Johannesburg – Lawyers for the Economic Freedom Fighters and Democratic Alliance on Tuesday argued in the Constitutional Court that President Jacob Zuma had flouted the law by trying to hold on to ill-gotten wealth in the form of improvements at his Nkandla home at taxpayer’s expense.
Advocate Wim Trengove, 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 Public Protector Thuli Madonsela’s directive that he pay back a portion of the R216 million spent on upgrading his home.
“He defied her in order to protect his ill-gotten gains… he defied her in order to hold on to wealth he improperly obtained,” Trengove told a full bench of the court.
In arguments later closely matched by Anton Katz for the DA, Trengove submitted that Zuma had therefore failed in his duty to uphold the constitution, and furthermore failed to live up to the ethical duties the supreme law places on his office. He pleaded that because Zuma found himself in breach of the constitution, the court had to hear the application as it had exclusive jurisdiction in the matter.
Refering to Madonsela’s report “Secure in Comfort”, Trengove said she 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 minister of police to determine whether or not 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.
Turning to the actions of a special ad hoc committee and the National Assembly who last year respectively drafted and rubber-stamped a report by the police minister which found that Zuma did not owe the state a cent as all the luxuries added to Nkandla were vital for security, Trengove said this too was unlawful.
“The ad hoc committee allocated itself the power to sit in judgment of the Public Protector,” he said.
“All of that is unlawful, they did not do what they had to do, which is 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: “Let me say that 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.
Katz brought into contention the Supreme Court of Appeal’s ruling in the Hlaudi Motsoeneng case late last year, which found that the Public Protector’s remedial action was binding of organs of state.
He called it a “game changer” and a compelling reason for the Constitutional Court to deal with the opposition parties’ applications against the president.
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.
African National Agency
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