Economic Freedom Fighter v Speaker of Bational Assembly And Others; Democratic Alliance v Speaker of National Assembly And Others [2016].

Full Name of the Case: economic freedom fighter v speaker of national assembly and others;  democratic alliance v speaker of national assembly and others [2016]. 

Full citation: 2016 ZACC 11  

Court name: constitutional court of South Africa  

Bench: Mogoeng CJ, Moneseke DCJ, Boesielo AJ, Cameron J, Froneman J, JaftaJ,  Khampepe J, Madlanga J, Mhlantla J, Nkabinde J and Zondo J  

Bench type: Constitutional bench  

Date of judgment: 31 March 2016 

Parties involved: Appellant and respondent  

Fact of the case  

The Nkandla controversy, a landmark case in South African constitutional law, revolves  around allegations of executive misconduct and abuse of power.1 The controversy began  when several concerned citizens, including a member of parliament, lodged complaints with the public protector regarding irregularities in the security upgrades at President Jacob  Zuma’s private residence in Nkandla, Kwazulu Natal. This prompted the public protector to  launch an extensive investigation into the matter, focusing on potential misuse of the state  funds and resources.2 

The public protector investigated allegations of improper conduct and irregular expenditure  pertaining to the security upgrade at President Jacob zuma’s private residence in Nkandla.3It  was concluded that the president failed to act in accordance with his constitutional and ethical  obligations, knowingly deriving improper benefit from the irregular utilisation of the state  resources, with the assistance of certain state officials.4 The public protector’s report was  submitted to both the president and the national assembly, with the aim of facilitating  remedial action in line with the assembly constitutional obligations to hold the president  accountable.5 

However, neither the president nor national assembly complied with the required remedial  action, additionally, the alleged misuse of public funds for non-security features, and his  subsequent failure to comply with the public protector remedial order.6It was founded that some of the upgrades were unlawful and recommended that president Zuma pay back the  money used for them.7 

Issue raised  

In addition to establishing that the constitutional court has its exclusive jurisdiction over the  matter, the court addressed the following issues: 

1. Whether the public protector’s remedial actions are binding? 
2. Whether President Jacob Zuma breached the constitution by failing to implement his  obligations in terms of section 96, 181, 83 and 182 of the public protector’s remedial? 
3. Whether the National Assembly fulfilled its constitutional obligations to hold the resident  accountable? 
4. The implications of the National Assembly failure to implement the public protector’s remedial action? 
5. The process for impeachment proceedings under section 89(1) of the constitution?8 Argument of the parties  

The Economic Freedom Fighter and Democratic Alliance9initiated parallel applications,  seeking validation of the public protector’s report and directive for the president to adhere to  its recommendations, alleging that the president and national assembly had failed to meet  their constitutional responsibilities.10 The Economic Freedom Fighter argued that the  president contravened section 96, 83,182 and 181 of the constitution, specifically his  obligations to maintain ethical standards, ensure the public protector’s efficacy, uphold the  constitution, and implement the public protector’s directives.11 

The applicants argued that the minister of police’s report, which purported to clear the  president of liability, was flawed and should be nullified. Both applicants and the public  protector sought guidance on the extent and nature of the public protector’s authority to take  corrective action.12 

The speaker argued that the public protector’s power to take remedial action was limited to  mere recommendations implying that they were not binding prior to the hearing the president  claimed that his actions were in with the public protector’s remedial measures.13 Respondent  maintained that his investigation and reports were lawful. In contrast the public protector submitted that her authority to take appropriate remedial action is binding and enforceable  and remains so until set aside by the court of law.14 

The president argued that the public protector’s decision are situational and lack binding  force and that he had, in any case, already implemented the necessary measures. He  contended that the matter should have been referred to the minister of police and asserted his  right, as president to investigate his own liability and the government’s right to investigate.15 

Judgment  

The court declared that the president and national assembly actions were inconsistent with the  constitutional obligations, upholding the EFF and DA claims, which fell within the court  exclusive jurisdiction.16 The court ordered the president liability for the five non-security  upgrades and report back within 60 days. The president was ordered to make payment within  45 days thereafter. The court affirmed that the public protector remedial actions are binding.17 The court ruled that the national assembly resolution, which exonerated the president based  on the minister finding was unconstitutional and unlawful. Additionally the court found that  the president failure to comply with public protector, directives constituted a breach of his  duty in terms of section 83.18 

Chief justice Mogoeng Mogoeng ruled that the corrective measures taken by the public  protector against the president were binding and that the president’s failure to comply with  these measure was unconstitutional and invalid.19 Furthermore the national treasury was  instructed to determine a reasonable percentage of the costs of non-security enhancements,  including the amphitheatre, chicken run, cattle kraal and swimming pool, to be paid by the  president.20 

The court rule by stating that the powers of the pubic protector correlative measures are  enforceable and must be complied with unless challenged and overturned through legal  means. The public protectors power extend beyond mere recommendations, as her findings and remedial actions carry binding weight.21 Chief justice Mogoeng Mogoeng noted that the president neglected to uphold, defend and respect the constitution, the supreme court of the  land.22 This failure was apparent in his substantial disregard for the public protector’s corrective measures, taken in accordance with the constitutional authority. The president’s  second failure pertained to his shared obligations under section 181(3) where he failed to support and safeguard the public protector, thereby undermining the autonomy, impartiality,  dignity and efficacy by refusing to implement the remedial action.23 

The court finds the national assembly actions to be lacking, as it failed to hold the president  accountable and instead questioned the public protector’s findings without a formal challenged. This was deemed inconsistent with its constitutional duties under section 55(2)  and 42(3).24 The constitutional court emphasized that section 89 of the constitution outlines  the process for removing the president from the office. The national assembly has a  constitutional obligation to make rules regulating the impeachment process under section  89(1).25 Section 89 process is a critical mechanism for holding the president accountable for  serious violations of the constitution or misconduct. The court emphasized that the national  assembly must do a fair and transparent process for impeachment proceedings.26 

Legal reasoning  

The constitutional court affirmed that the constitution safeguards the public protector’s independence, impartiality, dignity and effectiveness as crucial for its role in addressing  corruption. Given that many citizens lack access to litigation, the public protector serves as a  vital institution, providing a voice for the marginalized. To fulfil this role, the public protector must have adequate resources and capacity, enabling her to reinforce South Africa’s  democratic framework.27 

The constitution court’s unanimous decision held that president zuma’s non-compliance with the public protector’s remedial actions constituted a breach of his constitutional oath.28 This  riling reinforced the principle of accountability, emphasizing that all branches of government,  including the executive and legislature are bound by the constitution and must uphold its  provisions. 29The decision highlighted the importance of establishing clear procedures for  impeachment to ensure effective constructional governance.30 

The judgment has profoundly impacted South African constitutional law, establishing the  binding force of the public protector’s corrective measures and solidifying accountability for  public officials, including the president.31 It has augmented the role of chapter 9 institutions,  reinforced checks and balances and entrenched the rule of law, marking a significant  milestone in country’s democratic development.32 The case confirmed that the public  protector’s remedial actions are enforceable and binding and reinforced the principle that public officials, including the president, are accountable to the constitution, thereby strengthening the enforcement powers of institutions like the public protector and advancing  the system of checks and balances.33 

Conclusion  

The constitution ensures that everyone is treated the same before the law no one is above the  law including president.34 Our constitution is marked by inequality where certain individuals  were afforded special treatment and privileges, while this backdrop our constitution enshrined 

the fundamental principle that all individuals are equal before the law regardless of their  position or status. This means no one, not even the president, is entitled to undue benefits  simply because of their position.35 

In conclusion, this landmark judgment has cemented the constitutional court’s role as a  guardian of accountability, reinforcing the principles of transparency and good governance.  By upholding the public protector’s binding remedial powers, the court ensured that public  officials, including the president, are held to the highest standards of integrity. This decision  marks a significant milestone in South Africa’s democratic journey, underscoring the  importance of checks and balances in maintaining the rule of law. 

This seminal judgment has left an indelible mark on South Africa’s constitutional landscape,  unequivocally affirming the public protector’s authority to hold the powerful accountable. By  upholding the binding nature of the public protector’s remedial actions, the constitutional  court has sent a resounding message that no one is above the law, not even the president. This  decision is a triumph for transparency, accountability and the rule of law, cementing South  Africa’s commitment to a democratic culture of accountability and good governance. 

Reference(S):

1 Eff v speaker of national assembly and others, 2016 para 2. 

2Secure in comfort: report on an investigation into allegations of impropriety and unethical  conduct relating to the installation and implementation of security measures by the  department of public works at and in respect of the private residence of president Jacob Zuma  at Nkandla in the KwaZulu-Natal province no 25 of 2013/14 public protector of South Africa  at para 10-12, 19 March 2014. 

3Supra fn 1, para 5. 

4 Supra fn 1, para 8. 

5Section 42(3) of the constitution and section 22(2) of the constitution read with section 8(2)  (b) (1) of the public protector Act 23 of 1994. 

6 Supra fn 1, para 3.

7 Supra fn 2, para 8. 

8 Constitutional court of South Africa website, (accessed 30 November 2025). 9 Political parties represented in the parliament. 

10 Stender, A, chapter 6: chapter 9 institutions, opensbooks. UCT. ac.za,(accessed 29  November 2025) 

11 Sections of the constitution of the republic of South Africa 1996. 

12 Scribd, Eff v speaker of national assembly and others 2016  https://www.scribd.com/document/903118189/EFF-CASE (accessed 30 November 2025). 13Cachalia, R, Nkandla Judgment A short word on impeachment African Legal Centre (ALC)  7 April 2019.

14Ibid, para 4. 

15 Ibid, para 6. 

16 Supra fn 1, para 13. 

17 Supra fn 1, para 74. 

18 Supra fn 1, para 83. 

19Nkandla ConCourt ruling: President Zuma and National Assembly in breach of  Constitution, www.dailymaverick.co.za. 31 march 2016. 

20 Supra fn 1, para 6. 

21Filo, https://askfilo.com/user-question-answer-smart-solution/what-was-the-judgment-of the-economic-freedom-fighter-v-3337383431303936 (accessed 28 November 2025). 22Supra fn 21, para 2.

23 Ibid, para 2. 

24 Sections of the constitution of republic of South Africa 1996. 

25 Section 89 of the constitution of republic of South Africa 1996. 

26Ibid, para 2. 

27Supra fn 26, para 4. 

28Grootes, S, Analysis the judgment at the end of the Nkandla road, www.dailymaverick.co.za. 31 March 2016. 

29 Supra fn 1, para 89-90. 

30 Supra fn 1, para 32. 

31 Supra fn 1, para 54. 

32 Certification of the constitution of the republic of South Africa 1996(CCT23/96) [1996]  ZACC 26 1996 (4) SA 744 (CC) 1996 (10) BCLR 1253 (CC), 6 September 1996 para 45.

33 Supra fn 1, para 69. 

34Section 9 of the constitution of the republic of South Africa 1996. 

35 All South Africans, including Zuma, are equal before law, De Vos. News 24. 31 March  2016.