While President Jacob Zuma was debating ANC policy this week, the Democratic Alliance and the Economic Freedom Fighters (EFF) were pushing two different courts to ensure that he was held to account. Each partyseparately argued that it was vital that an example be made of him.
“If we let misconduct and abuse of power slide, we create the foundation for a weak Constitution which serves the powerful, not the people, and will ultimately collapse,” said EFF counsel Tembeka Ngcukaitobi in heads of argument filed in the Constitutional Court last Friday.
“Holding back on the prosecution of the powerful, in the face of compelling evidence, would be a radical departure” for South Africa, said a DA counsel, Sean Rosenberg SC, in his argument, filed in the Supreme Court of Appeal on Tuesday.
The EFF wants the Constitutional Court to force Parliament to convene an inquiry into whether Zuma lied to it during the course of the Nkandla scandal, a process that could lead to his impeachment.
The DA, in a separate case, is opposing bids by Zuma and the National Prosecuting Authority (NPA) to overturn a high court order that opened Zuma up to prosecution for corruption again. This is the latest instalment in the marathon “spy tapes” litigation over the 2009 decision to drop corruption charges against Zuma.
“The executive will only be incentivised to tell the truth if there are consequences when it does not,” the EFF told the Constitutional Court.
And simply repaying the state R7.8‑million, as Zuma had done, is not enough, the party held.
“If just paying back the money absolved the president of further consequences, there would be little incentive on the executive not to fleece the public purse.
“The only consequence would be that, if the person was caught, they would have to repay the money. It would always be worth the risk to steal money from the state.”
The EFF has carefully not asked the Constitutional Court to find that Zuma actively abused state resources, or to find that he intentionally misled Parliament when he said his family was not benefiting from state spending at Nkandla.
Nor does it want the highest court in the land to find that he “spent public money on further investigations solely to protect his ill-gotten gains”, as it alleges.
Instead, it has asked the court to make Parliament look into those allegations and hold an inquiry that would amount to a public grilling.
The inquiry, the EFF said, must allow for “limited but meaningful questioning” of witnesses, including Zuma, by all members of its committee, and membership must be multi-party.
The inquiry must be held in public, the EFF maintained, and must allow representations by the public.
Unlike a vote of no confidence, the EFF said, the Nkandla inquiry will first have to make Zuma put forward his version of events, something he has never done, then decide what rules he breached, and only then consider whether he should be impeached.
The DA, meanwhile, urged the appeal court to dismiss with costs Zuma and the NPA’s applications to appeal a high court decision that set aside the decision to discontinue Zuma’s prosecution relating to corruption.
The high court found that decision to have been irrational, and that Zuma should face charges.
The NPA has consistently held that political shenanigans about the timing of his indictment – shortly before Zuma was elected ANC president in 2007 – meant its reputation would be tarnished if his prosecution had not been discontinued.
But when then NPA head Mokotedi Mpshe first came to that conclusion, the DA said this week, his “decision was clouded by emotion, unsubstantiated facts, an inadequate investigation, confusion about his own role” and had various legal problems.
Neither Zuma nor the NPA had shown otherwise, the DA argued.
It added that the NPA should also have taken into consideration that by its decision not to prosecute, “the view formed by many people would be that the politically powerful and connected could use technicalities to escape prosecution”.