/ 15 May 2014

Court challenge to Nkandla report gets ‘president off the hook’

amaBhungane's Lionel Faull talks us through the Nkandla report and what it means for Jacob Zuma
amaBhungane's Lionel Faull talks us through the Nkandla report and what it means for Jacob Zuma

In a curiously timed statement on Thursday the ministers responsible for police, the military, intelligence and justice said they had “resolved” to ask the high court to find the  public protector’s Nkandla report invalid on the grounds that it is flawed, irrational, and contrary to the doctrine of the separation of powers.

However, there were no details on the planned action yet because detailed arguments had not yet been prepared.

The report was released two months ago and dismissed as flawed by the same security cluster on the very day of its release, as well as prior to its release.

Public protector Thuli Madonsela, in her report, found that President Jacob Zuma and his family had unduly benefited from R246-million security upgrades to his private Nkandla homestead in KwaZulu-Natal, which included a swimming pool, a cattle kraal, and an amphitheatre.

A court could strike down the report, send it back to Madonsela for reconsideration, or even edit the document itself, but precedent and the nature of the report itself makes such an outcome implausible in the extreme, various experts on both law and the Nkandla matter agreed.

The chances of success may not feature in the motive for the move, however. 

“By taking this to court, you tie up the report in the court process for two or three years,” said constitutional expert Pierre de Vos, one of the original complainants that led to the Nkandla report. “That gets the president off the hook; it allows him to not deal with the substance of the report.”

Madonsela dismissive
Technically the ministers of the security cluster all lose their jobs when Parliament elects the president. Although that is a mere formality, Zuma is expected to reconstitute his Cabinet soon after, and current ministers could consider themselves to be in the process of reapplying for their jobs – jobs awarded at the pleasure of the president, against whom the Nkandla report made damning findings.

Madonsela, who has met the ministers in court over the Nkandla report before (and emerged victorious) was politely dismissive of the announced plan, saying in a written statement she “could not imagine any court of law finding in the ministers’ favour”, and that turning to the courts in the first place was a mistake.

“The architecture of our constitutional democracy as we understand it requires that the matter be debated in Parliament first. Should there be no common understanding, the matter can then be taken to court,” she said in the statement. – Additional reporting by Sapa