My office has been ‘severely compromised’ and my authority ‘denuded’, Thuli tells ConCourt

2015-09-29 18:20
Thuli Madonsela (Lerato Maduna, Netwerk24)

Thuli Madonsela (Lerato Maduna, Netwerk24)

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A high court judgment that the Public Protector’s findings were not binding had “severely compromised” the office of Thuli Madonsela. 

The practical implications of Judge Ashton Schippers’s ruling – which to date is the prevailing law on the issue – had been that the Public Protector had been “denuded” of the authority conferred on her in the Constitution. 

This is the argument that Madonsela has submitted in her application to the Constitutional Court to be admitted as a respondent or a friend of the court in the Nkandla crunch case lodged by the Economic Freedom Fighters against Parliament and President Jacob Zuma. 

In the SABC case involving chief operating officer Hlaudi Motsoeneng, Western Cape High Court Judge Schippers ruled last October that the Public Protector’s findings and remedial action were not binding and enforceable. However, he said that a “rational basis” needed to be presented before her finding could be rejected. 

But in her founding affidavit to the Constitutional Court this week, Madonsela argues that her findings and any remedial action that she took needed to be regarded as both binding and of legal effect until successfully challenged in a court of law. In terms of the Constitution, her office was independent and “subject only to the Constitution and the law”. 

The Schippers judgment had thus “severely compromised” the functioning of her office “borne out of my personal experience” in the following ways: 

» It had resulted in a trend among politicians and organs of state against whom findings have been made to simply disregard reports issued and remedial action taken; 

» It is increasingly regarded as a waste of time to lodge a complaint because there is a belief that her findings are not binding; and 

» The capacity to reject her findings by advancing a rational basis to do so can easily be achieved. “This is because the requirement of rationality poses a threshold which is very low and relatively easy to meet.” 

She warned that the high court’s interpretation of her powers would render her office “ineffective as a constitutional bulwark against government malfeasance”. 

Saying that it was important to finally get clarity on the issue, she said a decision from the Constitutional Court would have a “profound effect on the manner in which I exercise my powers in all future matters”. 

The EFF argues that both Parliament and Zuma have failed in their constitutional duties by disregarding Madonsela’s findings. The Democratic Alliance, which is at the centre of the SABC case, has also applied to be granted access to the court. A date has been set for February 9. 

The powers of the Public Protector are the central issue regarding whether Zuma is obligated to pay back a portion of the R246 million spent on upgrades to his private homestead at Nkandla. The controversy has raged for 18 months since Madonsela released her Secure in Comfort report in which she found that Zuma “unduly benefited” and should pay back a “reasonable percentage of the cost” as determined by the treasury.

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