Nkandla: Did Zuma flout the Constitution or make a mistake?
The concessions were many, and startling. Yes, the public protector can be the boss of the president, at least sometimes.
No, he won’t contest the right of the Economic Freedom Fighters and the Democratic Alliance to be heard before the country’s highest court.
After years of fighting, and sometimes fighting dirty, Jacob Zuma suddenly seemed to abandon the last shreds of his defence in the Nkandla scandal. On Tuesday, in a hearing of 344 minutes, his counsel told the Constitutional Court that there had been an “evolution” in Zuma’s thinking as the legal landscape changed. And so the major sticking points fell away and there was peaceable agreement – on many things. The parties still asked the Concourt to decide a number of crucial matters, some of them certainly crucial to Zuma’s legacy, others with perhaps more immediate consequences.
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.
What led to JZ’s change of heart?
The speed of it was dizzying, even for those in the inner circle.
“In the past few days the train has been moving too fast, almost leaving us behind,” said advocate William Mokhari, on behalf of Police Minister Nathi Nhleko.
The Economic Freedom Fighters were also left puzzled. “What we have is persistent conduct in breach of the Constitution for almost two years, and no explanation for it,” said their advocate, Wim Trengove.
“If the president had come forward today and said: ‘I am sorry: I had bad legal advice, I acted in accordance to the legal advice I had all along, and it was an error in good faith,’ that would have been a different matter. But you simply have silence.”
Perhaps, after almost two years of thinking otherwise, President Jacob Zuma had been convinced of the error of his ways when Corruption Watch filed papers in the matter just days before the hearing, Trengove joked.
The explanation, advocate Jeremy Gauntlett told the court on behalf of Zuma, was quite simple.
Up to October 2015 there was legitimate legal confusion about the powers of the public protector. When the Supreme Court of Appeal ruled four months ago (in a case relating to SABC chief Hlaudi Motsoeneng) that Madonsela’s findings are binding, that was the end of that.
Why, then, did Zuma refer to the remedial action Madonsela asked of him as “recommendations” as recently as last week? “That might have been through nostalgia or clerical inconsistency,” Gauntlett said.
That answer may explain a lingering scepticism, of which he complained: “Here, there is a continued suspicion that what the president is in some way proposing would have a gap here or entail a duck there.
“We accept that in the present case what [Madonsela] directed would be administrative action, which would stand and bind unless reviewed.
“I stress her words ‘in the present case’, because our concern is that one must not glibly equate what the public protector does as always entailing administrative action,” Gauntlett said.
“She may be asked to look into particular matters where she comes out with an advisory report and she says she’s horrified by what she’s seen in certain respects, and she would wonder if the department of education in Mpumalanga should not look at this or do the other. No suggested teeth at all.”
Who’d win a theoretical fight?
The Nkandla issue has not actually seen a stand-off between the National Assembly and the public protector, said advocate Lindi Nkosi-Thomas on behalf of the speaker, Baleka Mbete. “She does not order the National Assembly to do anything.” And so Parliament could not be said to have defied Thuli Madonsela and there was no reason to worry about who ranked where, legally.
That line of argument did not satisfy Chief Justice Mogoeng Mogoeng at all, leading to a long exchange. Nkosi-Thomas claimed Parliament had “at no stage” sought to nullify Madonsela’s findings, and that Parliament could not be expected to force the president to accept the findings because it is not an enforcer.
Various advocates argued that Madonsela’s office could not be seen as above or outside the law because Parliament could, as advocate Wim Trengove put it, “significantly” regulate her power.
The legislature, said advocate Carol Steinberg for Corruption Watch, can prescribe the kind of remedies the public protector may use. “Parliament is free … to regulate in any amount of detail the manner of her powers, as long as it doesn’t take that power away.”
Other aspects of the public protector’s powers have been tested in various courts, Nkosi-Thomas said, but how that office relates to Parliament had never had such “multistage judicial attention”, implying the court should hold back on deciding who the theoretical winner would be in a theoretical fight.
Counting the chickens
With the matter of whether Zuma should repay the state settled, thoughts turned to how much he should pay – or at least how that number should be arrived at.
And, said Wim Trengove for the Economic Freedom Fighters, despite a clear (and now unchallenged) report by Thuli Madonsela on Nkandla, “quite unexpectedly there is still some debate about what it is that she actually found”.
Madonsela had specified that Zuma should pay a to-be-determined percentage of the cost of five Nkandla upgrades: the visitors’ centre, the amphitheatre, the cattle kraal with chicken run, and the swimming pool. But before that list came the phrase “which include”.
“There should be no confusion whatsoever,” said advocate Gilbert Marcus on her behalf, “that the public protector has specified five upgrades which she has found do not constitute security upgrades, but that list is not exhaustive and the use of the word ‘includes’ is deliberate.”
Advocate Jeremy Gauntlett did not agree. “She ultimately ended up in the conclusion of saying there are five items I put one side of the line,” he said, saying paying for anything else would be sheer folly.