Last week’s Constitutional Court judgment makes it possible for a valid case of theft to be made against President Jacob Zuma, legal commentators say.
Using the judgment, anyone can go to their nearest police station and lay a charge of theft against the president, according to Dr James Grant, an advocate of the high court.
The police would then be duty-bound to refer the case to the national director of public prosecutions for a decision on whether Zuma could be prosecuted.
Grant said South African law defines theft as the intentional, unlawful taking of property capable of being stolen. The money spent on nonsecurity features at Zuma’s Nkandla home was taxpayers’ money – in other words, property capable of being stolen.
The highest court in the land has already found Zuma’s conduct unconstitutional and, effectively, unlawful, Grant pointed out. The question in a hypothetical criminal trial would be whether he foresaw the possibility that his actions were unlawful in that he was receiving a benefit to which he was not entitled.
Zuma may argue that he did not have any knowledge of the renovations at his home, but the extravagance and scale of the upgrades may suggest otherwise. A trial court would probably weigh up these factors and take into account how the reasonable person would respond.
Based on the extent of the renovations and their duration, a court may require convincing that Zuma really didn’t know what was going on and who was paying for it, Grant said.
The law makes provision for anyone who intentionally helps a person act unlawfully to be charged as an accomplice, he said.
In such an instance, the National Assembly, in ruling that the public protector’s findings on Nkandla were not binding, could become suspect number two – albeit in the members’ individual capacities, Grant said.
Constitutional law expert Pierre de Vos wrote that although last week’s ruling was a historic moment, neither the ruling party nor the court had the power to remove Zuma.
Legal commentator Jonathan Parsonage, a former law clerk to Chief Justice Mogoeng Mogoeng, says the Constitutional Court judgment does not automatically make Zuma criminally liable for the upgrades to his Nkandla home. A separate criminal case would have to be opened, he said.
A legal officer at the Centre for Constitutional Rights, Phephelaphi Dube, said there is “some room” for Zuma to be held criminally liable in terms of the Prevention of Organised Crime Act and the Prevention and Combating of Corrupt Activities Act.
But she believed it would be difficult to determine if this could, in fact, take place in view of that fact that Zuma is president of the country.
Meanwhile, Democratic Alliance leader Mmusi Maimane said his party would approach the Constitutional Court for a ruling on whether Parliament has fulfilled its duty to determine whether Zuma is fit for office following last week’s judgment.
And, said Maimane, this would also establish whether the ANC, by using its majority in Parliament to block Zuma’s impeachment, effectively absolved him of culpability.