10]
Section 96(2)(c) of the Constitution.
[11]
These are the findings of the Public Protector.
[12]
Section 96(2)(b) of the Constitution.
[13]
Public Protector’s Report above n 6 at para 11.
[14]
See [76] and [77] below.
[15]
The first Ad Hoc Committee was formed to consider the President’s
report along with all other reports (produced by Special

Investigation Unit, Public Protector, Joint Standing Committee on
Intelligence and the Task Team); the last Ad Hoc Committee
was
formed to consider the Minister of Police’s report.
[16]
My Vote Counts NPC v Speaker of the National Assembly and Others
[2015] ZACC 31
;
2016 (1) SA 132
(CC);
2015 (12) BCLR 1407
(CC) (
My
Vote Counts
) at para 24;
Women’s Legal Trust v
President of the Republic of South Africa and Others
[2009] ZACC
20
;
2009 (6) SA 94
(CC) (
Women’s Legal Centre
) at
para 16;
Von Abo v President of the Republic of South Africa
[2009] ZACC 15
;
2009 (5) SA 345
(CC);
2009 (10) BCLR 1052
(CC) (
Von
Abo
) at para 35;
Doctors for Life International v Speaker of
the National Assembly and Others
[2006] ZACC 11
;
2006 (6) SA 416
(CC);
2006 (12) BCLR 1399
(CC) (
Doctors for Life
) at para 19;
and
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1998] ZACC 9
;
1999 (2)
SA 14
(CC);
1999 (2) BCLR 175
(CC) (
SARFU I
) at para 25.
[17]
Doctors for Life
id at para 13.
[18]
Id at para 19.
[19]
Women’s Legal Centre
above n 16 at para 20.
[20]
Doctors for Life
above n 16 at para 25.
[21]
Id.
[22]
Id.  See also section 172(2)(a) of the Constitution.
[23]
Doctors for Life
above n 16 at paras 24-6.
[24]
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4)
SA 147
(CC);
1999 (7) BCLR 725
(CC) (
SARFU II
) at para 72.
Section 167 reads in relevant part:
“(3) The Constitutional Court—
(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to
appeal on the grounds that the matter raises an arguable point
of
law of general public importance which ought to be considered by
that Court, and
(c) makes the final decision whether a matter is within its
jurisdiction.”
These subsections
confirm the status of the Constitutional Court as the highest court
in the land and also extend its jurisdiction
to arguable points of
law of general public importance.
[25]
SARFU II
id at para 73.
[26]
SARFU I
above n 16 at paras 29.
[27]
See section 83(b) of the Constitution.
[28]
Section 83(c) read with the affirmation or oath of office in
Schedule 2 of the Constitution, in context.
[29]
See sections 84-5 of the Constitution.
[30]
Ministers, Judges, Heads of Chapter Nine institutions and Directors
General.
[31]
Section 77 read with section 55 of the Constitution. See also
section 188 of the Constitution read with
section 10
of the
Public Audit Act 25 of 2004
.
[32]
Section 55(2)(b)(i) of the Constitution.
[33]
Section 55(2)(a) of the Constitution.
[34]
Section 167(6) of the Constitution.
[35]
Section 96 bears no relevance to the core issues before this Court.
Admittedly, it is pivotal to the Public Protector’s

finding that although the President was aware of the erection of
non-security upgrades at his private residence, he is not known
to
have done anything to discourage their construction or put an end to
them, considering his fiduciary duty to the State.
This he
arguably allowed to happen in a manner that undermines his
constitutional obligations to ensure that nobody profits unduly
from
State resources.  Needless to say that this is particularly so
for those who, like him, are charged with the duty to
ensure that
State resources are used only, to advance the common good of all
(see
Glenister v President of the Republic of South Africa and
Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC) at para 176).  But this application is not about
determining whether the President and his family benefitted
unlawfully
from non-security installations or upgrades.  That
was for the Public Protector to do and that she has done already.

The focus of this application is on the implementation of the
remedial action taken by the Public Protector.  And section
96
can in no way assist the process meant to secure the President’s
compliance.  It cannot therefore be a justifiable
basis for
conferring exclusive jurisdiction on this Court.
[36]
To suggest that the failure to comply with the remedial action taken
by the Public Protector undermines the promotion of national
unity
and the advancement of the Republic, is a proposition that I find
difficult to understand.  The promotion of national
unity and
the advancement of what is in the best interests of the Republic
have in essence to do with conduct or statements that
could bring
together or unite all our people, to heal the racial divisions of
the past.  And the advancement of the Republic
or its
well-being has a bearing on conduct or a statement that has
wide-ranging implications for the Republic.  The notion
that
the unlawful use of State resources to build a cattle kraal, chicken
run, swimming pool, amphitheatre and a visitors’
centre
constitute a failure to promote national unity or advance the
Republic, is difficult to sustain.  In sum, section
83(c) bears
no relationship, not even remotely, to the matter before us.
[37]
President of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 65
states: “Ultimately the President, as the supreme upholder and
protector of the Constitution, is its servant.
Like all other
organs of state, the President is obliged to obey each and every one
of its commands.”
[38]
Women’s Legal Centre
above n 16 at para 16;
Von Abo
above n 16 at para 33; and
Doctors for Life
above n 16
at para 17.
[39]
Like sections 41, 85, 92, 101, 165(4) and (5), 195, 198(d) and 206.
[40]
Women’s Legal Centre
above n 16 at para 20;
Von Abo
above n 16 at para 34; and
SARFU I
above n 16 at para 25.
[41]
SARFU I
above n 16 at paras 26-31.
[42]
In terms of section 182(1)(c) of the Constitution.
[43]
My Vote Counts
above n 16 at paras 132-5.
[44]
See
Doctors for Life
above n 16 at paras 25-6.
[45]
Id.
[46]
South African Broadcasting Corporation Soc Ltd and Others v
Democratic Alliance and Others
[2015] ZASCA 156
;
[2015] 4 All SA
719
(SCA) (
SABC v DA
) at para 31 and
The Public Protector
v Mail & Guardian Ltd and Others
[2011] ZASCA 108
;
2011 (4)
SA 420
(SCA) at para 5.
[47]
Section 181(1) of the Constitution.
[48]
Section 181(2) of the Constitution.
[49]
Section 181 of the Constitution provides:
“(1) The following state institutions strengthen
constitutional democracy in the Republic:
(a) The Public Protector.
(b) The South African Human Rights Commission.
(c) The Commission for the Promotion and Protection of the Rights of
Cultural, Religious and Linguistic Communities.
(d) The Commission for Gender Equality.
(e) The Auditor-General.
(f) The Electoral Commission.
(2) These institutions are independent, and subject only to the
Constitution and the law, and they must be impartial and must

exercise their powers and perform their functions without fear,
favour or prejudice.
(3) Other organs of state, through legislative and other measures,
must assist and protect these institutions to ensure the
independence, impartiality, dignity and effectiveness of these
institutions.
(4) No person or organ of state may interfere with the functioning
of these institutions.
(5) These institutions are accountable to the National Assembly, and
must report on their activities and the performance of their

functions to the Assembly at least once a year.”
[50]
Section 182 in relevant part provides:
“(1) The Public Protector has the power, as regulated by
national legislation—
(a) to investigate any conduct in state affairs, or in the public
administration in any sphere of government, that is alleged
or
suspected to be improper or to result in any impropriety or
prejudice;
(b) to report on that conduct; and
(c) to take appropriate remedial action.”
[51]
See also
Certification of the Constitution of the Republic of
South Africa, 1996
[1996] ZACC 26
;
1996 (4) SA 744
(CC);
1996 (10) BCLR 1253
(CC) at para 161 (
Certification
case).
[52]
See
Public Protector Amendment Act 113 of 1998
.
[53]
See
section 6(4)(a)(iii)
and (iv) of the
Public Protector Act.
[54
]
See sections 1, 3 and 4 of the Executive Members’ Ethics Act
read with section 96(1) of the Constitution.
[55]
See section 34 of the Constitution.
[56]
Certification
case above n 51 at para 161.
[57]
See for example section 179(3) and (4) of the Constitution.
[58]
This is what the National Assembly argued.
[59]
Amended through Act 47 of
1997, Act 113
of
1998, Act 2
of
2000, Act
22
of 2003 and Act 12 of 2004.
[60]
Some of the incidences of regulation are located in section 6(4).
It regulates the powers of the Public Protector,
including how:
she is to initiate an investigation; remedial action is to be taken
or what form it may take; and information
is to be shared with other
law enforcement authorities to the extent that it may be necessary
to do so.  Section 6(9) regulates
the time-frame within which a
complaint may be validly referred to the Public Protector.
Other elements of regulation are
to be found in section 7.
They relate to: the initiation of investigations; the procedure to
be followed; the exclusion
of some people from the Public
Protector’s investigative proceedings; the right to be heard
and to challenge evidence;
the form in which evidence may be lodged;
and the oath or affirmation and subpoenas.  Section 7A
regulates the entering
of premises by the Public Protector for
the purpose of investigations.  And section 8 regulates the
power to submit
the reports and when to keep them confidential.
[61]
All the powers set out in section 6 accord and are harmoniously
coexistent with section 182.  Powers or functions have thus

either been added or regulated.  Mediation, conciliation,
negotiation and giving advice to a complainant regarding how best
to
secure an appropriate remedy; bringing what appears to be an offence
to the attention of the prosecuting authority; referring
a matter to
an appropriate body or authority or making suitable recommendations
to remedy the complaint; and resolving any complaint
by “any
other means that may be expedient in the circumstances”, are
all regulatory and additional powers.
And they are consistent
with and flow from the constitutional power “to take
appropriate remedial action” and provision
for “additional
powers and functions”.
[62]
See the summarised version of section 6 in n 60 and 61 of this
judgment.
[63]
SABC v DA
above n 46 at para 43.
[64]
Section 195(1)(b) of the Constitution.
[65]
Section 195(1)(a) of the Constitution.
[66]
Section 181(2) of the Constitution.
[67]
Section 181(3) of the Constitution.
[68]
Id.
[69]
Fose v Minister of Safety and Security
[1997] ZACC 6
;
1997
(3) SA 786
(CC);
1997 (7) BCLR 851
(CC) at para 69.
[70]
Section 112(1)(b) of the interim Constitution Act 200 of 1993
(interim Constitution) provided that it was competent for the
Public Protector after investigation:
“To endeavour, in his or her sole discretion, to resolve any
dispute or rectify any act or omission by—
(i) mediation, conciliation or negotiation;
(ii) advising, where necessary, any complainant regarding
appropriate remedies; or
(iii) any other means that may be expedient in the circumstances.”
[71]
Fose
above n 69 at para 69.
[72]
Id.
[73]
See
SABC v DA
note 46 above at para 52.
[74]
Democratic Alliance v South African Broadcasting Corporation
Limited and Others
[2014] ZAWCHC 161
;
2015 (1) SA 551
(WCC) (
DA
v SABC
) at paras 72-4.
[75]
A referral of the possible offence to the National Prosecuting
Authority for possible investigation in terms of
section 6(4)(c)(i)
of the
Public Protector Act might
for example not be acted upon
because it was investigated already.
[76]
SABC v DA
above n 46 at para 52.
[77]
DA v SABC
above n 74 at para 74.
[78]
Pharmaceutical Manufacturers Association of South Africa and
Another: In re Ex Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR
241
(CC) at para 20 and
Fedsure Life Assurance Ltd and Others v
Greater Johannesburg Transitional Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12) BCLR 1458
(CC) at
para 58.
[79]
SABC v DA
above n 46 at para 53.
[80]
MEC for Health, Eastern Cape and Another v Kirland Investments
(Pty) Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC);
2014 (5) BCLR 547
(CC) (
Kirland
) at para 89.
[81]
Id at para 103.
[82]
See [74] to [77] above.
[83]
Again, this must be understood within the context of the President’s
entitlement to challenge the Public Protector’s
report in
a court of law, obviously even after some investigation into the
correctness of the outcome, which could be foundational
to the
challenge.  But we know that a court challenge was never
launched and this is the basis on which the purported reliance
on
the outcome of the Minister’s investigation is approached.
[84]
See section 34 of the Constitution.
[85]
See section 165 of the Constitution.
[86]
See for example the High Court decision in
DA v SABC
above n
74 at paras 73-4 that held that remedial action is not binding and
may be disregarded on rational grounds.
[87]
Section 42(3) of the Constitution reads:
“The National Assembly is elected to represent the people and
to ensure government by the people under the Constitution.
It
does this by choosing the President, by providing a national forum
for public consideration of issues, by passing legislation
and by
scrutinizing and overseeing executive action.”
[88]
Democratic Alliance v President of South Africa and Others
[2012] ZACC 24; 2013 (1) SA 248 (CC); 2012 (12) BCLR 1297 (CC).
[89]
Justice Alliance of South Africa v President of Republic of South
Africa and Others, Freedom Under Law v President of Republic of

South Africa and Others, Centre for Applied Legal Studies and
Another v President of Republic of South Africa and Others
[2011] ZACC 23; 2011 (5) SA 388 (CC); 2011 (10) BCLR 1017 (CC).
[90]
Helen Suzman Foundation v Judicial Service Commission and Others
[2014] ZAWCHC 136; 2015 (2) SA 498 (WCC); [2014] 4 All SA 395 (WCC).
[91]
Mazibuko v Sisulu and Another
[2013] ZACC 28
;
2013 (6) SA 249
(CC);
2013 (11) BCLR 1297
(CC) and
Oriani-Ambrosini, MP v Sisulu,
MP Speaker of the National Assembly
[2012] ZACC 27; 2012 (6) SA
588 (CC); 2013 (1) BCLR 14 (CC).
[92]
See Schedule 4 to the interim Constitution above n 70 and the
Certification
case above n 51 in Annexure 2.
[93]
Certification
case above n 51 at para 109.
[94]
Doctors for Life
above n 16 at paras 37 and 38 in relevant
part.
[95]
Id at para 37.
[96]
Id.
[97]
See sections 42(3) and 55(2) of the Constitution and section
182(1)(b) of the Constitution read with
section 8
of the
Public
Protector Act.
[98
]
Section 8(2)(b)(iii)
of the
Public Protector Act.
[99
]
Section 42(3) of the Constitution.
[100]
Section 55(2) of the Constitution.
[101]
See section 182(1)(b) and (c) of the Constitution read with
section
8(2)(b)(iii)
of the
Public Protector Act.
[102
]
In terms of
section 55(2)
read with section 42(3) of the
Constitution.
[103]
DA v SABC
above n 74.
[104]
This is the last Ad Hoc Committee that was set up to examine the
report of the Minister of Police and make recommendations on
it.
[105]
In terms of sections 42(3), 181(3), 182(1)(c) and 55(2) of the
Constitution read with section 3(5) of the Executive Members’

Ethics Act and section 182(1)(b) of the Constitution and
section (8)(2)(b)(iii) of the
Public Protector Act.
[106
]
The President filed a draft order with the Constitutional Court on
02 February 2016.
[107]
This was mentioned for the first time by the EFF in its response to
the President’s draft order.
[108]
Rail Commuters Action Group v Transnet Ltd t/a Metrorail
[2004]
ZACC 20
;
2005 (2) SA 359
(CC);
2005 (4) BCLR 301
(CC) at paras
106-8.
[109]
Section 83(b) of the Constitution.
[110]
Section 182(1)(c) of the Constitution.
[111]
Section 181(3) of the Constitution.
[112]
Section 42(3) of the Constitution.
[113]
Section 55(2)(a) and (b) of the Constitution.
[114]
Section 8(2)
of the
Public Protector Act.