The argument would go something like this: President Jacob Zuma failed to take appropriate action on Nkandla. By doing so, he knowingly undermined both the office of the public protector and the Constitution. That, in turn, caused others to believe they could act with impunity, doing untold harm to South Africa and its people.
That is the potential case that a third party could make on the basis of public protector Thuli Madonsela’s take on Nkandla – unless the president changes course and repays some of the state money spent on his Nkandla residence, and so implicitly admits that he and his family unduly benefited from the R250-million project.
Madonsela last week told Zuma that he had not responded to her report on Nkandla, in which she found him in breach of ethical rules and liable to repay some of the costs of improvements.
The ANC and the presidency maintain that Zuma’s 20-page “report to the speaker”, submitted to Parliament on August 14, is a response to Madonsela’s report of nearly 450 pages.
“I could find no indication in your report that you were responding to the contents of my report, commenting on it and were reporting to the National Assembly on the actions that you have taken or are taking to implement remedial action,” Madonsela wrote to Zuma last week. “I have also noticed that your report excludes some of my findings and remedial action.
“I am concerned that your decision gives an impression that you are unhappy with my finding that you should pay, and [my] point of view that the national treasury and the South African Police Service should only assist you to quantify the reasonable amount to be paid.”
In another part of her letter, Madonsela referred to the constitutional authority under which her investigation was conducted in a decidedly pointed fashion.
“As you are aware, section 181(3) of the Constitution provides that organs of state (which includes the president) must assist and protect the institution of the public protector to ensure its independence, impartiality, dignity and effectiveness,” Madonsela wrote, before urging Zuma to actually respond to Parliament on her report.
Continuing down the path he is on, she warned, “would not augur well for expectations that the rule of law is being upheld at all levels, including at your level as the pinnacle of government. It may also encourage impunity at various levels of the state”.
She also pointed out that her reports can be overturned by a court but not by executive decision.
Madonsela has often noted that her office relies on “soft power”, the use of persuasion, cajoling and, to some extent, public sentiment to get the job done. But her letter to Zuma reads more like a battle plan for legal action by a third party.
In theory, those who complained to Madonsela about Nkandla in the first place, including the Democratic Alliance, have the legal standing to follow that plan. Should Zuma, having been warned of the implications in her letter, still fail to take Madonsela’s Nkandla findings into account, the complainants can turn to the courts. Ultimately, this would almost certainly end up in the Constitutional Court.
And it is clear that in Madonsela’s view, at least, Zuma would be hard-pressed to explain himself to the Constitutional Court should he fail to back down.
Last Thursday, Zuma’s response put in place the last legal requirement for such a challenge, shortly before the Economic Freedom Fighters disrupted Parliament in protest over what the party described was Zuma’s failure to answer the questions posed by Madonsela’s report.
Madonsela, in her letter sent on the same day, does not put words into Zuma’s mouth. She does not say his 20-page report constitutes a response only to her findings but refers also to the “public perception as reflected in recent media reports”.
Before Thursday’s Parliamentary session broke down, Zuma ended up saying exactly that.
“As I said in my answering the question, I have responded to the reports about Nkandla,” Zuma told the EFF. “The reports about Nkandla is not only the public protector … I have responded to all the reports as I am supposed to.”