Johannesburg - In an extraordinary string of concessions, President Jacob Zuma’s lawyer told the Constitutional Court on Tuesday that he accepted not only that the public protector’s findings against him in the Nkandla scandal were binding, but that the police minister’s conflicting report on the subject was meaningless.
“We accept that the president is required to carry out remedial action. The public protector’s report has to be complied with,” Jeremy Gauntlett told the court.
Zuma also placed no reliance on Police Minister Nathi Nhleko’s controversial Nkandla parallel report that found he did not owe the state a cent for luxuries added to his house, notably a swimming pool and cattle kraal, he said. That report was driven through Parliament by the ANC majority, and prompted opposition parties to go to court to enforce Madonsela’s findings.
Chief Justice Mogoeng Mogoeng asked what part of the EFF and DA’s arguments the president did not agree with, given the concessions.
Gauntlett replied there was recurring “flirtation” in arguments by the opposition parties and Madonsela’s lawyer that the benefits accrued to Zuma went well beyond the five items Madonsela flagged as non-security items.
This list of five, which included the swimming pool and kraal, were the only items Madonsela had sought to hold Zuma liable for in her report “Secure in Comfort”.
Gauntlett also took issue with inferences by lawyers acting for the EFF and DA that Zuma had acted in bad faith when he ignored Madonsela’ directives. They had argued Zuma had flouted the law by trying to hold on to ill-gotten wealth in the form of improvements at his Nkandla home at the taxpayer’s expense.
Wim Trengove SC, for the EFF, painted a picture of a president who flagrantly bent the rules to protect his private interests, then late in the day realised he was on shaky legal ground and offered to heed Madonsela’s directive that he pay back a portion of the R216 million spent on upgrading his home.
By so doing, Zuma had violated the Constitution and was in breach of his oath of office. “He defied her to protect his ill-gotten gains... to hold on to wealth he improperly obtained,” Trengove said.
Zuma endured a chastening rout before a full bench of the Constitution Court for his refusal to pay back the money. Trengove led the onslaught, accusing him of wilfully defying Madonsela’s report.
Anton Katz, for the DA argued that Zuma and his family benefited from R240m spent on Nkandla, indicating an abuse of power.
“When one family benefits from such an abuse of resources, it is a breach of the rule of law. There has been an abuse of public money for the benefit of one family... 100 000 people could have lived off that money (R240 million),” Katz said.
The DA did not find any evidence that Madonsela acted incorrectly or outside of her powers with her recommendations on Nkandla.
Zuma had to take the responsibility for attempts by members of the National Assembly to block their constitutional duties, Katz added.
Trengove submitted Zuma had failed in his duty to uphold the Constitution or live up to the ethical duties the law places on his office.
Trengove said Madonsela had left no doubt in her findings that certain luxuries were added to the property in violation of the law.
The president had therefore been wrong to designate the police minister to determine whether he needed to reimburse the state.
Zuma also made a clear mistake when he noted, in correspondence to Parliament in August 2014, that he did not consider Madonsela’s directives to be binding.
Trengove said that at some point last year, Zuma appeared to have a change of heart, reflected in his written submission to court, and accepted that in fact the chapter nine’s remedial actions had binding power. It followed after Corruption Watch submitted heads of argument to the court, in which it advanced this position. “Corruption Watch may have persuaded the president that he was wrong,” he added.
The special ad hoc committee and the National Assembly that last year respectively drafted and rubber-stamped a report by the police minister which found Zuma did not owe the state a cent as all the Nkandla luxuries were vital for security, too was unlawful, Trengove said. “The ad hoc committee allocated itself the power to sit in judgment of the protector. All of that is unlawful, they did not do what they had to do - hold the president to account.”
Chief Justice Mogoeng Mogoeng asked the advocate whether he was arguing that MPs had done this deliberately to protect Zuma or had simply misunderstood the law.
Trengove responded: “Some of us have our suspicions about that.”
However, he said, for the sake of argument he would assume that it was a bona fide mistake in law.
Madonsela and advocacy organisation Corruption Watch have been admitted as friends of the court. Gilbert Marcus, for Madonsela, also argued that Zuma had made a mistake in law.
The EFF and the DA, in separate applications, have asked the Constitutional Court to rule that the failure to comply with the remedial action set out by Madonsela constituted a breach of constitutional duties by Zuma and the National Assembly.
With a nod to the upcoming local government elections, Gauntlett said this could put the president at risk of impeachment. “This is a delicate time in a dangerous year,” Gauntlett told the 11 justices.
“It will be wrong if this court makes a ruling which may result in a call for impeachment. The DA and EFF may try to impeach. Some have argued the president was defiant - but it was an error in law,” he said.
Judgment has been reserved.
Pretoria News and ANA