Zuma at bay in SA’s highest court
PRESIDENT Jacob Zuma flagrantly defied the public protector’s report into the upgrades at his private Nkandla home because he wanted “to protect his ill-gotten gains and hold on to wealth he improperly obtained”.
And by so doing, Zuma had violated the constitution and was in breach of his oath of office. This was the stance by advocate Wim Trengove SC, appearing for the EFF, in the Constitutional Court yesterday as the furore around the multimillion-rand upgrades at Nkandla reached the apex court in the country.
Zuma endured a chastening rout before a full Bench of the Constitution Court for his refusing to pay back the money. Trengove led the onslaught against the president, accusing him of wilfully defying Thuli Madonsela’s report.
“What we have is a persistent breach of the constitution for almost two years and no explanation for it. He defied her in order to protect his ill-gotten gains… he defied her in order to hold on to wealth he improperly obtained,” said Trengove.
Zuma’s lawyer, advocate Jeremy Gauntlett, had yesterday, in a massive climbdown, conceded on behalf of the president that in the Nkandla case the remedial action was binding and required that the president to comply.
Gauntlet said that the minister of police had “shot his bolt”, so the president agreed he should not be involved in remedial action.
“We accept it’s not just a recommendation. She (Madonsela) wanted things done... It’s action we must take,” Gauntlett said.
“But we say only the five items identified by the public protector (the swimming pool, visitors’ centre, cattle kraal and chicken run and amphitheatre) are non-security related. All others are security related.”
Gauntlett said the Concourt case was a precursor for an impeachment proceedings by the DA. But Trengove maintained that Zuma had failed to approach the court and give his explanation about his decision not to implement Madonsela’s recommendations.
“He could have come to court and said: ‘I am sorry’.”
It had been because of bad legal advice that he had ignored the administrative findings of the public protector. He had failed to offer any explanation, except to say in his affidavit handed in today that he was prepared to pay.
Trengove was adamant that Zuma’s latest change of heart was not good enough. “His latest capitulation was gratifying, but not good enough,” he said, urging the court to make a declaratory order that the public protector rulings were binding on all organs of state.
Madonsela had in March 2014, in her report “Secure in Comfort”, found that Zuma and his family had unduly benefited from the security upgrades of his Nkandla home. She also ordered the president to pay back a portion of certain features that did not meet the requirements of security at his home.
In her documents before court yesterday, Madonsela, through her counsel, advocate Gilbert Marcus, told the court that she wrote various letters to Zuma informing him that her remedial actions were binding on him, but he ignored it.
Marcus reiterated in court that Zuma had since March 2014 ignored his clients, including instructing the Minister of Police, Nathi Nhleko, to investigate whether he was liable to pay back the money.
The EFF used all this historical background to urge the Concourt to rule that the findings of Madonsela were binding “unless set aside by the court of law”.
Trengove said: “The Concourt must also rule that Zuma had failed to implement the administrative order of the public protector and was therefore in breach of his oath of office and the constitution.”
Advocate Anton Katz SC, for the DA, dismissed a submission by Gauntlett that the latest court action was a precursor to an impeachment proceedings application.
Katz said his client said no such decision had been taken at any meeting or caucus. The DA was adamant that Zuma “wilfully defied” Madonsela and therefore urgent the Concourt to make an adverse finding against him.
It was clear in Gauntlett’s submission that his client wanted this matter of #PayTheMoney put behind him and that the court should rule on when he should pay back the money.
Ideally, according to Zuma, 90 days was enough to do so, but he conceded that the Concourt could make a decision on it after the EFF and Madonsela had rejected it.
While Zuma conceded that everything, including Nhleko’s report – which found him not liable for the upgrades – was unlawful, the same could not be said about the Speaker of Parliament Baleka Mbete who, through her counsel, advocate Lindi Nkosi-Thomas, was still defiant.
She drew the ire of the justices as she tried absolving the National Assembly from any possible dereliction of constitutional duties regarding Madonsela’s report.
That report was driven through Parliament by the ANC majority, and prompted opposition parties to go to court to enforce Madonsela’s findings.
She argued that Madonsela did not give any instructions to Parliament. Chief Justice Mogoeng Mogoeng asked Nkosi-Thomas whether it was not the responsibility of bodies such as the National Assembly to hold Zuma accountable based on Madonsela’s findings.
Nkosi-Thomas replied that Madonsela could not direct Parliament as to the execution of its duties.
“The public protector does not have the power to
direct Parliament... she cannot dictate to Parliament,” she argued.
“As argued earlier by my learned friends, the report remains binding, yes, it is binding to the president, ours is a different function... ours is not an enforcement mechanism such that of the sheriff of the court.
“She (Madonsela) cannot expect Parliament to merely rubber-stamp (her report) without applying its mind.
“The role of Parliament is different,” she said.
Gauntlett’s move of dismissing Nhleko’s report drew gasps and whispers of disbelief from the court’s public gallery. EFF leader Julius Malema nodded his head in agreement. William Mokhari, for Nhleko, said the minister’s “hands were tied”.
“In the past few days the train has been moving too fast, almost leaving us behind,” he said, referring to Zuma’s letter to the EFF and DA offering to pay some of the money spend in Nkandla to settle the case.
“He (Nhleko) had to follow instruction given to him by the National Assembly,” he said.
Mokhari agreed that Madonsela’s findings were binding.
“The law is very clear that if you do not like it, you take it on review,” said.
Judgment has been reserved.