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The ad hoc committee appointed to consider the report by the President into the security upgrades at his Nkandla private residence absolved the President from any responsibility for the non-security upgrades.

Cabinet then approved the report exonerating the President. This was done despite the Public Protector’s report, which found that the President “unduly benefited” from the upgrades. The report also recommended that a portion of the sum spent on non-security improvements should be paid back. The widely reported chaotic scenes in Parliament of late, all stem from a seeming reluctance by Parliament to hold the executive to account.

While the Western Cape High Court has held in Democratic Alliance v South African Broadcasting Corporation Limited and Others, that the Public Protector’s findings are non-binding recommendations, they can only be ignored where a rational reason for non-compliance exits. This means that at the bare minimum, the ad hoc committee had a duty to call for relevant parties to make representations before it, as is permitted by the rules of Parliament. Instead, the ad hoc committee, made up exclusively of members of the governing party (after opposition members walked out after failing to agree on the committee’s terms of reference) recommended a security reassessment “in terms of current policy and the findings of the State Security Agency and the South African Police Service” which must then be reported to Parliament.

Absolving the President from any responsibility in spite of evidence suggesting otherwise is arguably a dereliction of duty on the part of Parliament. The Constitution provides for a clear separation of powers amongst the three spheres of government. Section 43 vests the legislative authority at the national plane in Parliament, and at the provincial plane in the provincial legislatures. The executive authority vests in the President at national level and in the Premiers at provincial level, as detailed in sections 85 and 125 respectively. In terms of section 165, the judicial authority of South Africa vests in the courts, which are independent and subject only to the Constitution and the law. This has been underlined in various decisions of the Constitutional Court such as South African Association of Personal Injury Lawyers v Heath where the Court stated decisively that the there can be no doubt that the Constitution provides for separation of powers. The Constitution in Section 55 provides that there should be in place parliamentary mechanisms to “ensure that all executive organs of state in the national sphere are accountable to it” and to “maintain oversight of the exercise of national executive authority, including the implementation of legislation and any organ of state”. Section 56 of the Constitution further empowers the National Assembly or any of its committees to summon any person to give evidence and to produce documents and to have any person or institution report to it. As such, the Constitution is quite clear on Parliament’s role in holding the executive to account.

The principle of the separation of powers means that specific powers and functions are allocated to each sphere of government, each with its own duties and responsibilities. The importance of the separation of powers is that each branch of government serves as a “check and balance” on the other branches. No one branch may exercise or usurp the functions of the other two branches of government. The separation of powers also serves to curb any arbitrary excesses by government. The principle further means that if one of the three branches of government is responsible for the enactment of rules of law, then that body cannot be responsible for the execution or the adjudication of the same rules. It is essential for a healthy democracy to maintain a separation of powers.

The separation of powers means that people charged with the execution of state authority cannot use their power in a discretionary manner but are subject to the Constitution. In this way, the Constitution creates a system of democracy and the rule of law, meaning that everyone, including the state and its organs, are subject to the law.

This failure to bring the President to account is contrary to what is anticipated by the Constitution, as described above, which clearly demarcates a separation of powers. This is a failure of Parliament’s constitutional duty to oversee the conduct of executive and to provide a national platform for public consideration of issues to ensure accountable, responsive and open government.

Issued by Centre for Constitutional Rights