The constitutional court will have the final say on whether public protector Thuli Madonsela’s findings are binding. However, for now, the supreme court of appeal’s judgment against the SABC this week has set a precedent.
The public broadcaster had ignored Madonsela’s rulings on chief operating officer Hlaudi Motsoeneng, according to constitutional law expert Pierre de Vos. On Thursday, the supreme court of appeal (SCA) ruled her findings could not be ignored and Motsoeneng should be suspended for 60 days while a disciplinary hearing into his alleged malfeasance was conducted.
The SCA said “this watchdog should not be muzzled” and “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”.
De Vos said Madonsela’s powers and whether her findings were binding, including those on the Nkandla upgrades, would be determined by whether the constitutional court agreed with the SCA ruling.
The constitutional court will hear the Economic Freedom Fighter’s (EFF’s) Nkandla case in February on whether President Jacob Zuma should pay back a portion of the money spent on his private Nkandla homestead.
“So, if the assumption is the principle set out in the case is going to be accepted by the constitutional court, then obviously it would mean the way in which the president, minister of police [Nathi Nhleko] and parliament dealt with the Nkandla report was incorrect,” De Vos said.
He said it would mean Zuma would have to pay a portion of money or had “to take the public protector’s report on review”.
However, until the EFF constitutional court case, Madonsela’s findings and remedial actions could not be ignored.
“For the moment, that is the binding law, but the constitutional court will have the final say on the principles set out by the SCA. We will have to see.”
Political parties have supported the ruling with the Democratic Alliance calling for parliament’s two Nkandla reports to be set aside and the Congress of the People celebrating the vindication of Madonsela’s office.
Since Madonsela’s Nkandla report, parliament has convened two ad hoc committees to address the report. Both committees cleared Zuma of any wrongdoing.
DA leader Mmusi Maimane said in light of the SCA’s findings, both reports were invalid.
“Absent a review, Zuma now has no choice but to comply with the remedial actions taken by the public protector.”
Cope spokesperson Dennis Bloem said: “The obsequious and toothless half of parliament will no longer have a role in subverting justice as they did in the case of Nkandla.” — News24