Cape Town – If President Jacob Zuma’s reversal on Nkandla brings a fresh twist to a stale plot, analysts and his opponents said on Wednesday it would not alter the outcome of either the legal battle over his private home or the local government elections.
The Democratic Alliance said it planned to proceed next week Tuesday with argument in the Constitutional Court application it has brought to force Zuma to comply with Public Protector Thuli Madonsela’s directive that he reimburse the state a reasonable sum for luxuries included in the R216 million upgrade of his homestead.
James Selfe, the chairman of the DA’s federal executive, noted that Zuma had made his settlement offer of payment in the unheard of manner of a letter to the registrar of the court, and the DA seems set to only formally respond to in its heads of argument, likely to be filed at the end of the week.
Speaking after an early morning meeting with the DA’s lawyers, headed by Anton Katz SC, Mmusi Maimane said the party would reject Zuma’s offer on the basis that it still did not comply with Madonsela’s report.
The president’s office seeks to introduce the Auditor-General as an arbiter, proposing that the sum be determined by him and the finance minister.
Said Maimane: “In fact, we contend that the president designating the Auditor-General to come to a determination as to how much he is liable is the latest attempt to establish a parallel process, for a fifth time.”
Constitutional law expert Pierre de Vos said this was a “mischievous” stretch as Zuma had tabled a settlement proposal, not issued an executive order, but it was unlikely, even if his opponents were to accept this, that the court could issue an order confirming it.
This was because Madonsela’s remedial action set out in her report “Secure in Comfort”, released in 2014, did not refer the matter to the Auditor-General. She had in fact stipulated that National Treasury should determine the due sum, with assistance from the police service.
“I would think that it is arguable whether it should do that or whether legally it is allowed to do that. Unless the Public Protector’s report was under review before the court, which it is not,” he said.
Zuma said he was seeking to introduce a neutral party, and to circumvent the opposition to one of the applicants to the involvement of the police in the calculation of the costs he must cover. It was a reference to the DA, who had in fact objected to Zuma’s move last year to designate Police Minister Nathi Nhleko to determine whether he owed the state any money for the additions to Nkandla.
The DA, who argued that Nhleko was not neutral and was not cast in this role by Madonsela, is likely to dismiss this argument as disingenous as it did Zuma’s statement that he has always been willing to reimburse a portion of the cost of the upgrade.
“That is laughable,” Maimane said.
He ventured that Zuma made the settlement offer in part to spare him the political embarrassment of having his State of the Nation address disrupted a second year in a row by calls to refund the taxpayer for Nkandla, in part because he realised he would lose in court.
Political commentator Justice Malala tweeted that Zuma’s climbdown from insisting he did not owe the state a cent — as Nhleko said in a report muscled through Parliament by the ANC — was the latest setback for a leader who found himself weakened in his own party. It followed, he noted, shortly after he was forced to reinstate Pravin Gordhan as finance minister amid an uproar over his axing of Nhlanla Nene, and party ranks voiced their discontent over the influence of his Gupta friends.
But academic and analyst Steven Friedman said if Zuma was clearly politically weakened, his settlement proposal was informed by the prospect of losing the case brought by the DA and the Economic Freedom Fighters, who were asking the Constitutional Court to force the president to uphold the Public Protector’s powers and directives.
“He is weaker within the party but the obvious explanation is that his lawyer told him he has a weak case that he is likely to lose,” Friedman said, adding that the Supreme Court of Appeal’s ruling in the Hlaudi Motsoeneng case confirming the binding force of Madonsela’s reports augured badly for Zuma.
Maimane said the DA waged its legal battle to force the SABC to implement Madonsela’s adverse findings against its chief operating officer with a clear view to the Zuma case.
“We built the case against Motsoeneng knowing that if you build case law you can go with that to the Constitutional Court.”
De Vos noted that the Constitutional Court was not strictly bound by the SCA’s ruling but that Zuma’s lawyers probaby knew it was likely to confirm its findings.
“The president’s only chance would be that the Constitutional Court refuses to hear the case because it argues that this is not a case in which direct access should be granted,” de Vos added.
He said Zuma’s proposal would make little difference to the course of the case if it were rejected by the opposition, but merely allow him to claim willingness to honour his constitutional obligations.
Should the highest court deny the DA and EFF direct access on the matter, de Vos said they were then likely to turn to the high court, which was bound by the SCA ruling.
“So the president can only delay his agony, not escape it,” he said.
Cautioning that fortunes in a court of law were never certain, Friedman said whether Zuma won or lost would not impact on the ANC’s performance in the upcoming local government polls.
“Ninety-nine percent of people have already made up their minds either way on Nkandla and the ANC’s prospects are not going to be altered by whether he wins or loses in court.”
African News Agency
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