Zuma’s lawyers admit Public Protector report was binding – As it happened

2016-02-09 16:30

In a day of high drama, President Jacob Zuma's lawyer Jeremy Gauntlett conceded that the Public Protector's findings into security upgrades at Nkandla were in fact binding, he told the Constitutional Court.


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Last Updated at 15:20
09 Feb 16:43
Rumours of Jacob Zuma losing his Presidency are hugely exaggerated, says political analyst Moeletsi Mbeki.

09 Feb 16:40

Mokhari: “Once this court accepts the proposal from the president then it does not have to entertain the minister's report. “All we want to say in so far as the court having not to deal with direct access.”

With that, Mokhari, advocate for Police Minister Nathi Nhleko, concludes.

A 15-minute tea break commences.

News24 will be closing the Live Update, but will still report regular articles from the last session at the Constitutional Court.

Read on how a day of high drama unfolded in Johannesburg...

09 Feb 16:32

Moseneke: "So a cabinet minister's acted unlawfully? I don't think you want to repeat that lightly."

Mokhari says he's not saying that. Nhleko was carrying out instruction unless it can show he was deviating from instruction.

09 Feb 16:30
Mokhari says: "What we know as a matter of law, once he receives instruction from a body which has authority over him, he must carry it out."

09 Feb 16:29

Mogoeng: “I am correct in saying you not here to make any submissions.... on the mandate given by the president to the minister.

"You are here only to explain how he, the minister got involved?"

Mokhari, again, says that is correct.

09 Feb 16:27

“The functionary vested with power to deal with security was police, but there seemed to be no contention that the instruction came from both the president and the National Assembly," says Mokhari.

Mogoeng: “Let me understand, your instructions from minister of police is simply to explain how you got involved and not make any submissions on validity of any of the mandates you were given?”

Mokhari says that is correct.

09 Feb 16:26

Justice Nkabinde says it seems to be clear that it was the instruction by the President and not the National Assembly.

Mokhari says yes she is correct, but instruction was also given by the National Assembly.

09 Feb 16:25

“The minister's hands were tied,” Mokhari continues.

“He had to make sure as part of executive he had to perform the duty given to him by the National Assembly.

“There was no suggestion that the instruction given to him he did contrary to that.”

Moseneke asks: “Should we uphold the resolution of the National Assembly?”

“Reports [ad hoc committee and police report] become water under the bridge,” he responds.

Justice Jafta asks: “Was the report by the minister at the behest of the president or the National Assembly?” Mokhari says both.

“But he executed instruction of the National Assembly... but was from both [Zuma and NA].”

09 Feb 16:21

Moseneke: "Are you asking if the minister's report was procured within the law?"

Mokhari: "Legality is the issue of authority. I can't make that submission on behalf of the National Assembly, but legality of minister's report depends on that."

09 Feb 16:19

“On 2 April 2014, a letter from the president to speaker was sent which triggered the process of the police minister's report.”

Mokhari asks whether the National Assembly had the power to instruct the minister... to go and investigate with assistance of security experts and put a report together. This was instruction given to minister by the National Assembly.

“I'm not going to debate what was in the mind of the National Assembly. Specific instructions were given for what we had to do and that is what we have done. The one who gave us the instruction, did he have the power to do so?,” asks Mokhari.

09 Feb 16:15

In past two days, train has been moving too fast, says Mokhari.

“I’ll be dealing with the report of the Police Minister [Nhelko].”

“What we know now is that the president has committed to pay a reasonable portion of cost.

“Minister of police should not be party.

“I'm going to simply highlight certain topics I would like to deal with to highlight stance of the minister from the beginning.”

09 Feb 16:01

She looks relieved to conclude.

Advocate William Mokhari now up for the SA Police Service.

09 Feb 15:53

Moseneke continues to explain that Nkosi-Thomas has made several submissions that contradict each other.

He asks for one final submission.

Nkosi-Thomas replies: “Parliament when it received the report acted in its powers of scrutiny. It felt it needed to apply its mind.

“It considered all the reports before it. In doing that, it considered the law at the time.

“It sourced senior counsel's opinion and the Western Cape high court judgment before it was overturned. It sought assistance from security experts.

“It considered their report and adopted it [over the Public Protector’s report]."

09 Feb 15:50
"I haven't been instructed on that issue," Nkosi-Thomas responds exasperated.

09 Feb 15:49

Moseneke seeks clarity: "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?"

09 Feb 15:47

After mumbling, Nkosi-Thomas eventually concedes: "Parliament took a wrong position."

Moseneke asks what should be done with Nhleko's report?

09 Feb 15:47

Justice Cameron asks that if Jacob Zuma's lawyers say that they erred in law, is it not true that the National Assembly did the same?

"Did the National Assembly fail to exercise oversight of the President as a member of Executive?"

09 Feb 15:45

"On the facts of this case, Parliament through its ad hoc committee gave consideration as to whether the Public Protectors powers are binding or not.

"It found that it is not. It took that into account and acted accordingly."

09 Feb 15:43

“They did not seek to nullify the Public Protector report," Nkosi-Thomas says.

“The submission is that the process must be scrutinised.

“When Parliament is satisfied there has been a breach, it imposes sanctions.”

09 Feb 15:41

“They had to investigate and reach a conclusion,” she answers.

She pauses for 15 seconds, struggling to find words.

09 Feb 15:41
Mogoeng interjects: “So it was open to Parliament to effectively render the remedial actions of the Public Protector void?”

09 Feb 15:39

Chief justices are really grilling Nkosi-Thomas now.

“Ours is not an enforcement action. We are not the sheriff of the court," she continues.

“She cannot look to Parliament and expect them to rubberstamp... The role of Parliament is different.”

09 Feb 15:34

“The National Assembly was obliged to scrutinize [the report by PP]," Nkosi-Thomas says.

“Enforcing the Public Protector’s remedial action without scrutiny would amount to dictatorship.

She says the Public Protector cannot dictate to Parliament what to do.

09 Feb 15:33

"All the counsels present today have accepted that the Public Protecto's remedial actions are binding, including Mr Gauntlett [Zuma's lawyer]," states Mogoeng.

“Was the National Assembly not meant to hold the president accountable based on the findings of the PP, instead of conducting an investigation which tries to show that the PP was wrong?"

09 Feb 15:30

She replies. “Their role was to scrutinize the executive action at the centre of the report.

“The Public Protector's report to Zuma said: ‘You must account yourself to your master.’”  

“It says scrutinize, exercise oversight over it and hold the person to account.”

Nkosi-Thomas is struggling to get her point across to the Chief Justices.

09 Feb 15:29
When the report of the Public Protector and President's report was received, Mogoeng asks, did the National Assembly do what was required of them?

09 Feb 15:27

Mogoeng tells her her ten minutes is up... and begins to ask questions.

“Does the National Assembly accept the meaning given to the Public Protector's remedial action, that the benefit of all the written and oral submissions in court?” he asks.

Nkosi-Thomas replies: “It's not necessary to deal with that question in so far as the National Assembly is concerned.

“It's not necessary to deal with whether the powers are binding or not. “The Public Protector did not direct the National Assembly to do anything.

“Secondly, powers of Parliament cannot be factored by any chapter 9 institutions, the public protector’s office included, with respect.”

09 Feb 15:24

 “The question is: can it be said that what the National Assembly did amounted to an exercise in scrutiny with a view to hold the President to account?

“It is important to highlight that she doesn’t order the National Assembly to do anything.

“What she does is order the President to do certain things.

“How the National Assembly got embroiled in this matter is when she says: The president is to report to the National Assembly on comments and actions on this report within 14 days.

“She [Madonsela] stops there. She doesn’t tell the National Assembly what to do with this information.”

09 Feb 15:21

“We will deal with direct access, condemnation and costs," says Nkosi-Thomas.

“The complaint that is before you this afternoon as far as the National Assembly is concerned is that the National Assembly has defied the Public Protector and arrogated to itself powers of review and second guess the Public Protector.

“The EFF relies specifically on the Constitution - she refers to several sections.

“The question is, what therefore is the National Assembly's role in all of this?”

09 Feb 15:18

“We will deal with direct access, condemnation and costs.

“The complaint that is before you this afternoon as far as the National Assembly is concerned is that the National Assembly has defied the Public Protector and arrogated to itself powers of review and second guess the Public Protector.”

09 Feb 15:17

Nkosi-Thomas: “We propose to structure our argument in the following manner: powers of the National Assembly in relation to the report of the Public Protector.

“In other words, powers of oversight and accountability.

“Secondly, we will respond to submissions by the EFF, DA and the Public Protector.”

09 Feb 15:05
Advocate Lindi Nkosi-Thomas for the Speaker of the National Assembly is now speaking...

09 Feb 15:03

“When you asked about the report of the minister and the ad hoc committee, what should we do with them?” asks Moseneke.

Gauntlet replies that nothing should be done with them.  

Gauntlett asks for costs for the two counsel [EFF and Public Protector].

“We leave costs in the court's hands,” Gauntlett added.

He is done with his submissions.

"Thanks for donating 15 minutes to us," Chief Justice Mogoeng quips.

09 Feb 15:02

It seems as if President Jacob Zuma’s lawyer has conceded in the first line of argument against whether the Public Protector’s findings are binding or not.

Journalists on Twitter are suggesting Gauntlett is trying to prevent a Constitutional Court order from paving the way for an impeachment order.

09 Feb 14:58

The EFF and the Public Protector accept that the president has accepted by mistake of law... although Trengove said, "we have our suspicion"

"An order should be made and we should get on and finish this process," concludes Gauntlett.

09 Feb 14:57

“We understood the DA and EFF to have pleaded themselves in acceptances of the five items. We see a rowing away from that in the course of oral argument," Gauntlett continues.

“The Public Protector and the EFF accept need to substitute SAPS and we accept that too.”

09 Feb 14:56

Mogoeng: “Is it necessary for any report back to be made to court, or should we just make our order and it's done.”

Gauntlett: “We ourselves don’t see the need for that. I think this court has seen that it is sometimes unduly burned with structural cases.”

09 Feb 14:54

Gauntlett: “The pool actually cost R2.6m. The Public Protector was saying a reasonable cost would have been R240 000.”

Gauntlett then says the builders ripped everybody off in a "rip-off operation".

09 Feb 14:52

“In this exercise of determining reasonable costs, is it fair to assume that this is not the actual cost... not the state kind of pricing?" Mogoeng asks again.

Gauntlet replies. “The Public Protector is saying reasonable cost is R240 000 for pool but then what is a reasonable portion [for the president to pay]?”

09 Feb 14:51

Mogoeng argues that when the state is involved prices seem to go up.

Gauntlett replies, says there is a need for a water reservoir for security and Madonsela deals with the question of the pool, then you take away cost of reservoir from price of pool.

09 Feb 14:42

Our learned friend from EFF conceded it was mistake of law and learned friend for DA was not happy.

“Until such time as the SCA had dealt with matter, there was a high court judgment which found an approach different to the one I articulated.

“Why there is this enthusiasm for more orders? It is a dangerous time... if at any time it's thought by the DA and EFF that they wish to bring impeachment proceedings, they have a right, but would be wrong that this court be put in position to make some wide order which can be used.”

09 Feb 14:41

Mogoeng says they are asking for 30 days, is this too much?

Justice Cameron says the EFF says they are doing this by matter of principle.

Gauntlett replies that if the court wanted to add something that is binding, then the court must say remedial action is binding, but others in another action might not be.

“What then remains is that we must deal with contention that the conduct of the president is such to make additional orders [like impeachment] necessary.”

09 Feb 14:33

“Paying is faster than dealing with the issue. We are not here to dictate, we’re saying what is realistic.

“They’re talking about the draft order the president handed to court last week.

“60 days to pay is a proposal,” declares Gauntlett.

09 Feb 14:32
"Arduously she [Madonsela] sifted through everything [when drawing up her report on Nkandla]... there is some looseness of drafting, but she says there are five items and a reasonable proportion of reasonable cost has to be determined. We differ with that," says Gauntlett.

09 Feb 14:31

Justice Nkhabinde asks about the Minister of Police’s report and asks whether they should rely on that.

Gauntlett says they place no reliance on the Police Minister’s report.

09 Feb 14:29

Mogoeng interjects, says one of the powers she has is to make recommendations.

“Doesn't the Public Protector’s powers tell you when she is making a recommendation and when she is advising?"

Gauntlett : “We accept that she wasn't just making a recommendation but wanted something done. Our stance is that it's action we must take.

“We would not fight the fact that she can have direct remedial action which goes beyond recommendation but can be quite nuisanced.”

09 Feb 14:28

“The curious thing is the Public Protector Act is not like PAJA which was held to cover the field entirely... What we have is in relation to the Public Protector Act there seems to be a contemplation, that the Act will deal with remedial action and then it goes quiet.

“How do you deal with that? The Constitution says she can take remedial action regulated by national legislation. But national legislation is a little bit short.

“Wherever it comes from we’re going to do this. We say we accept that the president is required to carry out the remedial action.

“It depends on the context of whether the Public Protector is advising and whether it does bind."

09 Feb 14:17

“If all parties agree that remedial action is binding, but if court wants to deal with that our submissions are that we accept that in the present case what she directed was administrative action, which stands.

“[However] she may be asked to look into matters and comes out with an advisory report... no suggested teeth at all.”

09 Feb 14:16

“The president accepts that the Public Protector has directed remedial action. That has not been reviewed, and since it hasn’t been reviewed it has to be carried out, we submit that," says Gauntlett.

"No one is saying the SCA judgment in the SABC case is wrong, there is no need to go through it again."

09 Feb 14:12

“Yes there is a problem there; we take the point... that the Police Minister has in a sense shot his bolt in making findings," says Gauntlett.

“We agree with the Public Protector that that has to be addressed.  

“We ask the court to catch up on time and address that problem.

“We say nothing further in regards to jurisdiction; it’s in this court's hands.”

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