* This story has been updated
Cape Town - The Democratic Alliance on Wednesday launched a court challenge against Police Minister Nathi Nhleko’s report on the Nkandla security upgrade a day after the ANC muscled it through the National Assembly.
The party said the step was the next in a resolute battle to force President Jacob Zuma to comply with the Public Protector’s report and repay a percentage of the millions spent on the project.
“Court papers are being filed as we speak,” James Selfe, the chairman of the party’s federal executive, said on the steps of the Western Cape High Court. He predicted that the first part of the case would be heard around the middle of October.
DA leader Mmusi Maimane said the party was asking the court to declare that President Jacob Zuma’s failure to heed a directive from Public Protector Thuli Madonsela to reimburse the state was “manifestly irrational” and to set it aside on the grounds that it was unconstitutional and unlawful.
The official opposition was also arguing that it was unlawful of Zuma to designate a minister who serves at his pleasure to determine whether he should comply with Madonsela’s findings.
“To this end, we will also submit that Minister Nhleko’s report be declared unlawful and invalid, by its very existence,” Maimane said.
The DA named the Speaker of the National Assembly, Zuma, Nhleko and the Public Protector as respondents.
Maimane said the DA believed that Judge Ashton Schippers’s high court ruling last year - in which he held that the executive could not differ with the Public Protector’s findings without giving cogent reasons - supported its case.
The judgment has regularly been cited by both the opposition and the ruling party as vindicating their opposing positions on whether the chapter nine’s remedial action is binding on government.
In June, Schippers granted the SABC leave to appeal his judgment, saying it was unlikely to succeed in reversing his ruling on the facts of the case, in which the DA is challenging the appointment of Hlaudi Motsoeneng as chief operations officer of the public broadcaster, but that it was critical for democracy to have the Supreme Court of Appeal make a definitive pronouncement on the powers of the Public Protector.
Nhleko’s report directly contradicted Madonsela’s report and found that Zuma did not owe the taxpayer a cent because every contested feature added to his home, including a swimming pool, served a security function.
It was endorsed by the third parliamentary committee tasked with considering findings on Nkandla, and on Tuesday the National Assembly, in turn, approved the committee’s report by 298 votes to 93.
In the debate on it, ANC MP Francois Beukman argued that the committee could not call Madonsela as her report had been the subject of the second committee on Nkandla’s work. He added that he hoped that with the adoption of the latest report, the controversy on Nkandla would be considered closed.
“I think Francois Beukman owes his job to saying things like that. The fact is, if you look at the Public Protector’s remedial action, the President has failed to comply with that, therefore for them in Parliament they may have run through processes of the ad hoc committee etc, but here the court battle must continue,” said Maimane.
“So the matter is far from over … because if we lose this particular battle we will simply be sending a message to South Africans that an institution like the Public Protector is null and void.”
“We want to make sure that the President complies with the Public Protector’s recommendation.”
All opposition parties except the African People’s Convention opposed the adoption of the report by the National Assembly, but the DA launched the court action on its own. Selfe said this was done for the sake of speed, but other parties were welcome to align themselves with it.
The Economic Freedom Fighters, who made “pay back the money” a political catch phrase, boycotted the committee that signed off on the report, and has launched their own court challenge, but chose to approach the Constitutional Court directly. It criticised the DA for going to court, and for having taken part in the committee.
“Instead of joining the legally sound application by the EFF to the Constitutional court, which is the most sensible and responsible thing to do, the DA chose to lodge a parallel process to once more undermine all efforts to vigorously fight corruption and hold the executive accountable.”
Selfe said the DA had taken part in the committee because its lawyers had advised it to exhaust all other avenues before going to court.
The ANC accused the party of show-boating.
“We know too well that courts and police stations have now become fashionable places for media theatrics, where opposition parties attract a certain degree of media attention on the door steps of the courts and police stations than they would in their offices,” the office of ANC chief whip Stone Sizani said.
ANA