A little more than a month after the Constitutional Court heard arguments in the Economic Freedom Fighters’ and the Democratic Alliance’s application for an order that President Jacob Zuma repay some of the R246-million spent on his Nkandla home, the court is ready to hand down judgment.
Today’s judgment is expected to have a number of facets to it.
The EFF and the DA wanted Zuma to pay back a portion of the money spent on non-security upgrades to his homestead.
A few days before the hearing in February, Zuma sent a letter to the court’s registrar to suggest that it order the Auditor General and finance minister to determine how much he should repay for non-security features at Nkandla.
The Constitutional Court was expected to make a final order on this.
The opposition parties wanted the court to rule on whether Public Protector Thuli Madonsela’s remedial action, set out in her March 2014 report, Secure in Comfort, was binding.
Ambit of Public Protector’s powers
During the hearing on February 9, Madonsela’s lawyer argued about the nature and ambit of her powers and the legal effect of her remedial action.
Madonsela stood by the remedial action set out in her report. But she agreed it was no longer appropriate for the police to help determine the reasonable costs of non-security features.
Jeremy Gauntlett, for Zuma, argued that the Nkandla saga had “traumatised the nation”, which was why he had made his proposal regarding the Auditor General and the Treasury.
He claimed the Public Protector Act was a “statutory curiosity” because it did not elaborate what had to be done regarding remedial action.
Zuma accepted that Madonsela wanted certain things done, but differed on how these had to be done, he added.
Mbete: Parliament took ‘wrong position’
Gauntlett put the blame for the fiasco squarely on the shoulders of the Department of Public Works and said Police Minister Nathi Nhleko’s report meant nothing. Nhleko, in his report, found all the features built at Nkandla were security-related and Zuma was thus not liable to pay for any of them.
The EFF wanted the Constitutional Court to find that Zuma breached his oath of office and constitutional duties by ignoring the Public Protector’s remedial action.
Gauntlett argued it was a “dangerous year” and warned that if the Constitutional Court ruled that Zuma did breach his oath of office, opposition parties could use it to have him impeached.
Wim Trengove, for the EFF, said the National Assembly violated its constitutional obligations by not holding the president and Cabinet to account.
The judges asked Speaker Baleka Mbete’s lawyer, Lindi Nkosi-Thomas, if the National Assembly had erred in its approach to Madonsela’s remedial action.
“Parliament took a wrong position,” she conceded.
DA: Ruling will mark a ‘seminal moment’ for South Africa’s democracy
UPDATE: Chairperson of the DA’s Federal Executive, James Selfe, said the Constitutional Court “will finally provide legal certainty about the Public Protector’s powers”.
Last month, the DA argued that Zuma’s failure to “engage rationally” with the Public Protector’s findings and remedial action pertaining to him was “manifestly irrational, illegal and unconstitutional”.
Selfie said: “We furthermore contend that the President’s decision to substitute the remedial action ordered by the Public Protector with a determination by the Police Minister, SIU or Parliament on whether he was liable for any of the costs was illegal and unconstitutional from the very outset”.
He said legal precedent at present, as established by the Supreme Court of Appeal, was very clear that “an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to the of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings taken by the Public Protector”.
– News24 and African News Agency. Edited by Thalia Holmes