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Sat May 28 13:51:31 SAST 2016

JZ throws allies under the bus

Ernest Mabuza and Penwell Dlamini | 10 February, 2016 00:19

The walls came crumbling down on President Jacob Zuma and senior ANC members in cabinet and parliament.

One by one their counsel conceded before Constitutional Court justices that they were wrong to act against Public Protector Thuli Madonsela's report that found Zuma to have unduly benefited from non-security upgrades to his home.

In her report in 2014 titled "Secure in Comfort", Madonsela said some features included in the R246-million security upgrades to Zuma's Nkandla residence were not security features. These included a cattle kraal, chicken run, visitors' centre and pool.

First to concede was Zuma's counsel, Jeremy Gauntlett SC, who told the court that the president did not want to obstruct but bring an end to the Nkandla matter. Gauntlett said the Supreme Court of Appeal, in another case last year, had said that remedial action prescribed by the public protector was binding."It is not necessary for this court to replough the furrow," he said.

Advocate Lindi Nkosi-Thomas, for the Speaker of the National Assembly, capitulated as she tried to argue that Madonsela's report had to be scrutinised.

Chief Justice Mogoeng Mogoeng asked Nkosi-Thomas about the role of the National Assembly in holding Zuma accountable after Madonsela's findings instead of conducting their own investigation that sought to prove Madonsela wrong.

But Nkosi-Thomas argued that the public protector's remedial action without scrutiny would amount to dictatorship.

"The public protector cannot dictate to parliament what to do."

But the chief justice asked: "So it was open to parliament to effectively render the remedial actions of the public protector void?"

She later conceded: "Parliament took a wrong position."

Police Minister Nathi Nhleko further exposed Zuma's defence and how state institutions acted outside their mandates to set aside Madonsela's findings.

Representing Nhleko, advocate William Mokhari explained that, while Zuma had conceded and is to pay back a portion of the money, the minister was following instructions. The instruction was from Zuma and the National Assembly.

"The minister's hands were tied," he said.

Counsel for the Economic Freedom Fighters Wim Trengove SC said Zuma's capitulation and acknowledgement that the public protector's powers were binding was gratifying - but not enough.

Trengove made this remark as he responded to Zuma's undertaking to repay some of the money spent by the state in line with the public protector's report .

The undertaking came from Gauntlett, who only recently became involved in the two separate cases brought before the court by the EFF and DA.

The opposition parties' cases were heard together yesterday as they sought orders declaring failure by the president and National Assembly to comply with Madonsela's proposed remedial action was in breach of the constitution.

But Trengove insisted the EFF wanted the court to grant the relief it sought. He said the president capitulated only yesterday, while his clients had been demanding since September 2014 that he comply with the report.

"As far as the president is concerned, he has violated his duty to assist the public protector. This means the president has violated his duty to uphold his office. He has, for nearly two years, defied the public protector," Trengove said.

Trengove said the National Assembly had, for nearly two years, not called the president to account.

He said the EFF still sought three orders from the court, namely:

  • That the public protector has powers to take appropriate remedial action;
  • That the public protector's remedial actions were and remained binding on the president; and
  • That the president failed to implement directions of the public protector in breach of his duties.

Anton Katz SC for the DA said there was defiance against the public protector's findings on the part of the president, the National Assembly and the minister of police.

"This case goes far deeper than the question of the powers of the public protector. It goes to the systemic failure of the government and the National Assembly," he said.

Counsel for the public protector Gilbert Marcus SC said the public protector's remedial action was binding and enforceable unless set aside on review by a court of law.

He said to hold that the public protector's remedial action was not enforceable would render the institution toothless.

Constitutional law expert Pierre de Vos said Zuma placed parliament in a compromised position.

"The president obviously threw parliament under the bus ... it was impossible, after the president conceded, for the representative of parliament to come with a sound argument."

He said proceedings in the Constitutional Court raised questions about parliament's own understanding of its powers.

"The question that it raises is whether parliament has ever understood its proper role in our system of separation of powers, which is to hold the executive accountable. Why is it that they acted in a way they did, which seemed, to informed legal minds, not wise?"

He said: "Parliament, in terms of the constitution, has the discretion to impeach the president if he is in breach of the constitution."

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