Watchdog should not be muzzled – EFF

SCA ruling gives hope South Africans will get back Nkandla money, say Fighters


8 October 2015

The Economic Freedom Fighters welcomes the judgment of the Supreme Court of Appeal (SCA) as it relates to the powers of the Public Protector and the status of its remedial action. In paragraphs 52 of the ruling, it says,

“The Public Protector cannot realise the constitutional purpose of her office if other organs of State may second-guess her findings and ignore her recommendations. Section 182(1)(c) must accordingly be taken to mean what it says. The Public Protector may take remedial action herself. She may determine the remedy and direct its implementation. It follows that the language, history and purpose of s 182(1)(c) make it clear that the Constitution intends for the Public Protector to have the power to provide an effective remedy for State misconduct, which includes the power to determine the remedy and direct its implementation. All counsel before us rightly accepted that the Public Protector‘s report, findings and remedial measures could not be ignored.”

Paragraph 53 of the ruling adds and says, “To sum up, the office of the Public Protector, like all Chapter Nine institutions, is a venerable one. Our constitutional compact demands that remedial action taken by the Public Protector should not be ignored. State institutions are obliged to heed the principles of co-operative governance as prescribed by s 41 of the Constitution. Any affected person or institution aggrieved by a finding, decision or action taken by the Public Protector might, in appropriate circumstances, challenge that by way of a review application. Absent a review application, however, such person is not entitled to simply ignore the findings, decision or remedial action taken by the Public Protector. Moreover, an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings, decision or remedial action taken by the Public Protector. A mere power of recommendation of the kind suggested by the High Court appears to be more consistent with the language of the Interim Constitution and is neither fitting nor effective, denudes the office of the Public Protector of any meaningful content, and defeats its purpose. The effect of the High Court‘s judgment is that, if the organ of State or State official concerned simply ignores the Public Protector‘s remedial measures, it would fall to a private litigant or the Public Protector herself to institute court proceedings to vindicate her office. Before us, all the parties were agreed that a useful metaphor for the Public Protector was that of a watchdog. As is evident from what is set out above, this watchdog should not be muzzled.”

These findings exonerates the Economic Freedom Fighters’ position on the report of the Public Protector concerning the illegal construction of Mr. Jacob Zuma’s private residence in Nkandla. In our concerted call that Mr. Zuma must pay back the money, the ruling party and all opposition parties engaged in unnecessary, illegal and costly exercise of re-investigating the Nkandla case, while the remedial actions of the Public Protector were not complied with.

The EFF became the only principled political organisation, which refused to engage in what were patently illegal activities of ignoring the remedial actions, and visits to the private residence for narrow political purposes. The SCA judgment is an important milestone in South Africa’s constitutional democracy and will certainly form part of the arguments we will present to the Constitutional Court on the 9th of February 2016. The SCA judgment is giving hope that the people of South Africa will receive back the money used to construct Mr. Zuma’s residence because there is solid legal basis that Mr. Zuma must pay back the money.

The EFF will continue to fight corruption and gross maladministration of the ANC government, and will never be intimidated by anyone. Baleka Mbete already employed bouncers to prevent the EFF Members of Parliament from holding the executive accountable, and we are not intimidated. We will fight on until the ruling party is removed from power.

Statement issued by Mbuyiseni Quintin Ndlozi, national spokesperson, Economic Freedom Fighters, 8 October 2015