Economic Freedom Fighters v Speaker, National Assembly and Others

• Jurisdiction: South Africa
• Judge: Mogoeng CJ, Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J
• Judgment Date: 31 March 2016
• Citation: 2016 (3) SA 580 (CC)
• Docket Number: 143/15 [2016] ZACC 11
• Hearing Date: 09 February 2016
• Counsel: W Trengove SC (with D Mpofu SC, T Ngcukaitobi, J Mitchell and N Muvangua) for the Economic Freedom Fighters. Anton Katz SC (with J de Waal, J Bleazard and T Mayosi) for the Democratic Alliance. LG Nkosi-Thomas SC (with GD Ngcangisa and M Musandiwa) for the Speaker of the National Assembly. JJ Gauntlett SC (with KJ Kemp SC, M du Plessis, S Mahabeer and S Pudifin-Jones) for the President. WR Mokhari SC (with H Slingers and M Kgatla) for the Minister of Police. G Marcus SC (with M Stubbs) for the Public Protector. C Steinberg (with L Kelly) for Corruption Watch.
• Court: Constitutional Court

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, I 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 J

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

A 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 B 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 C 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]

D 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 E 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, F 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, G 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] H against the National Assembly and the President.

[4] What these applications are really about is that —

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

(a)

based on the supremacy of our Constitution, the rule of law and A 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 B 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 ss 83, 96, 181 and 182;

(d)

the report of the Minister of Police and the resolution of the C 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 amounts to a failure by the National Assembly to fulfil its constitutional obligations, in terms of ss 55 and 181, to hold the President accountable to ensure the effectiveness, rather than subversion, of the Public Protector's findings and remedial action; D

(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 E

[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. F

[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 G 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 ss 96(1), 96(2)(b) and (c) of the Constitution, which provide: H

'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 —

. . . I

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

(b)

A 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.'

B 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 s 96(1).

[8] The Public Protector's finding on the violation of s 96 was based on C 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 D 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 E 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 F 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 G 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 s 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 H were unduly enriched as a result of the non-security features, the Public Protector took remedial action against him in terms of s 182(1)(c) of the Constitution. The remedial action taken reads:

Mogoeng CJ (Moseneke DCJ, Bosielo AJ, Cameron J, Froneman J, Jafta J, Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J concurring)

'11.1

The President is to: A

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. B

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 C 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 D to the National Assembly within 14 days of...