Legalbrief | your legal news hub Thursday 30 September 2021

Madonsela banking on ConCourt to confirm her powers

The war of words over Public Protector Thuli Madonsela's powers and the status of her findings continued this week, writes Legalbrief.

At issue is whether her findings are legally binding. A BDlive report notes Madonsela has said it should be up to the Constitutional Court to determine whether the 1996 Constitution changed her office's powers, after months of heated debate over whether her findings are legally binding on state organs and office-bearers. The report notes that Madonsela has long maintained that the recommendations in her reports are legally binding, but last week's Western Cape High Court (Cape Town) case on SABC chief operating officer, Hlaudi Motsoeneng, put this in doubt. Last Friday, states the report, Judge Ashton Schippers ruled that Motsoeneng should be immediately suspended and subjected to a disciplinary hearing, after an investigation by Madonsela found that he had misrepresented his qualifications to the broadcaster and inflated his salary from R1.5m to R2.4m within a year. The report notes Motsoeneng has appealed against the ruling and Madonsela is taking the ruling on review, regarding Schippers' view that her findings are 'not binding on persons or organs of state'. Full BDlive report

Madonsela hopes the Constitutional Court will clarify her office's role and how it differs from that of the Advocate-General under the apartheid government, according to a Beeld report. Madonsela noted she has been saying all along that her recommendations can only be ignored if they are irrational. 'What I must take further is the issue about who must decide that my decision is irrational. I understand from the court judgment that the same person against whom I made a finding must decide whether I'm irrational.' This was the position with the Advocate-General, she added. 'The Constitutional Court must now decide whether the Constitution of 1996 has amended the powers of the Public Protector in any way or whether they remained the same as those under the Advocate-General legislation despite the dialogue that preceded the amendment to the Constitution.' The report says Professor Pierre de Vos agreed that the Constitutional Court should make the final decision on Madonsela's powers, noting '(The High Court judgment) may have more teeth than most people think.' But Professor Marinus Wiechers claims Madonsela cannot demand implementation of her recommendations in terms of legislation. Wiechers believes the Constitutional Court is likely to come to the same conclusion as the High Court. Full Beeld report (subscription needed)

Clarity on the powers of the Public Protector is important as it has a bearing on Madonsela's report on the R246m upgrade at President Jacob Zuma's private Nkandla homestead. It was inevitable, given the stakes involved in the Nkandla scandal, that interpretations of Schippers' ruling on the powers of the Public Protector would vary, notes a Business Day editorial. It says 'since the Nkandla issue was always headed for adjudication by the higher courts - that is President Jacob Zuma's preferred delaying tactic when things don't go his way - it is all to the good that Public Protector Thuli Madonsela has opted to take the decision on review'. The main need, notes the editorial, is for clarity, whether the SCA and the Constitutional Court uphold, overturn or expand upon Schippers' reasoning. 'Progress has already been made through his provision of guidelines on how reports of the Public Protector should be treated, but while the decision in this case supported Madonsela's recommendation that SABC chief operating officer Hlaudi Motsoeneng be disciplined for fraudulently misrepresenting his qualifications, the extent of the Public Protector's powers in other contexts has yet to be defined.' A report on the News24 site notes Madonsela has not had a response from Zuma to a letter her office sent him more than a month ago, her office said yesterday (Wednesday). Acting spokeperson Oupa Segalwe said Madonsela had decided to leave the matter to Parliament. Full Business Day editorial (subscription needed) Full report on the News24 site

The Western Cape High Court (Cape Town) ruling made Zuma's stance on Nkandla less secure, notes Legalbrief. What Schippers' ruling means for Zuma is that should he decide not to comply with the Public Protector's finding that he should pay back some of the millions spent on Nkandla, he will have to provide cogent reasons for doing so, failing which he may face a legal challenge such as that which on Friday went against Motsoeneng. The judge ruled that since any decision not to comply with the Public Protector's finding was an exercise of public power, it had to meet the test of rationality which was the 'minimum threshold requirement' applying to this power. And he added: 'That the findings were not binding did not mean 'that these findings and remedial action are mere recommendations, which an organ of state may accept or reject'. According to a Sunday Times report, Professor Pierre de Vos, a constitutional law expert at UCT, interprets the judgment to mean any decision not to comply with the recommendations of the Public Protector can be challenged in court on the grounds of rationality. De Vos reportedly said the ruling meant Parliament's Nkandla ad hoc committee needed to protect the interests of Zuma by asking him to submit a rational explanation why he should not comply with Madonsela's recommendation that he repay a reasonable portion of the R246m spent on upgrades at his private home. 'Failure to do so will lead to a court (hearing) in which his actions would be found to be unconstitutional, and as we've seen in the SABC case, it might take a court to order him to implement the recommendation,' De Vos is quoted as saying. Full Sunday Times report (subscription needed) See also De Vos' analysis on the Daily Maverick site Democratic Alliance v The South African Broadcasting Corporation Limited and 8 others (12497/2014)