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As the public calls, from political parties in particular, for the president to act on the remedial action of the Public Protector increase and some have gone as far as issuing veiled threats because of his alleged inaction, I have started to wonder whether we can claim to share a common understanding of our prized constitutional democracy.
Not long ago, some NGO caused an MP who was destined to chair a parliamentary committee to step down because of a fraud conviction. She was sworn in as an MP despite this conviction. For some reason, it was not an issue until her nomination as chairperson.
Recently another NGO was up in arms after the Public Protector issued an adverse report against a minister. Their take was that the findings were nothing but an expression of her incompetence.
In real terms they were suggesting in strong terms that no action be taken until the minister concludes a judicial review of the findings and remedial action.
Then entered a constitutional expert when the Public Protector issued another adverse report – with very tight deadlines for implementation. This expert seems to have conducted a court hearing in his office, making far-reaching conclusions most of which appear wholly unsustainable if they are a prediction of what the court may say.
Apparently, the president is supposed to obtain an interdict if he does not want to implement the remedial action pending a review. The interdict issue appears quite a creative way, considering what an interdict is in law. It is a remedy intended to prevent a future occurrence. In simple terms, it is used to prevent something from happening. In law one has to meet certain requirements to obtain a court interdict. One such requirement is that irreparable harm will occur if the interdict is not granted.
The most creative part is to suggest that the person who does not intend doing something must run to court and ask the court to stop him from doing nothing.
I imagine that the argument in court will go like this. My Lord/Lady, the president does not intend implementing the remedial action until the review process is completed. The court would then ask, so what do you want me to stop the president from doing? The answer would be: Stop him from doing nothing. If the court then agrees, the court order will read that the president is interdicted from doing nothing.
The court would also have to ask: What irreparable damage would be caused if the president is not interdicted? The answer would be that political parties would be depressed. This would probably be the best reason the interdict should be granted.
If I were the judge in the matter, I would order the president and his lawyers to pay the costs from their pockets at triple the scale of costs allowed and order the president to take leave for a week to reflect on whether he still wants to be president and report back to the court.
The question of whether the president must act or not act is not by any means confusing. The Constitutional Court has made it clear that the remedial action is binding unless set aside on a judicial review. Obviously, for this to happen such an application must be made in court first.
It is this application which is before the court which the president relies upon not to act. I understand the president is saying the issue is the timing. I am not certain about what constitutes unconstitutional conduct on the part of the president to stay his own decision pending the conclusion of the review process.
The real issue seems to be to reduce matters of unethical conduct to pure legalese. The question whether the president can and must take action is not always dependent on what the remedial action says. After all the president cannot be told what disciplinary action he must take. It is solely within his powers to act. It may as well be that the findings and remedial action are not sustainable when subjected to a judicial review.
However, that does not mean that the affected minister met the minimum ethical threshold the president expects from the members of his Cabinet. It may be that the president is irritated by the fact that the minister has not taken him into his confidence and the trust has been broken.
That alone is enough for the president to take whatever action he deems fit. Even if the findings of the Public Protector are set aside, it does not detract from the fact that certain information unearthed by the Public Protector may not affect the relationship between the president and the minister affected.
For this reason, the question whether the president must act or not and what action he must take, is not only dependent on the Public Protector report or the judicial review outcome. What is problematic is for anyone to dictate to the president how to exercise his value judgements, which centres on the exercise of discretion.
The president’s decision not to act at this stage is interpreted as an attempt to protect the minister’s rights. That sounds a bit far-fetched. The minister is already protecting his rights by launching a review application. There is no better way to protect his rights than to approach a court. The president seems pre-occupied with his own responsibilities. Among these responsibilities is not to render court processes and judgments academic.
It is incumbent upon the president to show absolute respect for other arms of state and not take decisions or actions which will render the processes of those arms redundant. The Public Protector findings are not against the president. The president is required to implement the remedial action. When he does so he must still do it consistent with his constitutional obligations. These include respect for the Public Protector and the courts. He is required to strike a suitable balance.
The courts have made it clear they do not make orders which have no practical effect or are of academic interest. If the president acts now, it may as well be that future court orders on this matter will simply be of academic interest as far as the president is concerned.
Even if the courts were to confirm the findings of the Public Protector, the court will not prescribe the specific disciplinary action the president must take. It remains his decision. The call for the President to fire the minister therefore has nothing to do with the remedial action.
What is very clear is that we suffer from a lack of consistency on what should happen when allegations of unethical conduct surface. We seem unable to set a clear standard. Whether courts make particular rulings does not detract from our moral and ethical obligations. Ethical decisions are not for the courts of law.
Mannya is an advocate and writer
