Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others

The Public Protector investigated allegations of improper conduct and irregular expenditure relating to security upgrades at President Zuma's private residence in Nkandla. She found that the President failed to act in line with his constitutional and ethical obligations by knowingly deriving undue benefit from irregular deployment of State resources. She identified five non-security features (visitors' centre, amphitheatre, cattle kraal, chicken run, and swimming pool) and took remedial action directing the President to determine their reasonable costs with assistance from National Treasury and SAPS, pay a reasonable percentage, and reprimand the Ministers involved. The President submitted responses to the National Assembly but did not comply with the remedial action for over one year. Instead, the Minister of Police compiled a report exonerating the President, and the National Assembly passed a resolution absolving him of liability. The EFF and DA then launched applications challenging the President's non-compliance and the National Assembly's resolution.

• Does the Constitutional Court have exclusive jurisdiction to hear this matter?
• What is the legal nature and effect of the Public Protector's power to take 'appropriate remedial action' under section 182(1)(c) of the Constitution?
• Is the remedial action taken by the Public Protector binding on the President?
• Did the President fail to fulfil his constitutional obligations by not complying with the Public Protector's remedial action?
• Did the National Assembly fail to fulfil its constitutional obligations to hold the President accountable?
• Can the National Assembly or Executive second-guess or override the Public Protector's findings and remedial action without judicial review?

The Court ordered: (1) It has exclusive jurisdiction; (2) Direct access granted to the DA; (3) The Public Protector's remedial action is binding; (4) The President's failure to comply is inconsistent with sections 83(b), 181(3) and 182(1)(c) and is invalid; (5) National Treasury must determine reasonable costs of the five non-security features; (6) National Treasury must determine a reasonable percentage for the President to pay; (7) National Treasury must report to the Court within 60 days; (8) The President must pay within 45 days of the Court's approval; (9) The President must reprimand the Ministers involved; (10) The National Assembly's resolution is inconsistent with sections 42(3), 55(2)(a) and (b) and 181(3), is invalid and set aside; (11) The President, Minister of Police and National Assembly must pay costs including costs of two counsel.

The Public Protector's power to take 'appropriate remedial action' under section 182(1)(c) of the Constitution means she can determine an effective remedy and direct its implementation. Where appropriate and practicable to effectively remedy a complaint, remedial action is legally binding and enforceable. The rule of law requires that no binding decision grounded in the Constitution may be disregarded without recourse to a court of law to set it aside. To allow disregard of the Public Protector's binding remedial action would render her ineffective and undermine her constitutional mandate to strengthen constitutional democracy. The President's constitutional obligation to uphold, defend and respect the Constitution (section 83(b)), read with the remedial action taken against him under section 182(1)(c), creates an enforceable duty to comply. Neither the President nor Parliament may second-guess or nullify the Public Protector's findings and remedial action, as this would amount to unlawful self-help and usurpation of judicial authority. Only a court of law may set aside the Public Protector's remedial action.

The Court made several important observations: (1) Section 83(b) on its own is too broad to establish exclusive jurisdiction under section 167(4)(e) - it requires an additional specific constitutional obligation to narrow the focus; (2) While the President and National Assembly were entitled to investigate the correctness of the Public Protector's findings, the proper course after reaching a contrary conclusion was to approach a court, not to simply disregard the remedial action; (3) The fact that the Public Protector does not enjoy the same status as a judicial officer does not mean her remedial action cannot be binding; (4) National legislation regulating the Public Protector's powers cannot water down or nullify powers conferred by the Constitution itself; (5) Courts must be sensitive to separation of powers and refrain from prescribing to Parliament how to fulfill its constitutional obligations, but may determine whether Parliament has in fact fulfilled those obligations; (6) Good faith reliance on incorrect legal advice does not detract from the illegality of conduct inconsistent with constitutional obligations.

This landmark judgment comprehensively clarified the constitutional status and powers of the Public Protector. It established that remedial action taken by the Public Protector under section 182(1)(c) is binding and enforceable, and cannot be disregarded or second-guessed by those against whom it is taken without obtaining a court order setting it aside. The judgment affirmed that no person, not even the President, is above the law and that the rule of law requires compliance with binding decisions made by constitutional functionaries. It reinforced the accountability mechanisms in South Africa's constitutional democracy and the role of Chapter 9 institutions in strengthening that democracy. The judgment also clarified the scope of exclusive jurisdiction under section 167(4)(e) in matters involving the President and Parliament, requiring both an express constitutional obligation and an appropriate connection to the remedy sought. It stands as a watershed moment in South African constitutional jurisprudence regarding executive accountability, the rule of law, and the separation of powers.