By Marvin De Vos

The South African Constitution does not directly discuss presidential immunity from criminal or civil prosecution. This question is best understood with reference to the United States’ (US) Constitution where this legal doctrine dates to the 1860’s and has been highlighted in the recent judgment.

‘The [US] Constitution doesn’t directly discuss presidential immunity from criminal or civil lawsuits. Instead, this privilege has developed over time through the Supreme Court’s interpretation of Article II, Section 2, Clause 3’ (FindLaw ‘Article II: Presidential Immunity to Criminal and Civil Suits’ (https://constitution.findlaw.com, accessed 1-8-2024). Presidential immunity was established in the matter of Trump v United States 603 US (2024). The US Supreme Court established presidential immunity under the following circumstances: ‘Former presidents can be criminally prosecuted for unofficial acts committed while in office’, that ‘former presidents have some immunity from criminal prosecution for acts taken while in office’, such ‘immunity is absolute with respect to a president’s exercise of his core Article II powers. … [T]he president [is] immune from prosecution for an official act unless the Government can show that applying a criminal prohibition to that act would pose no “dangers of intrusion on the Executive Branch”. In deciding whether an act is official or unofficial, courts cannot inquire into a president’s motives. Courts may not deem an action unofficial merely because it allegedly violates a generally applicable law’ (Richard Lempert ‘Trump v United States: Explaining the outrage’ (www.brookings.edu, accessed 1-8-2024)).

In the Republic of South Africa, presidential immunity is as foreign as the decision of the US Supreme Court. The President of South Africa (SA) is accountable to the Constitution and the law. Can the President of SA be charged civilly or criminally for his conduct? This article will attempt to answer the question in the backdrop with the US decision. This notion seems to be easily debunked in our jurisprudence as former President Jacob Zuma was charged and prosecuted with an array of offences (see Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (Helen Suzman Foundation as amicus curiae) 2021 (9) BCLR 992 (CC); 2021 (5) SA 327 (CC)). This was also the case with the current, Cyril Ramaphosa, which became a subject of an investigation (see the Report of the Public Protector issued in terms of s 182(1)(b) of the Constitution of the Republic of South Africa, 1996,
ss 3(2)(a), 3(3) of the Executive Members’ Ethics Act 82 of 1998 as well as s 8(1) of the Public Protector Act 23 of 1994 into allegations of violations of executive ethics code against the President of SA, as well as allegations of improper conduct relating to housebreaking with the intent to steal and theft of cash that took place on or about 9 February 2020 at his Phala Phala Farm, in the Waterberg in Limpopo.

The question arises, does such Presidential immunity exist in our law. This article will investigate the possibility of such reliability in the South African criminal justice system. It is accepted that in the South African context no one is above the law and that includes the President of SA. The Constitution in equality under the law, is sometimes an ideal and not a reality. The powers of the President stem from the provisions of the Constitution. Section 85 of the Constitution provides that ‘the executive authority of the Republic is vested in the President’ and that ‘the President exercises the executive authority, together with the other members of the Cabinet’. The South African President is elected by Parliament, and their term is linked to the duration of Parliament, but he can resign, or by a motion of no confidence be forced to resign. Clearly, there is a difference between the US presidential system and the South African presidential system. The US President is elected directly by the people; the US President and members of Cabinet are not members of the legislature; the term of office of the US President is not coupled to the term of the legislature and the US President is not dependent on the majority support in the legislature. It is important to understand the above as it is relevant to the question whether the President of SA enjoys presidential immunity for his conduct.

The question of presidential immunity is a necessary question given the current legal atmosphere. It appears that it has not been adequately discussed or explored in a South African context. It is not central to the assessment of the conduct of the President because of the Constitutional barometer. In my opinion it can, however, be accepted that Presidential immunity of some sort would be necessary for the proper discharged of his duties, but it must be carefully balanced with the need to ensure accountability. The President must act in accordance with the Bill of Rights and overall uphold the principle of legality. The Constitutional Court in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1998 (12) BCLR 1458 (CC) at para 58 stated: ‘It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law.’ The question of Presidential immunity in the South African context is answered in the affirmative through legislation and case law. The President whether former or current does not have immunity from prosecution. They may, therefore, be held accountable in civil and criminal proceedings as proved in various case law above. The US Supreme Court decision, however, gives other jurisdictions some legal dictum to ponder on in this regard. Our Constitutional Court has yet to decide on this question and give a definitive answer in this regard.

Marvin de Vos LLB (UWC) is a magistrate at the Hermanus Magistrate’s Court.

This article was first published in De Rebus in 2024 (September) DR 14.