South African Constitutional Court Orders President to Reimburse State

–James Fowkes, Senior Researcher, Institute for Comparative and International Law in Africa, University of Pretoria

A few days ago on Thursday, March 31, the South African Constitutional Court ordered President Jacob Zuma to reimburse the state personally for non-security improvements to his private residence, in terms of a structural interdict. It also held a National Assembly resolution absolving the President of responsibility to be invalid and found that the National Assembly had failed in its constitutional duty to hold the executive accountable.[1] The decision is headline news across the country, and it has prompted a nationally televised apology from the President.

For comparative lawyers, the decision has several points of interest, but its significance is more subtle than may appear at first glance.

First, what exactly was the case about? Expensive upgrades to the President’s private residence at Nkandla have long been the subject of a public scandal (Main slogan: ‘Pay back the money’). In March 2014, the Public Protector, a constitutionally-created ombudsperson, issued a report finding that these upgrades had wrongly included non-security features, such as a swimming pool and amphitheatre, and that the President should reimburse the Treasury for a reasonable percentage of these costs. The President reported to the National Assembly as the Public Protector’s report had required (he mostly sought to deflect blame downwards), but took no other steps. The National Assembly, in which the President’s party has a 62% majority, set up committees and passed the resolution absolving the President. Both thus purported to side-step the Public Protector’s report. The two biggest opposition parties, the Economic Freedom Fighters and the Democratic Alliance, launched legal challenges.

The Court’s key finding is that the Public Protector’s reports are legally binding. This is not explicit in the Constitution, and the Court deploys a structural argument: it would defeat the purpose of a constitutional watchdog if those to be watched could chose whether or not to get bitten. If the President and the National Assembly disagreed with the report, therefore, they had to approach the courts to set it aside. Their decision to side-step it instead violated, in particular, the President’s special s.83 duty to uphold the Constitution and the National Assembly’s s.55 duty to hold the executive accountable.[2]

But how does the Court get from here to ordering the President to pay back the money – in other words, from a finding that the report should have been handled differently to essentially making the report’s findings an order of the Court?

Most of the terms of the Court’s order are in fact adopted from a draft order circulated by the President’s lawyers (one version circulated eight days before the hearing, with a revised version after it). Thus its apparently very bold provisions – including, most strikingly, that President Zuma personally make his repayment within 45 days once the Treasury has determined the amount and the Court has signed off on it – were proposed by a conceding President.[3]

This made the task much easier. It meant that the Court did not itself have find that the report was justified or right, but could still order a strong remedy compelling compliance with it. It also meant that the Court could do this while recognizing the general constitutional point that the President and Parliament do have some room to challenge reports of the Public Protector and do not have to follow them blindly. In other circumstances, a finding about their powers to question Public Protector reports would have been an red-carpeted invitation to go off and do just that – launching legal proceedings of their own, for instance – thus making it problematically premature to make the report an order of the Court. The President’s stance allowed the Court to finesse this problem too.

Where to from here? For scholars, the decision is an important further datum in some current debates. Several scholars, most prominently Samuel Issacharoff and Sujit Choudhry, have expressed concern that several of the South African Court’s earlier decisions had not showed enough fighting spirit and had failed to erect robust doctrinal barriers against threats to South Africa’s democracy.[4] This decision joins several others in recent years in answering such concerns.

But the case also offers a deeper reply: the familiar paradigm of the lone court defending the constitution against against a dominant party that will do anything to cling on to power is a plausible enough scenario to worry about but remains an imperfect fit for the South African case. The President could have been far more defiant; that he chose not to be joins a long line of choices by ANC leaders, come the crunch, not to challenge the Court’s authority decisively. (President Zuma, on Friday night, offered assurances that he would adhere to the judgment; Gwede Mantashe, ANC Secretary-General, told reporters after the President’s speech that ‘the Constitutional Court’s judgment was testament to the fact that the Constitution remained the anchor of the nation.’)[5]

Apart from President Mandela, however, ANC leaders tend to get little credit for these choices, still less for their regularly more admirable stances that have underpinned many of the Court’s most celebrated decisions since 1995 (or so I have argued in a forthcoming book).[6] Thursday’s decision responds to some very un-admirable conduct, but it still enjoys the benefits of this admirable constitutional politics.

The Court’s self-presentation pays tribute to this. Its politically-sensitive decisions are often diplomatically framed, and this one is especially fulsome in its flattering descriptions of the importance of the President and Parliament.[7] It also leaves open the face-saving possibility that the President had received bad legal advice and had acted in good faith. In an interesting twist, however, the decision is not signed ‘the Court’, the usual practice in unanimous politicized decisions. It announces its author as Chief Justice Mogoeng, whose appointment by President Zuma drew concerns that he was intended to be a weak or deferent choice. If that was the aim, he has disappointed the President before now, but the presence of his name at the top of the judgment is surely not quite a coincidence.

How do the politics of the episode play out from here? On the matter at hand, the President’s stance on the order makes compliance more likely, though previous episodes have seen the tactic of respectfully stringing out legal processes while seeking an extra-judicial way out. There is also the danger – but how to avoid it? – that ordering the President to reimburse the Treasury might drive him further into the hands of wealthy acquaintances with their own agendas.

In broader perspective, no aspect of the case represents a sharp break from the existing lines of South African constitutional politics. It is thus unlikely to itself provoke sharp changes, or backlash. But it may matter for slower ones. The decision is part of a growing judicialisation of the growing troubles of an ANC party that has evinced discomfort (including by initiating a review of the Court’s powers and perhaps making greater use of its effective control over Court appointments) but as yet no firm counter-move.[8] It also shows the Court making headlines and being useful to newer political actors, including the populist and sometimes revolution-talking party the Economic Freedom Fighters whose name will now headline this judgment.

Utility to the powerful and status in the eyes of the public are two classic foundations of judicial status, but how they will play out in South Africa’s gradually shifting system remains to be seen. Whatever happens, however, the Court is positioning itself to be in the middle of it.

Suggested Citation: James Fowkes, South African Constitutional Court Orders President to Reimburse State, Int’l J. Const. L. Blog, Apr. 3, 2016, at: http://www.iconnectblog.com/2016/04/south-african-constitutional-court-orders-president-to-reimburse-state

---

[1] Economic Freedom Fighters v Speaker of the National Assembly; Democratic Alliance v Speaker of the National Assembly [2016] ZACC 11 (31 March 2016), http://www.saflii.org/za/cases/ZACC/2016/11.html

[2] 1996 Constitution, s 83 reads, in relevant part: ‘The President … (b) must uphold, defend and respect the Constitution as the supreme law of the Republic; and (c) promites the unity of the nation and that which will advance the Republic.’ Section 55(2) reads: ‘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.’

[3]  The Court’s order, in full, was as follows:

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.

[4] See esp. Sujit Choudhry, ‘”He had a mandate”: The South African Constitutional Court and the African National Congress in a dominant party democracy’ (2009) 2 Constitutional Court Review 1; Samuel Issacharoff ‘Constitutional Courts and Democratic Hedging’ (2011) 99 Georgetown Law Journal 961; Samuel Issacharoff ‘The Democratic Risk to Social Transitions’ (2013) 5 Constitutional Court Review 1.

[5] Caren du Plessis, ‘Zuma will stay in office – ANC’ Mail & Guardian 1 April 2016

[6] James Fowkes, Building the Constitution: The practice of constitutional interpretation in post-apartheid South Africa (Cambridge University Press, forthcoming 2016).

[7] Theunis Roux has noted (in relation to an earlier period) the sense in which the Court’s as being intended, in a sense, ‘as diplomatic missives of some sort’: Politics of Principle: The First South African Constitutional Court, 1995–2005 (Cambridge University Press, 2013), 130, 383-86.

[8] For further detail on the review process, see Jonathan Klaaren, ‘Transformation of the Judicial System in South Africa, 2012-2013’ (2015) 47 George Washington International Law Review (forthcoming).