MEDIA STATEMENT

STATEMENT BY PRESIDING OFFICERS DELIVERED BY SPEAKER OF THE NATIONAL

ASSEMBLY,
MS
BALEKA
MBETE,
ADDRESSING
THE
MEDIA
ON
THE
CONSTITUTIONAL COURT RULING
A. INTRODUCTION
The Constitutional Court, on Thursday, delivered a unanimous judgment in the matter relating to
compliance with remedial action set out in a report of the Public Protector. I have taken the time to
study the judgment and this statement represents my preliminary observations.
The judgment makes sound, balanced and critical findings. In an important way, these are major
and most welcomed lessons that will serve to guide our processes and approach in handling
reports of chapter nine institutions in future.
There is now legal certainty on this matter.
One thing is certain - our democracy is alive and well.
With the benefit of the judgment, there are certain matters which could have been handled
differently. I am certain that the National Assembly and all its Committees will use this judgment to
guide the relevant processes in future.
We cannot over emphasise the fact that the Constitution is the foundation of our society. The
Constitutional Court on the other hand is guardian of our Constitution. We appreciate the clarity
provided by the Court on all the matters which it dealt with.
B. CONSIDERATION OF THE REPORTS
Following complaints lodged with the office of the Public Protector concerning aspects of the
security upgrades at the Presidents Nkandla private residence an investigation was conducted by
that office.
The Public Protector released a report on her findings. The President was required to report to the
National Assembly on his comments and actions on the Report within 14 days.
Upon receipt of the Presidents report, the National Assembly of the Fourth Parliament set up an
Ad Hoc Committee to examine the Presidents submission on the report of the Public Protector.
This Ad Hoc Committee could not complete its task due to general elections in 2014. Shortly after
the resumption of the Fifth Parliament another Ad Hoc Committee was established to look into the
matter. This Ad Hoc committee considered inter alia the Presidents response and report from the
Special Investigative Unit.
On 24 October 2014, whilst the Ad Hoc Committee was still seized with the Presidents response,
the Western Cape Division of the High Court rendered its judgment in the case of the Democratic
Alliance v South African Broadcasting Corporation SOC Limited and Others 2015 (1) SA 551

(WCC). In that judgment Schippers J said the following with regard to the status of the report of the
Public Protector:
.... unlike an order or decision of a court, a finding by the Public Protector is not binding on
persons and organs of state. If it was intended that the findings of the Public Protector
should be binding and enforceable, the Constitution would have said so. Instead, the
power to take remedial action in s 182(1)(c) of the Constitution is inextricably linked to the
Public Protectors investigatory powers in s 182(1)(a). Having regard to the plain wording
and context of s 182(1), the power to take appropriate remedial action, in my view, means
no more than that the Public Protector may take steps to redress improper or prejudicial
conduct. But that is not to say that the findings of the Public Protector are binding and
enforceable, or that the institution is ineffective without such powers.
The report of the second Ad Hoc Committee was adopted by the National Assembly in November
2014. This report required certain tasks to be done by the Executive.
In 2015, the Minister of Police responded on behalf of the Executive by submitting a report to the
National Assembly. The National Assembly decided to establish an Ad Hoc Committee to consider
this report and make recommendations. The report of this Ad Hoc Committee was adopted on 18
August 2015.
On 8 October 2015 the Supreme Court of Appeal (SCA) delivered its judgment in the case South
African Broadcasting Corporation SOC Limited and Others v Democratic Alliance and Others
[2015] 4 All SA 719 SCA. The Court found that, unless challenged in a court of law, the remedial
actions of the Public Protector remain valid and enforceable.
Later, the Economic Freedom Fighters and the Democratic Alliance approached the Constitutional
Court regarding the matter of the Public Protectors Report.
C. AFFIRMATION OF POWERS OF THE NATIONAL ASSEMBLY
Indeed, the Constitutional Court has affirmed the National Assemblys powers and oversight
responsibilities. To illustrate this point, I wish to quote the following aspects of the judgment:
In principle there is nothing wrong with wondering whether any unpleasant finding or
outcome is correct and deploying all the resources at ones command to test its
correctness. The National Assembly was indeed entitled to seek to satisfy itself about the
correctness of the Public Protectors findings and remedial action before it could hold the
President accountable in terms of its sections 42(3) and 55(2) obligations. These sections
impose responsibilities so important that the National Assembly would be failing in its duty if
it were to blindly or unquestioningly implement every important report that comes its way
from any institution. Both sections 42(3) and 55(2) do not define the strictures within which
the National Assembly is to operate in its endeavour to fulfil its obligations. It has been
given the leeway to determine how best to carry out its constitutional mandate. Additionally,
section 182(1)(b) read with section 8(2)(b)(iii) does not state how exactly the National
Assembly is to attend urgently to or intervene in relation to the Public Protectors report.

It would be incorrect to suggest that a mere investigation by the National Assembly into the
findings of the Public Protector is impermissible on the basis that it trumps the findings of
the Public Protector. Rhetorically, on what would they then base their decision to challenge
the report? Certainly not an ill-considered viewpoint or a knee-jerk reaction.
In commenting on the doctrine of separation of powers and clarifying the nature of its order, the
Constitutional Court had this to say:
It falls outside the parameters of judicial authority to prescribe to the National
Assembly how to scrutinise executive action, what mechanisms to establish and which
mandate to give them, for the purpose of holding the Executive accountable and
fulfilling its oversight role of the Executive or organs of State in general. The
mechanics of how to go about fulfilling these constitutional obligations is a
discretionary matter best left to the National Assembly.
Declaring law or conduct inconsistent with the Constitution and invalid is plainly an
obligatory power vested in this Court as borne out by the word must. Unlike the
discretionary power to make a declaratory order in terms of section 38 of the Constitution,
this Court has no choice but to make a declaratory order where section 172(1)(a) applies.
Section 172(1)(a) impels this Court, to pronounce on the inconsistency and invalidity of, in
this case, the Presidents conduct and that of the National Assembly. This we do routinely
whenever any law or conduct is held to be inconsistent with the Constitution. It is not
reserved for special cases of constitutional invalidity.
Indeed, in the law reports there are cases where either a decision of the President or Executive
and Parliament has been found to have been inconsistent with the law including the Constitution.
We think that this affirmation of the powers and functions of the National Assembly and the
clarification provided on the role of the Constitutional Court in terms of section 172 bodes well for
democracy, and should not be missed in the discourse around this matter.
D. AREAS NEEDING CONSIDERATION
As we all know the judgment has been critical of certain actions of the National Assembly.
The court found that it was not correct for the National Assembly to pass a resolution that
purported effectively to nullify the findings made and remedial action taken by the Public Protector
and replacing them with its own findings and remedial action. It stated, on a proper construction
of its constitutional obligations, the National Assembly was duty-bound to hold the President
accountable by facilitating and ensuring compliance with the decision of the Public Protector. The
exception would be where the findings and remedial action are challenged and set aside by a
court, which was of course not done in this case.
Therefore, the Constitutional Court found that the resolution passed by the National Assembly
absolving the President from compliance with the remedial action taken by the Public Protector in
terms of section 182(1)(c) of the Constitution was inconsistent with sections 42(3), 55(2)(a) and (b)
and 181(3) of the Constitution, was invalid and was set aside.

E. CONCLUSION
Indeed, the Constitution is the foundation of our society. The Constitutional Court is the guardian of
our Constitution.
As stated before, the National Assembly and broadly Parliament respects the judgment. The
judgment does provide guidance in terms of how the reports of the Public Protector and generally
Chapter Nine Institutions should be dealt with. This guidance is appreciated.
All parties need to collectively reflect on the judgment. In this regard I will be asking leaders of
political parties in Parliament for a meeting to discuss the judgment. We need to see how the
judgment could be used to improve our mechanisms.
There has already been a request for a debate on the implications of this judgment for the National
Assembly. There is also a proposal from one of the parties (IFP) for a multi-party committee to look
into the matter.
As we know the National Assembly will on Tuesday, 5 April, consider a motion by the Democratic
Alliance for the removal of the President in terms of section 89 of the Constitution.

ISSUED BY PARLIAMENTARY COMMUNICATION SERVICES