Accountability of the Executive

2016 SCMR 1040 CONSTITUTIONAL-COURT-OF-SOUTH-AFRICA Judicial Precedent

Ss. 42(3), 55(2), 83, 84, 181 & 182Public Protector Act (23 of 1994), S. 8(2)Accountability of the ExecutiveMisuse of state fundsPrivate residence of the President

Use of state funds to make renovations and improvements to the private residence of the President under the pretext of security upgrades

Constitutionality and legality

Office of the Public Protector (an independent Constitutional institution) found that the "security upgrades" were no more than luxurious improvements, and that the President should repay the amounts expended on "unlawful" upgrades

President and National Assembly (Parliament) failed to take the remedial action recommended by the Public Protector

National Assembly passed a resolution to exonerate the President from any liability

Held, that such conduct of the President and the National Assembly was inconsistent with their constitutional obligations, and hence constituted breach of the Constitution

Remedial action taken by the Public Protector was binding

By failing to comply with the Public Protector's order the President failed to uphold, defend and respect the Constitution

Power of the Public Protector to take appropriate remedial action had legal effect and was binding, therefore, neither the President nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect, unless it had been set aside through a proper judicial process

National Assembly's resolution, based on the findings of Minister of Police, exonerating the President from liability, was inconsistent with the Constitution and unlawful

Constitutional Court (apex court) ordered that President must pay for the non-security measures at his private residence and should reprimand the Ministers involved in the expenditure; that the resolution passed by the National Assembly absolving the President from liability was invalid and accordingly set aside, and that the President, Minister of Police, and the National Assembly should pay the present applicants' costs, including those of the counsel.