Cape Town - Obscured in the fury of Thursday’s Q&A session with President Jacob Zuma was a hint about his legal strategy in dealing with the public protector’s report.
The assumption has been that, having passed the Nkandla parcel to Parliament and the minister of police without himself having responded meaningfully to Public Protector Thuli Madonsela’s report, as he is legally required to do, Zuma intends leaving it to them to shield him from responsibility.
The minister’s report was adopted this week by the ad hoc committee dealing with it, opening the way for Parliament to lend its weight to the clean-up operation.
The EFF filed a notice of motion with the Constitutional Court on Friday, saying the National Assembly had failed its constitutional duty to hold Zuma to account.
The other opposition parties, which chose, unlike the EFF, to participate in the ad hoc committee, said they would also be mounting a legal challenge on the grounds that, among other things, Zuma had tried to substitute Police Minister Nathi Nhleko’s report for that of the public protector, an attempt that was unconstitutional.
These approaches rely in part on the Western Cape High Court judgment last year in the DA’s challenge of the appointment by the SABC of Hlaudi Motsoeneng as its chief operating officer. Motsoeneng was appointed in defiance of Madonsela’s instruction that he be suspended and face a disciplinary inquiry.
Judge Ashton Schippers found that while the public protector’s remedial actions were not binding, they could not be ignored. Any organ of state that rejected them must first engage with the public protector and, failing their reaching an agreement, must provide cogent reasons for doing so.
In Zuma’s case, the opposition parties argue that he has not engaged the public protector on his reasons for ignoring her remedial actions, nor has he offered reasons for doing .
Professor Pierre de Vos, a constitutional law scholar at UCT, has argued that because Zuma, as head of the executive, is responsible under the constitution and the Executive Members Ethics Act for dealing with breaches of the ethics code, upon a finding by the public protector’s office, the only body empowered to investigate such breaches, he is obliged to respond to Madonsela’s findings.
Neither Parliament nor the police minister can assume this responsibility.
On these grounds the police minister’s report and the work of the ad hoc committee have no legal standing.
De Vos said the EFF approach would require the Constitutional Court to make an assessment of a political process – Parliament’s dealings with the executive. However, framing the question as the ad hoc committee process being an unlawful attempt to review and set aside the findings and remedial actions of the public protector was “a very strong argument”.
Zuma suggested on Thursday he was not done. “I will respond further to the debate around this matter once all processes have been concluded,” he said.
This raises the possibility that his formal response to Madonsela is yet to come.
Professor Mtende Mhango, of the Wits School of Law, said Zuma could use the parliamentary process and Nhleko’s report as the basis for providing the “cogent reasons” required for his rejection of Madonsela’s remedial action.
“I get the sense that’s what he’s eventually going to do. He could say, ‘On the basis of this report, I think there are cogent reasons or rational reasons for why I’m not going to pay back the money’.”
This would potentially remove the opposition argument that Zuma had not responded to Madonsela.
De Vos said it could be argued that the president had made his decision not to implement the remedial actions when he submitted his own report to Parliament, in which he asked Nhleko to evaluate his possible liability for costs.
Political Bureau