President Jacob Zuma’s political survival, increasingly threatened by dissension in his own party — as demonstrated by an unprecedented splintering of the ANC caucus during the vote of no confidence in Parliament this week — will be further tested in the coming months as court cases questioning his fitness to hold office pile up.
How the courts will rule in three separate cases involving the embattled Zuma will go some way towards establishing whether he will see out his second term in office or be impeached — with the possibility of a prison term also looming over his head.
On September 5 the Constitutional Court will hear arguments by opposition parties, including the Economic Freedom Fighters, the United Democratic Movement and the Congress of the People, to “trigger” a parliamentary investigation into the president’s role in the Nkandla scandal and whether he lied to Parliament about it. If successful, the case may set off a chain of events that could lead to the eventual impeachment of the president.
The matter relates to former public protector Thuli Madonsela’s findings in the Secure in Comfort report that Zuma and his family had improperly benefited from the about R250‑million worth of state-funded upgrades to his personal home. It includes a 2016 Constitutional Court ruling that found the president had acted unconstitutionally in not adhering to the remedial action proposed by Madonsela, including paying back portions of the money spent on Nkandla.
Zuma had initially told Parliament that Madonsela’s recommendations were not binding and both he and the National Assembly set up committees that absolved him of any duty to repay the money — which the Constitutional Court deemed unconstitutional because it second-guessed the public protector.
Zuma subsequently paid back R7.8‑million of the Nkandla costs after the court’s ruling.
The opposition parties claim Parliament, likewise, acted unconstitutionally by not investigating the president’s actions and holding him to account when he was found to have breached his oath of office.
In an affidavit submitted to the court, EFF leader Julius Malema describes Parliament’s inertia following the Constitutional Court judgment as an attempt to “lie low and play possum in the light of the clear and unequivocal statements of the Constitutional Court that the president indeed violated the Constitution and/or breached his oath of office”.
The opposition also claims that Madonsela’s findings that the president and his family “improperly benefited” from the upgrades, and that Zuma should have been aware of the spiralling costs to the state, directly contradict his statements to Parliament.
In November 2012 Zuma told Parliament that “I am still paying a bond on the first phase of my [Nkandla] home … I am still paying a bond to this day.” He reiterated that “all the buildings and every room we use in the residence was built by ourselves as a family, and not by government”.
In Parliament, Zuma went on to make the distinction between the work to his home “initiated” by himself and “security enhancements undertaken by government”, claiming to have little knowledge of their costs and nature.
Madonsela’s report, however, noted that there were 16 deviations from the security measures suggested by the police. Several upgrades should not have been implemented because they did not fall within the ambit of minimum security standards or police evaluation reports on Nkandla, she said, and many were “unconscionable, excessive and caused a misappropriation of public funds”.
The government departments involved in the Nkandla upgrades “failed dismally” in following proper constitutional and administrative procedures, Madonsela found. She also found that Zuma “tacitly accepted” the upgrades to his private residence and that he was kept abreast of the extent and progress of the upgrades at all material times.
The opposition parties want the Constitutional Court to direct National Assembly speaker Baleka Mbete to convene an ad hoc parliamentary committee to investigate Zuma’s conduct and decide whether he is guilty of offences that would warrant Parliament impeaching him.
They also ask the court to give Mbete 30 days in which to report back to it on the steps she has taken to implement this.
This request suggests that even though the initial salvoes in the ongoing war against Zuma will be fought in the courts, Parliament remains a battleground of increasing importance — and it is in these trenches where Zuma is losing command.
On Tuesday Zuma narrowly survived a vote of no confidence against him. It is estimated as many as 30 of his own party’s MPs voted against him in an unprecedented move.
Even those MPs whose careers are apparently wedded to that of the president appeared to be breaking ranks: the Mail & Guardian observed a member of Zuma’s Cabinet, who was installed when he first took office in 2009, abstaining from the vote — one of nine abstentions, of which eight were potentially from the ruling party.
A formerly supine Parliament appears to be growing a backbone and Zuma supporters will have to ensure that they are included in any ad hoc committee that Mbete may be compelled by the courts to set up. Depending on whether or not the ANC purges those MPs thought to have voted against Zuma, many of them may then be called on to vote to impeach the president — a two-thirds majority would be required to chuck Zuma out of government without any benefits.
Ten days after the Constitutional Court case is heard, the Supreme Court of Appeal will hear Zuma’s argument about why the North Gauteng High Court erred in ruling that 783 arms deal-related charges of fraud, corruption and racketeering against him should be reinstated. Amid a public outcry, the charges were dropped months before Zuma assumed the presidency in 2009.
If the reviews brought by Zuma and the National Prosecuting Authority are unsuccessful in the appellate court, it will certainly lead to an appeal for a Constitutional Court review, which, if also unsuccessful, may lead to jail time for Zuma.
In October, the North Gauteng High Court will hear Zuma’s application to review Madonsela’s State of Capture report recommendation that Chief Justice Mogoeng Mogoeng appoint a judge to head an inquiry into the extent and nature of state capture.
The president is arguing that Madonsela’s recommendation is unconstitutional because it trespasses on the separation of powers doctrine and his own powers to appoint commissions of inquiry.
Supreme Court of Appeal Judge Willie Seriti, the president’s choice to head the arms deal inquiry that was ordered by the Constitutional Court in 2011, was roundly criticised for heading an obfuscatory whitewash. Madonsela reasoned that, to obviate a repeat, and considering that Zuma himself would be the subject of any such probe, Mogoeng should appoint the judge to head an inquiry into state capture.
Following the vote of no confidence on Tuesday, the ANC’s chief whip, Jackson Mthembu, told the M&G that the ruling party needed to remain sensitive to the various factors, and to the allegations of state capture levelled at the executive and officials at state-owned enterprises that had led to both the vote and the result.
“These allegations of state capture must come before Parliament and MPs must ensure oversight and accountability — that is our job,” said Mthembu.
The battle lines have been drawn in the courts and in Parliament. An eternal survivor, Zuma may be a lame-duck president but, as he has previously demonstrated, he is rarely a sitting duck.