This morning the Constitutional Court delivered a judgment in the Nkandla Application. In summary the Court found the following:
o That the recommendations of the Public Protector were binding
o That the binding nature of the Public Protector’s remedial action is determined on a case-by-case basis with regard to the nature of the dispute
o That the Public Protector’s remedial action cannot merely be ignored
o That the National Assembly’s institution of a parallel process was not itself unlawful but that in attempting to replace the binding report of the Public Protector, the National Assembly acted unconstitutionally and in breach of its duty to hold the executive accountable
o That the President should pay back a reasonable portion of the money spent on non-security upgrades and reprimand the responsible ministers for their role in the project.
o That the President acted unlawfully and in breach of his constitutional duties to the Republic
The Jesuit Institute welcomes this balanced and well-reasoned judgment. The judgment remains ever-mindful of the precepts of the separation of powers. It balances the powers and duties of the Public Protector and other Chapter 9 Institutions, the Executive, the Legislature and the Judiciary. This offers new clarity to the relationships these institutions have with each other and the country at large.
In the judgment the Constitutional Court has taken a holistic approach to constitutional interpretation and has read the relevant provisions of the Constitution together. This must be commended.
The judgment shows that in South Africa nobody is above the law – our democracy has institutions that function effectively. This is something that all South Africans can celebrate.
The Jesuit Institute urges that the Court’s orders be taken seriously by all affected. We further hope that this represents a step in the direction of greater accountability and integrity in the Country.