Democratic Alliance (DA) leader Mmusi Maimane addressed the media on the steps of the Western Cape High Court on Wednesday. “After exhausting all parliamentary processes to hold the president to account for the theft of public funds at Nkandla, it has become necessary to approach the courts to do so. We remain resolute that the president had no authority to arbitrarily substitute the remedial actions taken by the public protector for his own,” he said.

The DA filed its court papers the day after Police Minister Nkosinathi Nhleko’s report on the Nkandla upgrades was adopted in Parliament. The DA not only wants Nhleko’s report declared invalid, it wants Zuma to comply with Public Protector Thuli Madonsela’s remedial actions – that he pay a reasonable percentage of the non-security upgrades at Nkandla.

“The president is obliged to comply with the remedial action taken by the public protector. He has failed to do so in an obstructive and defiant manner. He must accordingly be directed to comply with the remedial action,” DA MP James Selfe said in an affidavit accompanying the party’s court application.

The DA wants the National Assembly’s resolutions in November last year and August this year and the matching ad hoc committee reports on Nkandla to be declared unlawful and invalid. This, the DA says, is because Zuma was required to report to the National Assembly on the public protector’s report. Neither the president, nor the National Assembly, nor the public protector sought Nhleko to report to the National Assembly, his findings were irrational and Madonsela was not given the opportunity to brief Parliament, the party says.

Selfe’s affidavit provides a timeline of the Nkandla saga detailing how the DA believes Zuma failed to engage rationally on the public protector’s remedial actions and how instead the state launched parallel investigations. The president has not responded to the remedial actions in Parliament or meaningfully engaged with Madonsela, nor have her findings been challenged on review, it says. “The president has not complied with the remedial action taken by the public protector. The DA contends that the president was legally obliged to do so. If that is correct, it follows that the president must be directed to comply,” says Selfe.

Multiple reports have probed the Nkandla upgrades. There was one from a state task team, the Special Investigations Unit, and two ad hoc committees. While all find fault with apparent inflated costs from the contractors and the most recent pointed out the shoddy work in Nkandla, the public protector’s investigation is the only one to make the recommendation that Zuma pay back some of the money spent for non-security upgrades, including, but not limited to, the pool, amphitheatre, visitors’ centre, kraal and chicken run.

In Parliament, the African National Congress (ANC) has been at pains to go through the process of investigating the matter and Nhleko’s report recommends vigorously recovering state funds that were ill spent. The DA’s court papers say the parliamentary processes have no weight as the proper processes in following the recommendations from the public protector, which as a Chapter 9 institution carries more weight, were ignored. Zuma has not responded sufficiently to the report and Nhleko was not required to report to the National Assembly, said the DA. The public protector tasked the South African Police Service and the Treasury to investigate a reasonable percentage of the costs for Zuma to pay.

The chief whip’s office of the ANC on Wednesday said the DA’s right to go to court is enshrined by the Constitution but it accused the DA of playing to the media. “We know too well that courts and police stations have now become fashionable places for media theatrics,” said the ANC. “Far from being concerned with media stunts of the opposition, our focus as the majority party in this institution is now on ensuring that important recommendations passed by Parliament yesterday are implemented by the executive.”

The ANC’s statement referred to “the DA’s failure to substantively persuade Parliament on the correctness of its arguments”. On Tuesday the party tried to push for the adoption of an alternative report prepared by opposition parties. Maimane called on MPs to vote with their conscience but predictably the ANC majority backed Nhleko’s version.

University of Cape Town constitutional law professor Pierre de Vos had not seen the DA’s court papers yet on Wednesday (they were still being served on the respondents), but offered his opinion assuming the DA was likely challenging the constitutionality of the Nhleko report and Zuma’s decision not to implement the public protector’s remedial recommendations.

“I suspect the wrong decision by the wrong person is being targeted,” he said of the attempt to nullify the police minister’s report. “The Nhleko report does not have legal standing in the sense that it cannot overwrite the public protector’s report – it is an opinion expressed by a politician employed by the implicated person and as such must be viewed as a political report. I suspect a court will not interfere with the report or set it aside first because it’s irrelevant and second because it is not the role of the court to tell a politician how to spin a political scandal. That would intrude on the political terrain.”

Looking at the challenge on the president’s failure to implement the public protector’s remedial actions, De Vos said: “If the High Court judgment is assumed to be applicable, the DA may potentially be successful in showing that the president had no cogent reasons for ignoring the public protector’s remedial action and referring the matter to the police minister instead of deciding with the help of the Treasury how much he should pay back. If there are no cogent reasons then the decision is irrational and invalid as it fails to comply with the basic tenet of the rule of law. This is a good argument which – depending on the response by president – may well be successful.”

Since Madonsela released her report she has come under a barrage of criticism from Zuma’s allies while the ANC in Parliament has responded to the Nkandla criticism by continuing to probe the issue, albeit with hard-to-believe descriptions of how certain upgrades were for security, thus exonerating Zuma from liability. With the DA taking the matter to the High Court and the Economic Freedom Fighters indicating it has approached the Constitutional Court, there might soon be clarity after over a year’s worth of debate.

In September, the Supreme Court of Appeal will hear the case of the DA against the SABC, which promises to give clarity on the powers of the public protector. That case will prove crucial to the Nkandla issue. Already, the High Court has found that while the office’s powers may not be binding, the state cannot ignore them without rational reasons.

The DA says Zuma has not properly engaged Madonsela’s report nor are there rational reasons for ignoring her remedial actions. The case against Zuma is not only important for the future of these state institutions, it will also, finally, determine whether the president has to pay back the money. DM

Photo: South African opposition party Democratic Alliance leader Mmusi Maimane addresses the president during an answering of questions session by South African President Jacob Zuma in parliament, Cape Town, 06 August 2015. EPA/NIC BOTHMA.