The Trengove Talks Part 5: Thuli and the fire pool

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Visiting Professor Adv Wim Trengove
Visiting Professor Adv Wim Trengove

By Jeremy de Beer

For his fifth and final presentation in two days, Adv. Wim Trengove SC dedicated his talk to former Public Protector Thuli Madonsela, about whom the talk was about.

Adv. Thuli Madonsela inherited a very weak office when she first took office as Public Protector. Over the course of her term, she managed to build it into an office of significant strength that investigated abuses of power and corruption without fear or favour. There was however uncertainty as to the nature of her powers and whether the Public Protector had the power to order public offices to act or whether she could merely make recommendations. As such, there was doubt as to the legal effect of her orders when she did discover abuses of power. This confusion was exacerbated when President Zuma stated in Parliament that her orders were mere recommendations and that it was up to (essentially the culprits) to decide whether to implement these orders and correct their own wrongs. “There was thus a crisis in the functioning of the Public Protector,” remarked Trengove.

There was also uncertainty as to the extent of her powers. The Public Protector derives her powers from the Constitution and the Public Protector Act, but this Act does not describe her powers. Section 182(1) of the Constitution, although not very extensive, explains that the Public Protector does have an investigative power, the power to report and the power to take appropriate remedial action. But what is appropriate remedial action? Some argued that she could make binding orders while others argued that they were just recommendations. “There was also a middle ground that said that her orders were not binding, but that if the culprits did not implement the order they must have rational grounds for not doing so. This was the state of the debate prior to the Nkandla case,” explained Trengove.

So what happened with the Nkandla case?

The Public Protector’s office investigated the excessive amount of money spent on the President’s house with Madonsela titling her report “Secure in Comfort”. It was accepted that it was legitimate for the government to improve security for the President’s home and that it was right for the State to pay for the President’s security. The government was not obliged to pay for personal or private improvements to the home however. Madonsela found several personal improvements had been made and ordered the National Treasury and the SAPS to determine the reasonable cost of the improvements that were not related to security (i.e. the unlawful improvements). She also directed the National Treasury to determine a reasonable cost that the President must pay.

This went to the National Assembly (NA), which decided that they and the President were not bound by this order and merely had to act rationally. The NA then instructed the Minister of Police to investigate the matter to determine whether the President should repay the money. After some months of investigation, the Minister of Police reported that, in his view, the President did not have to repay anything as all the upgrades were for safety and security reasons, justifying luxurious improvements such a massive swimming pool as a “fire pool”. Critics such as Eusebius McKaiser called this “an attack on the very foundation of our democracy,” and Trengove himself called it an “appalling performance by the President, NA, Minister of the Police, and everyone else that did not speak up.”

The EFF then stepped into the breach and prepared an application directly to the Constitutional Court claiming that the President and Parliament had failed to discharge their constitutional duties by failing to comply with the Public Protector’s report and order. Trengove and his co-counsel represented the EFF in the matter. The Democratic Alliance, NA, Minister of Police, Corruption Watch, the President, and Public Protector were also represented in the case.

Days before the hearing, the President capitulated in stages, accepting that he was bound by the Public Protector’s orders. “By the time of the hearing, the President had fully capitulated and conceded the case, leaving the NA high and dry,” explained Trengove. The debate was then held on the common acceptance that when the Constitution says the Public Protector may take “appropriate remedial action”, it means that she may take action that is appropriate in the circumstances, which could include either a recommendation or a binding order on officials to remedy the wrong. “When the judgment came, it was a very powerful judgment by the Chief Justice and an extraordinary stand made by the Judiciary,” said Trengove.

The court held that in this case, the Public Protector’s orders were binding on the President and that his non-compliance contravened his constitutional duties. “It was a fantastic vindication of Advocate Madonsela and I believe it did more for the rule of law than any other judgment I can think of since our democracy,” concluded Trengove.