Economic Freedom Fighters v Speaker of the National Assembly

The Constitutional Court held that the Public Protector's remedial action is binding and must be complied with unless set aside by a court of law. The judgment arose from the Nkandla matter where President Zuma failed to implement the Public Protector's findings regarding unlawful expenditure on his private residence. The Court affirmed the constitutional obligation of all organs of state and persons to assist and protect the Public Protector's independence and to comply with her remedial action.

The Public Protector investigated security upgrades at President Zuma's Nkandla residence and found improper expenditure on non-security features. She issued remedial action requiring the President to repay a portion of costs as determined by the National Treasury. The President and National Assembly failed to implement the remedial action, instead establishing a parallel process through a ministerial task team that exonerated the President.

Whether the Public Protector's remedial action is binding on the President and National Assembly, and whether their failure to implement it violated the Constitution.

The Public Protector's remedial action is binding and enforceable unless reviewed and set aside by a court. The President and National Assembly failed to uphold, defend and respect the Constitution by not implementing the Public Protector's findings and remedial action.

Remedial action taken by the Public Protector in terms of section 182(1)(c) of the Constitution has binding legal force and must be complied with unless judicially reviewed and set aside by a court of competent jurisdiction.

The Court interpreted the constitutional text, structure and purpose of the Public Protector's office under section 182, emphasizing that the office would be toothless without binding remedial powers. The Constitution requires all organs of state to assist and protect the Public Protector, which would be undermined if her remedial action could simply be ignored. The rule of law and doctrine of legality demand compliance with lawful remedial action pending any judicial review.

The Court noted the constitutional importance of Chapter 9 institutions as essential bulwarks of our democracy, requiring protection and support from all branches of government to perform their constitutional mandate effectively.

This is a foundational judgment on the powers of the Public Protector and constitutional accountability. It establishes the binding nature of remedial action by Chapter 9 institutions and reinforces the principle that no person, including the President, is above the law.

Economic Freedom Fighters v Speaker of the National Assembly 2016 (3) SA 580 (CC) [2016] ZACC 11