Nkandla: Arguments made at ConCourt

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On Tuesday, some of South Africa’s most experienced silks appeared before the 11 justices of the Constitutional Court in a bid to finally put the R246 million Nkandla scandal to bed.

The Arguments: Wim Trengove SC and Anton Katz SC

WimTrengove

The two applicants, the Economic Freedom Fighters (EFF) and the DA, put up their arguments first.

“This is really one of the main reasons why the EFF is here – to establish once and for all that the Public Protector may make binding orders,” said EFF counsel Trengove.

Taking aim at Zuma, he said he had “violated his ethical duty” and defied the Public Protector “in order to protect his ill-gotten gains”.

This was echoed by DA counsel Katz.

Anton Katz

“This case goes far deeper than the question of the Public Protector’s powers … It goes to a systemic failure of government … to hold to account that which is ultimately excessive, a homestead for one family.” he said.

Trengove argued that while the law allowed for the Public Protector’s findings to be reviewed by a court of law, the National Assembly had no to right to set up an ad hoc committee to overrule her findings.

Trengove and Katz were followed by Gilbert Marcus SC, acting for Public Protector Thuli Madonsela, who watched from the seats, and advocate Carol Steinberg representing Corruption Watch.

The Arguments: Jeremy Gauntlett SC

The real action started when Gauntlett stood up to argue the president’s case. He blindsided everyone when he said he would no longer argue that the report was not binding.

Jeremy Gauntlett

“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.”

Gauntlett shocked everyone by not contesting the EFF’s and DA’s right to approach the Constitutional Court directly, rather than first approaching the lower courts.

A source close to the case said: “I think it’s fairly obvious that [Gauntlett] advised them to capitulate, and they then capitulated on every flaw rather than put up a fight.”

When asked by Justice Bess Nkabinde what the court should do with Police Minister Nathi Nhleko’s controversial fire pool report, Gauntlett again stunned the court by saying that they should place no reliance on it.

The Arguments: Lindi Nkosi-Thomas SC and William Mokhari SC

Lindi Nkosi-Thomas

Before advocate Nkosi-Thomas had finished speaking, the twittersphere exploded with memes mocking her awkward and flustered performance.

But those close to the case have pointed out that Nkosi-Thomas, who represented the Speaker of Parliament, Baleka Mbete, had virtually her entire argument demolished by Gauntlett just minutes before.

“The Speaker had made out a huge argument on direct access. So when Gauntlett threw in the towel, Nkosi-Thomas had no choice. She threw in the towel as well,” another source close to the legal teams said.

“The Speaker had [also] put up a substantial argument that the Public Protector’s remedial actions were recommendations and not binding, but merely advisory. But once Gauntlett stood up to make his argument, she had to throw in the towel on that too.”

William Mokhari

She argued that the National Assembly had not defied the Public Protector because her report had not given them specific instructions.

Chief Justice Mogoeng Mogoeng asked: “Was the National Assembly not meant to hold the president accountable based on the findings of the Public Protector, instead of conducting an investigation which tries to show that the Public Protector was wrong?”

Eventually, when asked by Justice Edwin Cameron if the National Assembly had failed in its duty to oversee the president, Nkosi-Thomas had to concede: “Parliament took a wrong position.”

Mokhari fared little better in trying to protect the minister of police. Asked by Justice Dikgang Moseneke if Nathi Nhleko had gone ahead with his report knowing it was unlawful, Mokhari pleaded that “the minister’s hands were tied … he had to make sure as part of the executive ... he had to perform the duty given to him by the National Assembly”.

The Constitutional Court has not said when it will deliver its judgment in the case.

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