The constitutional principle of accountability : a study of contemporary South African case law

• Author: Chuks Okpaluba
• Pages: 1-39
• Date: 01 October 2018
• DOI: 10.10520/EJC-116dae5050
• Record Number: sapr1_v33_n1_a3
• Published date: 01 October 2018

Article

Southern African Public Law

https://doi.org/10.25159/2522-68 00/2955

https://upjournals.co.za/index.php/SAPL

ISSN 2522-6800 (Online)

Volume 33 | Number 1 | 2018 | #2955 | 39 pages

© Unisa Press 2018

The Constitutional Principle of Accountability: A Study

of Contemporary South African Case Law*

Chuks Okpaluba

Adjunct Professor of Law

University of Fort Hare

Email: okpaluba@mweb.co.za

Abstract

‘Accountability’ is one of the democratic values entrenched in the Constitution

of South Africa, 1996. It is a value recognised throughout the Constitution and

imposed upon the law-making organs of state, the Executive, the Judiciary and

all public functionaries. This constitutional imperative is given pride of place

among the other founding values: equality before the law, the rule of law and

the supremacy of the Constitution. This study therefore sets out to investigate

how the courts have grappled with the interpretation and application of the

principle of accountability, the starting point being the relationship between

accountability and judicial review. Therefore, in the exercise of its judicial

review power, a court may enquire whether the failure of a public functionary

to comply with a constitutional duty of accountability renders the decision made

illegal, irrational or unreasonable. One of the many facets of the principle of

accountability upon which this article dwells is to ascertain how the courts have

deployed that expression in making the state and its agencies liable for the

delictual wrongs committed against an individual in vindication of a breach of

the individual’s constitutional right in the course of performing a public duty.

Here, accountability and breach of public duty; the liability of the state for

detaining illegal immigrants contrary to the prescripts of the law; the vicarious

liability of the state for the criminal acts of the police and other law-enforcement

officers (as in police rape cases and misuse of official firearms by police

officers), and the liability of the state for delictual conduct in the context of

public procurement are discussed. Having carefully analysed the available case

law, this article concludes that no public functionary can brush aside the duty of

accountability wherever it is imposed without being in breach of a vital

constitutional mandate. Further, it is the constitutional duty of the courts, when

called upon, to declare such act or conduct an infringement of the Constitution.

2

Keywords: public accountability, judicial review; rule of law; Constitution; state

liability for acts of servants

Introduction

The term ‘accountability’ in the constitutional context is not simply a political jargon or

a moral wish. It carries with it moral obligations, political responsibilities and a wide-

ranging array of legal implications.1 In contemporary South Africa, alongside the

supremacy of the Constitution and the rule of law, accountability is one of the founding

constitutional values;2 it is therefore a constitutional principle of great importance. As

Mogoeng CJ recently put it, accountability stands, along with constitutionalism and the

rule of law to ‘constitute the sharp and mighty sword’ ever ‘ready to chop the ugly head

of impunity off its stiffened neck’.3 It is a signpost for good governance and fundamental

to that democratic state envisaged by the founders of the 1996 Constitution of South

Africa. For, apart from the protection afforded the individual by the rights entrenched

in the Bill of Rights as the cornerstone of South Africa’s democracy—which, in turn,

imposes duties and responsibilities on the state4—there is the additional burden placed

upon the government to account for the duties and responsibilities entrusted to it by the

Constitution and ‘we the people of South Africa’.5 Accountability as an obligation

imposed on all holders of public office is entrenched in so many words and in different

parts of the 1996 Constitution.

For instance, accountability, responsiveness and openness form part of the founding

provisions of a system of democratic government in section 1(d) of the Constitution.

Similarly, it is a fundamental principle of co-operative governance and

intergovernmental relations that each of the three spheres of government must provide

effective, transparent, accountable and coherent government for the benefit of the

country as a whole.6 In terms of section 55(2)(a) and (b), the National Assembly must

* A shorter version of this article was delivered at the conference on ‘20 Years of the South African

Constitution: Looking Back and Thinking Forward’ held at Unisa, 14–15 March 2015.

1 For instance, Madala J said in Nyathi v MEC, Department of Health, Gauteng 2008 (6) SA 94 (CC)

para 80 that: ‘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 crisi s of great magnitude. In a State predicated on a desire to maint ain

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 Section 1(c) and (d), Constitution, 1996.

3 Per Mogoeng CJ in EFF v Speaker, National Assembly; DA v Speaker, National Assembly 2016 (3)

SA 580 (CC) para 1.

4 Section 7(1) and (2), Constitution, 1996.

5 See the opening sentence of the Preamble, Constitution, 1996.

6 Section 41(1)(c), Constitution, 1996.

3

provide for mechanisms to ensure that all executive organs of state in the national sphere

are accountable to it; it must also maintain oversight of: (i) the exercise of national

executive authority, including the implementation of legislation, and (ii) any organ of

state.7 Again, section 92(2) and (3)(a) and (b), which deals with the accountability and

responsibilities of the deputy president and the cabinet, provides that members of the

cabinet are accountable collectively and individually to parliament for the exercise of

their powers and the performance of their functions. Not only must the members of the

cabinet act in accordance with the Constitution; they must also provide parliament with

full and regular reports concerning matters under their control. Furthermore, one of the

nine fundamental values and principles of good public administration set to govern the

South African democracy is that ‘public administration must be accountable’.8 Public

accountability therefore literally features in every facet of governmental activity.

Scope of the Investigation

The scope of the subject of this investigation is indeed very wide, since an enquiry into

how the courts have grappled with the interpretation and application of the principle of

accountability has several constitutional as well as jurisprudential ramifications. Firstly,

there is the relationship between judicial review and accountability. This is because a

court, in the exercise of its function of interpreting and applying the Constitution, is

obliged to give guidance as to what accountability means or represents in any particular

context. Secondly, if accountability is tantamount to liability as one of its offshoots,

then how the courts have deployed that expression in making the state, the public

authority or their agents compensate the injured citizen for their transgressions which

have caused the individual harm should be interrogated.

Thirdly, there is the intersection between public accountability, corruption and

maladministration. Public accountability reassures the citizenry of the government’s

protection of their rights and personal security; it is, therefore, the antithesis of

corruption. Public accountability requires that persons in position of authority take

responsibility for their conduct even if the action or decision taken turns out to be wrong

or unlawful. In constitutional democracies such as South Africa’s, public administrators

and state institutions in every sphere of government, organs of state and public

enterprises are guardians of the members of the public. Bearing in mind the apparent

weaknesses of the human being, the founders of the Constitution thought it wise to

establish such offices as that of the Public Protector ostensibly to keep a watchful eye

7 See also s 114(2)(a) and (b), Constitution, 1996 in respect of the oversight powers of the provincial

legislatures vis-à-vis the provincial executive.

8 Section 195(1)(f), Constitution, 1996.