A note of Nkandla, the Public Protector and the President.
Two points immediately come to mind. 1. The implications of the judgment 2. The basis upon which the Court came to its decision and the gravitas with which such basis helps in and does in fact create the law.
- It appears, I would submit, an exaggeration of facts and substance that the judgment brings with it dire consequences in the form of possible impeachment of the President. The political reasons for doing so are for political actors, but in law, I would submit that it is an implausible proposition to make. It is in the nature of Constitutional litigation that the President (or any Minister) or the government is made a party of Constitutional litigation. Much more so in this case where the jurisdiction to pronounce on the conduct of the President is, by Constitutional dictate, made the exclusive jurisdiction of the Constitutional Court. It is therefore inherently conceivable that the Constitutional Court, in the exercise of its Constitutional mandate, may find the (and or a) President to have acted unconstitutionally. It is a conceptual misconception to suggest that, by that reason alone, the (and or a) President must be impeached. To do so would be to collapse the Constitutional, democratic and carefully constructed engagement between the judiciary and the executive. It is what the Constitutional Court must do if they find against the (and or President). Put differently, to suggest that any finding of the Constitutional Court against the (and a) President of necessity will cause the (and or) President to be visited with impeachment is a clearly untenable proposition.
- Secondly, on the rigour of the law, the judgement was visibly lacking. There was and is a glaring lack of engagement with the text of the Public Protector Act. This is the same Court that has repeatedly, consistently and as so soon as the 30th September 2015 in the matter of My Vote Counts v Speaker of the National Assembly & Others said, the principle of subsidiarity requires that, the Court must consider the relevant legislation before the text of the Constitution. In this case the relevant legislation was and is the Public Protector Act. The Court scantly made reference to the Public Protector Act. The Court’s ruling seems based on Constitutional philosophy rather than the express wording of the Public Protector Act read with the Constitution. In that sense, it is more a philosophical judgement, than it is jurisprudentially incontrovertible. It was open to the Constitutional Court to look at the text of the Public Protector Act and declare certain provisions thereof to be unconstitutional for lack of the inclusion of the broader (agreeable) philosophical underpinning which permeated the Court’s judgment. In a word, or phrase, the Constitutional Court came to an agreeable conclusion on inadequate reasoning. No wonder His Lordship Myron Dewrance AJ calls the Constitutional Court Justices “… those clever philosophers in Braamfontein!”
31 March 2016