Zuma: Defy and rule

Did President Jacob Zuma knowingly and wilfully flout the Constitution, or was it all a big mistake? Zuma, Economic Freedom Fighters advocate Wim Trengove told the Constitutional Court this week, had “defied” public protector Thuli Madonsela by refusing to implement her finding that he was liable to repay the state a portion of the money it had spent on his Nkandla homestead.

As he built up steam, that became “flagrantly defy”, not in Zuma’s personal capacity but as president of the republic. But, challenged on whether he meant deliberate defiance — with intent behind it — Trengove pulled the punch.

“The facts aren’t clear,” he told the court. Pushed on the matter, he told Chief Justice Mogoeng Mogoeng: “I’m not asking you to make a finding of bad faith.”

The official opposition had no such qualms. Simply put, “on the facts of this case there was defiance”, the advocate for the Democratic Alliance, Anton Katz, told the court.

Madonsela had faced “obstruction and defiance of the worst kind, not at the moment her remedial action was taken, but from the beginning, when she started investigating”.

Zuma’s advocate, Jeremy Gauntlett, said he could not see the facts the Democratic Alliance said were so clear. The Nkandla catastrophe, he said, came down to “nothing other than a mistake of law”.

But to decide on Nkandla, advocate Gilbert Marcus held on behalf of Madonsela, the court need not worry about intentions.

“What I want to suggest is … that whether or not it was in good faith is a red herring,” Marcus said, to the evident relief of some in the room.