1. VALUE OF THE NKANDLA JUDGMENT FOR THE AGSA
Eastern Cape stakeholder engagement
3 February 2017

2. REPUTATION PROMISE/MISSION
The Auditor-General of South Africa has a constitutional mandate and, as the Supreme Audit Institution (SAI) of South Africa, exists to strengthen our country’s democracy by enabling oversight, accountability and governance in the public sector through auditing, thereby building public confidence.

3. PURPOSE OF THE DISCUSSION
To create a common understanding of the value of the Nkandla judgment for the AGSA
To reflect on the state of consequence management in the RSA
To explore avenues to apply the Nkandla principles to change the picture
To share ideas on how to equip the AGSA with statutory teeth

4. CONTENT Constitutional Hill, 1 Hospital Street, 2017
Legal principles confirmed
Legal nature of our findings and opinions
Responsibility of legislatures
Insights of the Chief Justice of the RSA
Direction issued by SCoAG
Interactive session

5. CONSTITUTIONAL HILL, 1 HOSPITAL STR, 2017
The Prayer
The Order
Must the President comply?
Yes
Must the President reprimand the ministers?
Did the President fail in his duties?
Resolution of the NA
Invalid and set aside
Is the PP’s remedial action binding and enforceable?
Who must pay the cost?
President, NA and Minister

6. CONSTITUTIONAL PRINCIPLES CONFIRMED
Judgment dealt with functions and powers of PP only
Section 181 principles all confirmed
Strengthened the position of all Chapter 9s
Further meaning of the judgment depends on unique mandate of each Chapter 9

7. NATURE OF OUR FINDINGS AND OPINIONS
Public Protector of SA
Auditor-General of SA
Section 182
Section 188
The Public Protector has the power, as regulated by national legislation –
To investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice;
To report on that conduct; and
To take remedial action.
(1)The Auditor-General must audit and report on the accounts, financial statements and financial management of –
(a) all national and provincial state departments and administrations;
(b) all municipalities; and
(c) any other institution or accounting entity required by national or provincial legislation to be audited by the Auditor-General.

8. NATURE OF OUR FINDINGS AND OPINIONS (2)
PP – three dimensional, facts and compliance driven mandate
AG – two dimensional mandate largely based on professional judgment
Performance audits, investigations, other functions closer to PP mandate
The difference – PP takes remedial action, AG not
No power to enforce compliance with accounting standards or the law

9. RESPONSIBILITY OF LEGISLATURES
Sec 42(3) – duty to scrutinise executive action
“Careful consideration, thorough examination, penetrating and searching reflection”
NA acted correctly by not blindly accepting the PP report
Anything short = contravention of Constitution
Erred when discarded PP report (assumed judicial function)
Should have referred for judicial review
AGSA – expect thorough scrutiny, demand thorough scrutiny

10. VALUE OF NKANDLA FOR AGSA
All sec 181 principles confirmed for all Chapter 9s
Similarity between PP and AG functions
AG lacks powers to enforce audit recommendations
AG reports not subject to administrative justice review
AG reports subject to legislature and judicial scrutiny
Opened door to reconsider AG powers

11. CHIEF JUSTICE - INTOSAI ENGAGEMENT
ISSAI 7
Powers similar to remedial action powers of the PP
Adequate financial resources to recruit and retain
Public awareness

12. STANDING COMMITTEE ON THE AG
SCoAG meeting 25 November 2016
Remedial action powers
Modernise PAA in certain areas

13. INTERACTIVE SESSION
What is the real state of consequence management in SA?
How can the principles of the Nkandla judgment ensure that audit findings are taken seriously and recommendations are implemented?
How far should the AG’s powers to take remedial action go?

14. THANK YOU