Johannesburg - President Jacob Zuma’s hope that the Constitutional Court would find his Nkandla settlement offer acceptable and make it an order of the court was dealt a blow when Concourt told the parties to try to reach an agreement among themselves.
In a letter on Wednesday, the court directed the parties to decide on the matter by no later than 4pm on Friday.
“The settlement proposal is a matter for the parties to decide and calls for no directions from the court at this stage.
“It will be appreciated if the court were to be informed by no later than 4pm on February 5 whether any agreement has been reached between all the parties that will have an impact on the hearing of the matter on February 9,” read a letter signed off by Concourt’s senior registrar’s clerk, Magda Visagie.
UCT constitutional law Professor Pierre de Vos agreed the court could not “unilaterally impose an offer”. It could make it an order of the court only if the litigants in the case - the DA and EFF - accepted it.
That they had rejected the offer meant the hearing on Tuesday would have to proceed as set down, he said.
On Thursday morning, DA spokesman Samkelo Mgobozi said: “We’re applying our minds as to what the best course of action will be.”
The question of how much Zuma might end up having to pay also remains open, after he accepted that a Department of Public Works internal “apportionment” document, which originally stated an amount of R10.65 million for his personal account, should be considered in the process.
In a statement proposing “an end to the drawn-out legal controversy” over Public Protector Thuli Madonsela’s report on Nkandla, Zuma requested on Tuesday that the auditor-general and minister of finance determine the reasonable portion of the costs for him to repay for non-security upgrades at Nkandla.
The statement said Zuma had “maintained his willingness to contribute to any increase in the value of his property”, despite his long-held position that he would not pay as he had not requested the upgrades.
“It will now be for the court to decide if the offer is an appropriate basis for an order when the applications are argued,” it said.
But the DA was first out of the starting blocks in rejecting the offer, saying it was an attempt by Zuma to substitute his chosen process for that set out by Madonsela in her March 2014 report.
Madonsela had instructed Zuma to “take steps with the assistance of the National Treasury and the SAPS” to determine the reasonable costs of the non-security items and, having regard to the Public Works “apportionment document” which set out items for his account, repay a “reasonable percentage”.
But Zuma said in a letter to the registrar of the Constitutional Court that the DA had objected to the report on the matter by Police Minister Nathi Nhleko, which exonerated him, and it would therefore not be appropriate for the SAPS to be involved.
He believed this would be recognised by the parties, including the public protector.
The DA did not accept this argument, however.
Zuma’s proposal for the finance minister and auditor-general to conduct the exercise was “the latest attempt to establish a parallel process”, DA leader Mmusi Maimane said.
This was a reference to a Supreme Court of Appeal judgment in October which said organs of state could not try to substitute findings arrived at through a parallel process instituted by them for those of the public protector.
The DA would pursue the case to establish the extent of the public protector’s powers once and for all, Maimane said.
EFF spokesman Mbuyiseni Ndlozi also said the Constitutional Court hearing should proceed as the case was about more than Nkandla.
Madonsela welcomed Zuma’s “willingness to engage regarding compliance” with her remedial action, but said there were issues flowing from his proposal she and her legal team wished to consider.
She would respond to the Constitutional Court before commenting in public.
The ANC said in a statement yesterday it welcomed Zuma’s move, which would “bring closure”.
“Our support for the proposed solution does not imply President Zuma is responsible for wrongdoing,” it said.
Cosatu also welcomed the offer, saying it would go “a long way to assuring the nation the president is prepared to listen and take political responsibility as a leader”.
Meanwhile, Barnabas Xulu, a lawyer representing the Nkandla architect Minenhle Makhanya, said Zuma’s offer was a separate process from the lawsuit against his client.
Xulu said the interesting thing about this issue was the fact that the Treasury was now being asked to determine how much money should be paid, while it was the Treasury that had approved the money during construction.
Political Bureau and The Star