Nkandla what
Several South Africans, including a Member of Parliament, lodged complaints
with the Public Protector concerning aspects of the security upgrades that were being
effected at the President’s Nkandla private residence. This triggered a fairly extensive
investigation by the Public Protector into the Nkandla project.
The Public Protector concluded that several improvements were non-security
features.
Since the State was in this instance under an obligation only to provide
security for the President at his private residence, any installation that had nothing to
do with the President’s security amounted to undue benefit or unlawful enrichment to
him and his family and was to be therefore be paid for by him.
The President has the duty to ensure that State
resources are used only for the advancement of State interests.
Risk of a conflict between official Responsibilities and Private Interests
To find oneself on the wrong side of section 96,
all that needs to be proven is a risk. It does not even have to materialise.
The public prosecutor concluded that the president must:
11.1.1 Take steps, with the assistance of the National Treasury and the
SAPS, to determine the reasonable cost of the measures
implemented by the DPW [Department of Public Works] at his
private residence that do not relate to security, and which include
[the] visitors’ centre, the amphitheatre, the cattle kraal and chicken
run and the swimming pool.
11.1.2 Pay a reasonable percentage of the cost of the measures as
determined with the assistance of the National Treasury, also
considering the DPW apportionment document.
11.1.3 Reprimand the Ministers involved for the appalling manner in
which the Nkandla Project was handled and state funds were
abused.
11.1.4 Report to the National Assembly on his comments and actions on
However , the National Assembly After endorsing the report by the Minister exonerating the President from liability and
a report to the same effect by its last Ad Hoc Committee,
resolved to absolve the President of all liability. Consequently, the President did not
comply with the remedial action taken by the Public Protector.
The EFF was dissatisfied with this outcome, and launched this application, asking for an order
affirming the legally binding effect of the Public Protector’s remedial action; directing
the President to comply with the Public Protector’s remedial action; and declaring that
both the President and the National Assembly acted in breach of their constitutional
obligations. The DA launched a similar application in the Western Cape Division of
the High Court, Cape Town and subsequently to the Constitutional Court conditional upon the EFF’s
application being heard by this Court.
The Constitutional Court concluded that:
The court has exclusive jurisdiction
The exclusive jurisdiction of the Court is governed by section 167(4)(e) of the
Constitution which says:
“(4) Only the Constitutional Court may—
…
(e) decide that Parliament or the President has failed to fulfil a
constitutional obligation.”
An alleged breach of a constitutional obligation must relate to an obligation
that is specifically imposed on the President or Parliament.
Only the Constitutional Court may—
(a) decide disputes between organs of state in the national or provincial
sphere concerning the constitutional status, powers or functions of any of
those organs of state;
(b) decide on the constitutionality of any parliamentary or provincial Bill, but may
do so only in the circumstances anticipated in section 79 or 121;
(c) decide applications envisaged in section 80 or 122;
(d) decide on the constitutionality of any amendment to the Constitution;
(e) decide that Parliament or the President has failed to fulfil a constitutional
obligation; or
(f) certify a provincial constitution in terms of section 144.
(5) The Constitutional Court makes the final decision whether an Act
