There was one glaring omission in Thuli Madonsela’s “Secure in Comfort” report on Nkandla. Amongst her many findings, Madonsela’s said the following:

“His failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.”

This was by far the most damning part of her report. It concludes that President Jacob Zuma’s conduct was inconsistent with his constitutional obligations. What Madonsela did not do was recommend remedial action on this particular finding. Her remedial action pertaining to the president focused on compensating the state for undue benefits for upgrades to his residence that did not relate to security. Hence opposition political parties and the country became consumed with “pay back the money” – the perceived antidote for the sins of Nkandla.

When Daily Maverick asked Madonsela about this omission during her extensive media briefing when she released the Nkandla report on 19 March 2014, she responded: “I have avoided determining what should be the remedy for ethical violations”.

She explained that as head of the executive, the president is usually the person who would determine what needed to be done in the event of ethical breaches by members of Cabinet. “The problem I find myself in is that when the investigation is about the president, the report should end up with someone else,” Madonsela said.

And this was the core of the problem regarding the Nkandla matter. Madonsela had to submit her report about the president to the president. So Zuma was responsible for implementing the remedial action against himself.

There was no way out of this ridiculous loop as neither the Constitution nor the legislation governing the work of the Public Protector had envisaged a situation where the President of the Republic would be the person under investigation. So Madonsela backed off from the constitutional dilemma and instead focused on the achievable remedy: paying back the money.

It is quite the irony that two years later, after stalling on the report, then fobbing it off onto Parliament to absolve him of responsibility, then assigning the Minister of Police to determine whether he should pay any money, Zuma’s actions delivered him to the judges of the Constitutional Court. On Thursday, the court will rule whether Zuma’s failure to implement the recommendations were in breach of his constitutional duties and the law.

It is effectively one breach built on another breach.

Zuma’s lawyers already conceded when the case was argued in February that he should have implemented the Public Protector’s recommendations and paid back the money. But what about the ethical breach?

This was where Parliament should have performed its oversight role and considered all of Madonsela’s findings, including the “violation” of the Executive Ethics Code. But the ANC caucus in Parliament assumed the role of running interference and protecting Zuma from being held accountable. Throughout the protracted processes in Parliament, to pay or not to pay was the primary focus while the issue of the ethical breach slipped through the cracks.

Thus, the Constitutional Court now has to pronounce not only the conduct of the president but also that of the National Assembly. What then happens if the head of the executive and Parliament have been found by the Constitutional Court to have acted contrary to the Constitution? It is not an easy question to answer because of the separation of powers doctrine and, again, because the writers of the Constitution had never envisaged such a prospect.

While Madonsela has been resolute about her report and the implementation of the recommendations, offering numerous times to explain her findings to Parliament, she resisted taking the matter to court herself. If she had, it would have seen her go head to head with the president, which she wanted to avoid doing.

Madonsela did however join the application by the Economic Freedom Fighters (EFF) to let the Constitutional Court have the final say on the matter. The Democratic Alliance and Corruption Watch also joined the application, ostensibly to affirm the powers of the Public Protector but also to provide the basis for further possible action against the president. EFF leader Julius Malema has hinted about impeaching the president but said his party would only announce their course of action once the judgment was delivered.

While the judgment will bring finality to the Nkandla matter, it is also relevant to the current controversy over the Gupta family’s influence over the president. As President of the Republic, Zuma is entrusted with the protection of the state, its sovereignty and its resources. The allegations around the Guptas and the inordinate powers they command over the functioning of the state imply that Zuma has surrendered some decision-making to them and is therefore not acting to protect the state, its sovereignty and its resources.

It is now up to his party, the ANC, to investigate the allegations of “state capture” through an internal process. The ANC will decide on the scope of the investigation and punitive action, if any, against anyone implicated in wrongdoing. It is also not clear if the “wrongdoing” will be defined according to the ANC’s constitution or whether it will venture into illegality defined by the laws of the country. Ethical violations might be relative and dependent on who in the ANC has the last say.

In terms of the state, there is clearly a legal and constitutional caveat regarding the accountability of the president. What is to be done if the president acts in violation of the Constitution and the law? If Parliament fails to hold him to account, who can do what?

The Office of the Public Protector is now also investigating the Gupta allegations. Could South Africa be in for another wild goose chase should the Public Protector’s office come up with adverse findings against the president? Could the Gupta controversy also slip through the cracks?

This is why the Constitutional Court judgment on Nkandla is so crucial and far reaching. It will not only bring deliverance on the awful affair of millions of rands being spent on the president’s private home and the collusion to protect him from being held accountable, but also affirm the powers of the Public Protector and oblige Parliament to perform its oversight role. The judgment will hopefully also dispel impunity of the current and future presidents.

Nkandla was and always will be a shameful episode for the ANC and for the country. But perhaps our democracy will now be strengthened and the end of the era of disgrace is finally in sight. DM

Photo: President Jacob Zuma (Greg Nicolson)