Madonsela is right to review SABC judgment

TO Molefe

Nevermind that the actual case before the court was in itself significant, the showdown between the Democratic Alliance and the SABC at the Western Cape High Court last Friday was a proxy battle over Public Protector Thuli Madonsela's Nkandla report.

On everyone's mind, as judge Ashton Schippers delivered his judgment in that case, was remedial action 11.1.2. in Madonsela's Nkandla report, wherein she said president Jacob Zuma must pay back a reasonable portion of costs the non-security-related aspects of the upgrade to his Nkandla home.

President Zuma has repeatedly denied benefitting unduly from the upgrade. Earlier this month, he suggested that his role in the Nkandla security upgrades scandal has been blown out of proportion by the media, whom he accused of wilfully ignoring the report of the Special Investigating Unit.

“Why don't you write that the SIU absolved the president of responsibility? Now everyone's saying Zuma ate the money,” he said to members of the press, according to Beeld.

Presumably he is referring to the SIU's finding that he did not request the upgrade. This is a selective reading. The same report also said the president and his family had been enriched by increase in the scope of the upgrades to his Nkandla home.

Given all these straws he's grasped to escape his share of responsibility, the president and the people who've mobilised to protect him from the Nkandla security upgrades fallout were surely watching last Friday's case keenly. Up for consideration was how binding and enforceable the Public Protector's findings are, but the ramifications of the case go beyond the actions of high-profile politicians and public representatives like president Zuma.

DA vs SABC

The DA had hauled the SABC and eight others to court over the SABC board's refusal to implement the remedial actions in another of Madonsela's reports; one in which she directed the board to take disciplinary action against the public broadcaster's then acting Hlaudi Motsoeneng. But instead of taking disciplinary action against him, the SABC board promoted him from acting to permanent chief operations officer.

Judge Schippers ruled that organs of state like the SABC can't simply ignore the Public Protector's findings without providing cogent reasons that go beyond a preference for their own point of view on the matter. They cannot, in other words, simply agree to disagree with the Public Protector.

Thus he ordered that the SABC board suspend Motsoeneng and institute disciplinary hearings against him, as directed by Madonsela.

But the part of the ruling that likely caught the attention of the president and his defenders is what came before, where the judge said: “Unlike an order or decision of a court, a finding by the public protector is not binding on persons and organs of state.”

Constitutional law professor Pierre de Vos explained on his blog that taken in its entirety, the ruling means than an organ of state needs to provide cogent reasons before it rejects the findings or opts not to comply with the remedial actions in a report of the Public Protector. The SABC provided no cogent reasons so it lost when the DA approached the court, which effectively made Madonsela's finding an order of the court and thus binding in that narrow sense.

Equally, as none of the organs of state and public representatives involved in the Nkandla upgrades have provided cogent reasons for why president Zuma should not pay back the money as directed by Madonsela, they are likely in for the same outcome.

Accountability is not wasteful

This hasn't stopped the African National Congress, which has long argued that the Public Protector's findings are not binding and enforceable, from claiming that the judgment has vindicated its position. However, the judgment has done so only in so far as how binding and enforceable the findings are relative to an order of the court.

Perhaps the judge ought to have phrased it as follows: “A finding by the public protector is not binding on persons and organs of state in the same way as an order or decision of a court, but it is nonetheless binding and must, in the absence of cogent reasons to the contrary, be complied with.”

This makes it clear that it's matter of degree. I suspect it will all become clearer when the judgment is brought to court for review as requested by the Public Protector-a decision that has not escaped the criticism of the ANC, which has described it as a waste of public funds.

But in requesting the review, Madonsela is acutely aware that the vast majority of the 40 000 cases her office is currently dealing with do not involve high profile politicians and public representatives whose non-compliance will be kept in the spotlight by trenchant MPs chanting “pay back the money” in Parliament or enterprising journalists on the hunt for a Sunday lead. They involve complaints by ordinary people against municipalities, public entities and provincial departments that have failed in their mandate to provide services.

It would be impossible and manifestly unjust to expect these complainants to approach the court, as the DA did, if the organ of state involved ignores the Public Protector's findings and remedial actions. Taking the judgement on review is a waste of money only if you believe justice and a responsive, accountable government should be the exclusive domain of those with the financial means to turn to the courts for help when the government has failed to deliver.

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