Zimbabwe Rule of Law Journal |161
The applicants submitted that the public protector’s remedial actions were binding and enforceable
unless set aside by a court of law and could not be diluted, ignored or circumvented by other organs
of State which are constitutionally obliged to ensure the protection of the public protector’s dignity
and effectiveness.
In reaching its findings, the constitutional court had to address preliminary issues relating to the powers
of the public protector; the powers and functions of Parliament in holding the executive accountable for
its conduct; and the powers of the courts regarding its jurisdiction to preside over such proceedings.
The Court’s Jurisdiction
Using a contextual and purposive interpretation of s 167, the constitutional court affirmed its powers
and exclusive jurisdiction to decide that Parliament or the President had failed to fulfil a constitutional
obligation7 and further that only the constitutional court could decide whether or not the conduct of the
President was constitutional.8 However, the determination of whether or not the President had failed
to fulfil a constitutional obligation was dependant on whether there existed an obligation specifically
imposed on the President to observe or refrain from a certain conduct.
The Duty of the President
That there did exist a specific obligation on the President of the Republic of South Africa imposed by
the constitution of South Africa was recognised by the constitutional court in its reliance on s 83 (b)
which refers to the duty of the President to uphold, defend and respect the constitution. The court
then linked the constitutional obligation imposed by s 83 (b) to s 182 (c) which empowers the public
protector to take appropriate remedial action in respect of any conduct by government officials or public
administrators which is improper or results in any impropriety or prejudice. Even more specific is the
fact that the President as an organ of the State is required to promote and protect State institutions
7
Section 167 (4) Constitution of South Africa
8
Section 167 (5)
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