DESPITE having daggers drawn over the powers of public protector Thuli Madonsela since her report on the Nkandla scandal, both the ANC and the DA claimed victory after the Western Cape High Court judgment on SABC chief operating officer Hlaudi Motsoeneng.

Friday’s judgment ordered the SABC to commence disciplinary proceedings against Motsoeneng and that he be suspended until then. At the heart of the case, the subject of ongoing and heated debate, is the broader question: is the "remedial action" — which Madonsela is entitled by the Constitution to take after investigating Motsoeneng — legally enforceable?

Yes, says the public protector, the DA and nongovernmental organisations. No, says the ANC, the government and some legal minds.

The court debate was more nuanced, reflecting a spectrum of views, and Judge Ashton Schippers ultimately came down somewhere in the middle — hence the claims of victory from the DA and ANC.

But where exactly on the spectrum Judge Schippers came down is being debated. On the one end is the argument by Madonsela: that her findings and the remedial action set out in her reports may only be disregarded if they are set aside by a court of law.

On the other side is the government’s argument that the public protector’s findings cannot be binding and that she can only "refer" them to the relevant public body and make recommendations as set out in the act.

In court, the government agreed that public protector reports could not simply be ignored. But it argued that the constitutional provisions of cooperative governance and the fact that the public protector could call on Parliament to enforce her findings were sufficient. The DA argued in court that the public protector’s findings were not binding in the same way as a court order. "But organs of state are required to respect and adhere to those findings, and any suggested remedial action, unless they have engaged with the public protector to alter her findings, or they have successfully taken her findings on review".

Judge Schippers rejected the government’s and the public protector’s arguments. He also did not entirely adopt the DA’s approach. He was emphatic that the public protector’s findings are not binding. But nor can they simply be ignored as recommendations, he said.

"If it was intended that the findings of the public protector should be binding and enforceable, the constitution would have said so," Judge Schippers said.

The organ of state may not reject the view of the public protector, even if its own view is also rational, he says. It may only do so for "other, cogent reasons" — for example, if implementing the public protector’s remedial action is impossible.

However, rejecting the government’s argument, Judge Schippers said the ability of the public protector to seek the intervention of Parliament was not good enough to ensure that she was not undermined. Instead, an organ of state may only reject the findings of a public protector if it has "cogent reasons" for doing so — "that is reasons other than merely a preference for its own view".

Judge Schippers set out a series of steps that an organ of state should follow when confronted with adverse findings:

• First, the state organ must "properly consider" the findings and must then decide whether to accept them;

• Then the decision to accept or reject must be rational — taking into account the "underlying purpose" of the public protector, which is to ensure that government officials do their tasks "effectively, fairly and without corruption or prejudice";

• Third, if there is a dispute arising from a decision not to implement a public protector finding, the organ of state "obviously has to engage the public protector";

• Finally, the organ of state may go to court to set aside the public protector’s report.

Given that this is the first time a court has pronounced on the extent of the public protector’s enforcement powers, there are differences of opinion on what Judge Schippers meant.

It is in these subtleties of legal emphasis that an answer will likely be found on Nkandla — especially if Parliament decides to prefer the finding of another Nkandla investigation over the public protector’s.

Wits deputy law dean Mtende Mhango says Judge Schippers adopted English law, which distinguishes between the findings and recommendations of an ombudsman. Under the UK’s law, ombudsmen’s findings may be rejected only if there is a rational basis to do so. But recommendations are treated differently, a "no-hands" approach, and are not binding at all, he says.

Mhango says this means that if the public protector’s view was one of two competing, views and both were rationally arrived at, the public protector’s finding could be lawfully rejected.

But University of Cape Town deputy dean of law Pierre de Vos interprets the judgment to say that, because of the obligation on organs of state to "assist and protect" the public protector, the threshold for rationality is set higher than usual.

The organ of state may not reject the view of the public protector, even if its own view is also rational, he says. It may only do so for "other, cogent reasons" — for example, if implementing the public protector’s remedial action is impossible.

DA chairman James Selfe says he also believes that Judge Schippers’ last step — that an organ of state may approach a court — is mandatory.

In other words an organ of state would have to get court approval for rejecting the findings of a public protector report.

But De Vos and Mhango do not agree with Selfe.

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