The nature and role of the structural interdict (supervisory order), its use and appropriateness as a remedy in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (the Nkandla Judgment)

The seminal decision of the Constitutional Court in the Nkandla Judgment was a watershed moment in South Africa’s constitutional democracy, and a remarkable victory for this country’s judiciary as an institutional pillar of government. The judgment is illuminating insofar as it clarifies and affirms several well entrenched constitutional principles relating to the powers and duties of the President and Parliament. Most importantly, the judgment finally cast in stone the nature and scope of the powers of the Public Protector and the binding nature of the remedial action imposed by her office in the Nkandla Report.

The judgment is also an illustration of how the structural interdict may be used to construct a deferential remedy that adheres to the doctrine of separation of powers. This is the focus of this article, in which it will be submitted that, given the hostile political climate in which the Nkandla case occurred and the potential of a breakdown in the relationship between the three spheres of government as a consequence of this, the structural interdict was the most pragmatic and therefore appropriate remedy to adopt under the circumstances.

Section 172 of the Constitution empowers the South African judiciary with the responsibility of crafting just and equitable remedies for breaches of all constitutional rights. There are a wide range of remedies available, but some of the most common include; declaratory orders, mandatory orders and prohibitory interdicts. The structural interdict is not as common as the remedies mentioned above, which makes it unique in that it is only applicable in limited circumstances. The Constitutional Court first acknowledged structural interdicts as a valid and applicable remedy in 1998 in Pretoria City Council v Walker, in which it was held that litigants seeking either a declaratory or mandatory order to vindicate a constitutional right could also obtain a court order that the sphere of government in question take appropriate steps as soon as possible to eliminate the violation of rights and to report back to the court in question.

In essence, structural interdicts require the violator to rectify the breach of a fundamental right under the supervision of the court. Authors Ian Currie and Johan de Waal highlight in The Bill of Rights Handbook that one of the five elements common to structural interdicts is that the court issues a declaration identifying how a sphere of government has violated an individual or group’s constitutional rights, or otherwise failed to comply with its constitutional obligations. Secondly, the court mandates that that sphere of government must comply with its constitutional obligations.

Thirdly, that sphere of government is ordered to prepare and submit a comprehensive report, usually under oath, to the court on a predetermined date. That report must describe in detail the action plan for remedying the challenged violations. The report must also give the responsible state agency the opportunity to choose how it intends to comply with the constitutional rights in question, as opposed to the court itself developing or dictating a solution. Fourthly, once the required report is presented, the court evaluates whether the proposed plan sufficiently remedies the constitutional infringement, and whether it brings the sphere of government into compliance with its constitutional obligations. The fifth and final step is a final order by the court if it approves the proposed plan. This final order integrates the plan and any court ordered amendments issued by the court. Following this step, a sphere of government’s failure to adhere to its plan or any associated requirements essentially amounts to contempt of court.

These five common characteristics of structural interdicts mirror a major part of the remedy imposed by the Constitutional Court in the Nkandla Judgment, in which Mogoeng CJ on behalf of the Court ordered that the failure by the President to comply with the remedial action taken against him by the Public Protector in her report was inconsistent with s 83(b) of the Constitution read with s 181(3) and 182(1)(c) of the Constitution, and was therefore invalid. It was further ordered that the National Treasury must determine the reasonable costs of measures implemented by the Department of Public Works at the President’s Nkandla homestead that did not relate to security features. In doing so, the National Treasury was further tasked with the responsibility of determining a reasonable percentage of the costs of the non-security related features which ought to be paid personally by the President.

The Court then ordered that the National Treasury report back to it on the outcome of its determination within 60 days of the date of the order. The President had to personally pay the amount determined by the National Treasury within 45 days of the Court’s signification of its approval of the report. The Court also ordered that the President must reprimand the Ministers involved in the Nkandla scandal. The resolution passed by the National Assembly absolving the President from compliance with the remedial action taken by the Public Protector in terms of s 182(1)(c) of the Constitution was held to be inconsistent with ss 42(3), 55(2)(a) and (b) and 181(3) of the Constitution. This conduct was also held to be invalid and therefore set aside. Lastly, the Court ordered that the President, the Minister of Police and the National Assembly had to pay the costs of the applications, which included the costs of two counsel.

One of the advantages of the use of the structural interdict in the Nkandla Judgment is that through the flexible and pragmatic exercise of supervisory jurisdiction, the Constitutional Court created a dynamic dialogue between the judiciary and the other branches of government in remedying the violation of the above constitutional rights by the President and the National Assembly. It also provided the EFF and the DA as litigants with an important opportunity to return to court and follow up on the declaratory order imposed by the Court.

Perhaps most importantly, the remedy preserved an active role for the judiciary while at the same time avoiding difficult separation of powers problems which would have materialized had the Court taken a less nuanced and pragmatic approach (ie. by requiring the legislature and the executive to formulate court determined plans for change). In connection to this, the use of the structural interdict by the Constitutional Court also circumvented potential issues that could have arisen as a consequence of the judiciary’s intrusion into the other branches of government, where it lacks institutional competence. The Constitutional Court took action in accordance with s 172 of the Constitution so as to reprimand the President and the National Assembly, but also deferred to the National Treasury in recognition of the need to accommodate for complex polycentric decision-making in the resolution of the matter.

In conclusion, the use of the structural interdict by the Constitutional Court in the Nkandla Judgment was the most appropriate remedy because it preserved the Court’s special role and the judiciary as a whole within South Africa’s democracy. By providing the Court with such an effective tool to remedy the violation of constitutional rights by the President and the National Assembly, the use of the structural interdict bolstered the institutional integrity of the judiciary.

Written by Nandile Tabata, Candidate Attorney (Litigation), Knowles Husain Lindsay