On 31 March 2016, the Constitutional Court of South Africa ruled unanimously in favour of the applicants in the matter regarding Nkandla, President Jacob Zuma’s homestead, as well as the powers of the Public Protector. Andrew Molver, Partner at Adams & Adams, offers his insights into this pivotal ruling.
Q: As attorneys of record for the Public Protector, what role does Adams & Adams play in the functions of her office?
A: The Office of the Public Protector is equipped with a highly skilled staff complement that manages any legal matters it’s faced with. Generally, we’re only instructed upon the anticipation or institution of formal proceedings. In that regard, our primary role has become one of defending the reports issued, findings made and remedial action taken by the Public Protector.
Q: From a personal point of view, what has it been like to work with the former Public Protector, Adv Thuli Madonsela?
A: Working with the Public Protector has been by far the greatest highlight of my career. One of the greatest lessons I’ve learnt from her is how she remained determined to ascertain a proper definition of the Public Protector’s powers throughout the Nkandla debacle. She remained focused on helping the “Gogo Dlaminis” of the world, as she calls them, when she could quite easily have become consumed and distracted by the highly politicised and sensationalised nature of the ordeal. Even in those trying circumstances, she was steadfast in her commitment to the helpless and to leaving a legacy of empowerment to her successors by upholding the powers of her office.
Q: The powers of the Public Protector were challenged well before the Nkandla saga. How did this start?
A: The question of whether or not remedial action taken by the Public Protector is binding first arose in relation to the remedial action taken by the Public Protector in 2014 regarding the SABC and then acting-COO, Hlaudi Motsoeneng. The SABC and related parties argued that they were not bound to give effect to the Public Protector’s remedial action taken and, as they had procured an opinion from an independent law firm which cleared Motsoeneng of any wrongdoing, concluded that the findings of the Public Protector were incorrect.
In proceedings initiated by the DA as a result of the SABC’s conduct, we argued that remedial action taken by the Public Protector is legally binding and places an obligation on the subject of the remedial action to give effect to it unless and until it is reviewed and set aside by a court of law. Regrettably, the High Court did not find favour with this argument and took the view that remedial action by the Public Protector is not binding.
Fortunately, in its judgment of October 2015 in the SABC case, the Supreme Court of Appeal (SCA) set the record straight and found that remedial action taken by the Public Protector is indeed valid and binding until reviewed and set aside by a court of law and that, absent any such review, a subject of such remedial action is obliged to implement it, and cannot disregard it.
Q: Why was the Public Protector never a main applicant in either the Nkandla case or in matters beforehand? How did this help the Public Protector’s standing?
A: The SABC matter was launched by the DA, which cited the Public Protector as a respondent in the matter. The so-called Nkandla applications were launched by the EFF and the DA respectively. While the DA cited the Public Protector as a respondent, the EFF omitted to do so, which required us to apply to the Constitutional Court to intervene as a respondent in the EFF’s application.
We found it preferable for the Public Protector to be in the position of a respondent as this enabled her to abide the relief sought, as opposed to having to seek it directly, as an applicant would. This was more in keeping with the politically neutral position occupied by the Office of the Public Protector and allowed the Public Protector to avoid being drawn into the political war being waged through the litigation. In addition, by not being preoccupied with seeking the enforcement of her remedial action, the Public Protector was able to focus her submissions on obtaining a proper interpretation of her powers, which would significantly outlast any particular remedial action that formed the focus of either the SABC or Nkandla matters.
Q: Your team referred to the “Oudekraal” matter in written submissions. What is this and why was it relevant?
A: “Oudekraal” refers to the well-established principle (deriving from the matter of Oudekraal Estates (Pty) Ltd v City of Cape Town) that until a decision of an administrative nature is set aside by a court in proceedings for judicial review, it exists in fact and has legal consequences that cannot be overlooked. In its judgment in the SABC matter, the SCA found this principle to apply to reports issued and remedial action taken by the Public Protector, even if the Public Protector isn’t a typical public functionary or body, as the underlying principles arguably find greater application in her context.
Q: The Nkandla matter found that the Public Protector was correct in her assessments that the President was required to pay for a portion of the upgrades that took place at his homestead. More importantly, it confirmed the powers of the Public Protector as a Chapter 9 institution. What are those powers?
A: In essence, the Public Protector’s direct constitutional powers enable her to investigate irregular conduct in state affairs or public administration, to report on that conduct and to take appropriate action.
Q: What ideologies or approaches differentiate Adams & Adams from other commercial law firms?
A: We try to approach our admin and constitutional matters by retaining a strong focus on why the matter is important to the client. This isn’t always obvious and often various considerations are involved. For example, in the SABC and Nkandla matters, it would have been tempting to enter the fray by siding with one of the political parties involved and attempting to enforce the remedial action in question. But what made the matters important to the Public Protector went beyond that. As mentioned, a proper definition of the powers of her office held far greater value. Apart from the objective to define the Public Protector’s powers, it was also important that she did not compromise the independence of her office thereafter. We also have a firm commitment to litigating in a manner which we believe upholds the Constitution and ensures that good law is made in its interpretation and application.
ABOUT ADAMS ON AFRICA | ISSUE 1
This article is part of a new quarterly digital publication, Adams on Africa. The publication aims to provide you with the necessary information and updates on developments in business and the law in Africa. We welcome your feedback. Articles in this issue: