Five reasons why the ConCourt's Nkandla ruling is important for SA

2016-03-31 07:31
(Mpho Raborife, News24)

(Mpho Raborife, News24)

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'The ANC will have to come to its proper senses' - Malema on pending ConCourt Nkandla ruling

2016-03-30 21:21

Speaking after graduating with a BA from Unisa, EFF leader Julius Malema spoke about Thursday's anticipated Constitutional Court ruling on Nkandla.WATCH

Johannesburg – As the Constitutional Court rules on the Nkandla matter on Thursday, South Africans will wait with bated breath to see what ramifications the judgment will have on President Jacob Zuma's political career.

The case relates to non-security upgrades – paid for by the taxpayer – to Zuma's Nkandla homestead in KwaZulu-Natal.

The EFF took Zuma and National Assembly Speaker Baleka Mbete to court after Zuma did not pay back a portion of the money for the upgrades, as recommended by Public Protector Thuli Madonsela in her Secure in Comfort report on the matter.

The DA later joined the case.

They had applied for an order clarifying the powers of the Public Protector, and that Zuma be ordered to pay back some of the money spent on non-security upgrades such as the swimming pool, initially called a “fire pool”, chicken run and a cattle kraal.

Here are five reasons the judgment – whether it's in Zuma's favour or not – is important for South Africa:

1. It could lay the foundation for a possible impeachment of Zuma

Should the Constitutional Court find Zuma was in breach of his constitutional duties, which constitutional law expert Pierre de Vos said he conceded before the court by saying the protector’s findings and remedial action were binding, this could possibly pave the way for his impeachment.

However, the Constitutional Court itself cannot impeach a president as that power resides with the National Assembly in Parliament.

In his blog, Constitutionally Speaking, De Vos said on Wednesday the Constitutional Court is permitted to declare invalid unconstitutional acts by the legislature or the president and to order remedial action to correct the unconstitutionality.

"If it found a breach, it may therefore order the president to comply with the Public Protector’s report and to pay back the money spent on non-security related renovations at his private home. It may also order the NA (National Assembly) to hold the President accountable based on the findings of the Public Protector’s report," he wrote.

Zuma's lawyer, Jeremy Gauntlett, specifically brought up the issue of impeachment when he told the Constitutional Court in February: "It will be wrong if this court makes a ruling which may result in a call for impeachment. The DA and EFF may try to impeach".

The deciding factor in a possible impeachment would be the ANC, which has a majority in Parliament. Previous attempts by the DA for a vote of no confidence in Zuma have failed.

De Vos said, "When making such a decision the governing party will have to decide whether they will be punished by voters if they fail to act. If the governing party believes it will not be punished by voters if it does not act, it would be perfectly within its powers not to act at all – regardless of how serious the findings of the Constitutional Court may be."

2. The ANC could recall Zuma

Following the recent controversy surrounding Zuma's allies, the influential Gupta family, and claims by Deputy Finance Minister Mcebisi Jonas and former ANC MP, Vytjie Mentor, that the Guptas offered them top Cabinet posts, several voices in the ANC have called for Zuma's removal.

Some said the ANC was merely waiting for the ConCourt to hand down its ruling before acting against Zuma.

A senior ANC source told News24 earlier in March, "They [the ANC] won't do anything until the ConCourt judgment... They would collapse if they recalled him before the elections. But the ConCourt judgment would change the game."

De Vos said in his blog, "Whatever the Constitutional Court judgment contains, it is the leadership of the ANC (and not the EFF, DA or ANC members of the National Assembly) that will decide what political action – if any – should be taken against the president.

"This decision will partly be influenced by how the voters react. If the party leadership become convinced that it stands to lose serious ground in the local government elections or that it stands to lose its overall majority at the next national elections because of the Nkandla scandal, it may well be persuaded to act. If it believes voters will not punish the governing party for what its president may have done, it may not act."

3. The ConCourt could find that the National Assembly had a duty to comply with Madonsela's findings

In February Speaker Balete Mbete's lawyer, Lindi Nkosi-Thomas, admitted before the Constitutional Court that Parliament was wrong in the way it dealt with the Nkandla matter.

The bumbling advocate's demeanour and comments even amused Madonsela who laughed when Nkosi-Thomas made a comment about her powers.

Nkosi-Thomas was asked if the National Assembly had erred in how it approached the remedial action recommended by Madonsela in her report on the upgrades to Zuma's private home in Nkandla.

"Did the National Assembly fail to exercise oversight of the president as a member of executive?" Justice Edwin Cameron asked.

After mumbling, Nkosi-Thomas conceded, "Parliament took a wrong position."

Deputy Chief Justice Dikgang Moseneke sought clarity from her.

"Did the National Assembly err in the manner in which it approached the remedial action taken by the Public Protector in the view that accountability kicks in on the side of the executive? Or are you leaving the matter in our hands?" he asked.

"I haven't been instructed on that issue,” she responded.

De Vos said given Zuma's concessions, and the "torrid time" Nkosi-Thomas faced in the ConCourt when she appeared to argue that the National Assembly was above the Constitution and the law, "it would not be surprising if the Constitutional Court finds that both the President and the NA had a duty to comply with the findings and remedial action imposed by the Public Protector and did not do so".

4. There could be more clarity on the powers of the Public Protector

One of the central issues in this case deals with the powers of the Office of the Public Protector, and how binding and enforceable its recommendations are.

This comes after an ongoing onslaught on the public protector's power, following recommendations in Madonsela's report, Secure in Comfort, that Zuma pay back a portion of the money spent on the upgrades.

Zuma's lawyer Gauntlett conceded in February that the protector's findings and remedial actions were binding.

The EFF wanted the court to order that the Public Protector has powers to take remedial action, that these actions were binding on the president and that the president failed to implement the public protector's directions, in breach of his duties.

In October last year the Supreme Court of Appeal clarified the role of the Office of the Public Protector, saying that its findings cannot be ignored.

In its ruling dismissing an appeal against part of a Western Cape High Court judgment that SABC COO Hlaudi Motsoeneng be suspended pending a disciplinary inquiry against him, the SCA dismissed part of the same judgment which said the Public Protector's findings were not binding.

"In arriving at this conclusion... the SCA rejected the reasoning of the court... which had concluded that the directions of the Public Protector were not ‘binding and enforceable’ in the same way as a court order."

The SCA's ruling said the Office of the Public Protector, like all Chapter Nine institutions, was a "vulnerable one".

"Our constitutional compact demands that remedial action taken by the Public Protector should not be ignored. State institutions are obliged to heed the principles of co-operative governance as prescribed by [section] 41 of the Constitution."

It said an "affected person" or institution aggrieved by a Public Protector finding could, in "appropriate circumstances" challenge it by way of a review application.

"Absent a review application, however, such person is not entitled to simply ignore the findings, decision or remedial action taken by the Public Protector."

Madonsela's report recommended action against Motsoeneng for receiving exorbitant salary increases and forging his matric certificate. Motsoeneng, however, stayed in his job.

5. Zuma could dodge another bullet aimed at his career

Before the matter was heard by the ConCourt in February, Zuma proposed that it appoint the auditor general and minister of finance to determine how much he should pay for certain upgrades to his Nkandla home.

Zuma supplied a draft order stating this, and it is up to the Constitutional Court on Thursday to make it a final order.

It is entirely possible that Zuma will withstand a possible impeachment and will remain as ANC president and president of South Africa, much to the chagrin of opposition parties and some in the ruling party who want him dethroned.

Zuma has apparently survived the recent Gupta scandal, but has also weathered corruption charges (which were dropped), rape charges (which were dismissed), an uproar over his admission of showering after having unprotected sex with an HIV positive woman as a way to prevent infection, last year's debacle over the change of finance ministers, among other allegations and controversies.

It is entirely possible that paying back the money will keep Zuma's political career afloat.

Read more on:    jacob zuma  |  bloemfontein  |  nkandla upgrade

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