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ConCourt Democracy: Nkandla’s day in court

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Judith February is executive officer: Freedom Under Law.

Tuesday 9th was an extraordinary day for South Africa’s democracy. A perfect constitutional storm, if you like, televised live: Gauntlett v Trengove under the leadership of Chief Justice Mogoeng.

Those who ever doubted the power of the Constitution should have watched the Nkandla case live.

The case rests on two legs. Firstly whether there was an argument to be made for direct access by the parties to the ConCourt and secondly – and this is crucial – the extent of the Public Protector’s powers.

For years the country has endured President Zuma denying he was liable for any payment related to non-security related features. We also had to endure his undermining the Constitution by denying that he ought to follow Madonsela’s recommendations.

Yesterday in the ConCourt, when pushed, Jeremy Gauntlett SC made two crucial concessions. The first was that the report by Minister of Police Nathi Nhleko has no true legal significance. Then, in the most significant about-turn, Gauntlett conceded, “we accept that in the present case what [the Public Protector] has directed would be administered action which would stand and bind unless reviewed,”

He might have intended a sleight of hand with “in the present case”. But the ConCourt will be left to decide.

With that utterance Parliament’s own case came crashing down.

The ANC released a statement saying that the Nkandla matter was “distorted” by opposition parties and that the President had always sought to cooperate with the Public Protector. Quite clearly, the ANC lives in a parallel universe to the rest of us who have seen not only the Public Protector’s office denigrated but her personally subjected to ad hominem attacks.

While judgment has been reserved, Madonsela can feel pleased with the ConCourt proceedings this week. She has consistently confirmed the role and function of her Office and that will perhaps be her greatest contribution to our democracy. She stood firm in the face of an assault on our Constitutional framework.

The Nkandla matter has been a festering sore on the body politic and the real question is how our country arrived at a point where our President believes he is able to use legal processes to evade accountability and then unashamedly claim the opposite?

The damage has been done and our politics becomes more fractured. While Gauntlett and Trengove, both silver-tongued and brilliant argued before the ConCourt judges, but outside the real political theatre was unfolding.

The EFF had marched to the ConCourt and Julius Malema was spewing his own brand of rhetoric calling for Zuma to fall, along with the Guptas and their news outlets.

Malema is a master at seizing the political moment. He remains dangerous. Of course he is right about state capture and the brazen way in which the Guptas have managed to insinuate themselves into the very heart of power. Yet, Malema speaks the reckless language of tin-pot dictatorships. He calls for the Guptas to be hounded out of South Africa and ANN7 and New Age journalists to be excluded from press conferences. Apparently their safety cannot be guaranteed.

While the Guptas may have taken the buying of influence to staggering levels, they are the only wealthy individuals who seek to influence those elected.

Malema and the EFF would therefore do well to start analysing the toxic mix of money and politics in a far broader sense.

At local government level the problem is particularly acute and the system gripped by patronage.

The question then becomes whether the EFF can speak on the issue with any legitimacy.

SANEF has come out strongly against Malema’s threats to journalists and it is important that other voices speak out to protect journalists at work – no matter who pays their salaries or owns the news outlets. A Constitutional democracy ought to be able to hold a plethora of views and opinions and citizens should be left to decide what they wish to consume as daily news.

Malema’s outbursts and attacks on the media must be called for the acts of Constitutional sabotage that they are, even though he claims to defend the Constitution.

Both Malema and Zwelinzima Vavi suffer from a credibility deficit. Zuma was an “unstoppable tsunami” as Vavi put it. Malema was going to “kill for Zuma.”

Both individuals, therefore, had a hand in delivering President Zuma.

Zuma comes to Parliament tomorrow in a weakened position.

Perhaps he will be cunning enough to have done the calculations. He is first and foremost a “party man” and his position within the ANC is unlikely to change dramatically or immediately because of what happened in the ConCourt this week.

However let us make no mistake. This is the beginning of an unraveling that will be messy. It will also require compromise. The ANC’s performance in the upcoming local government election will be a barometer of Zuma’s standing in the party.

This week Zuma went walk-about in Marabastad. He was upbeat as he spoke to street vendors, declaring that “everyone was happy.” Again, he alluded to the fiction of the media conjuring up citizen dissatisfaction.

Is Zuma really is THAT disconnected from what is happening in the country?

The World Bank has revised our 2016 growth figure to 0.8 percent. To meet the National Development Plan (NDP) targets of 14 percent unemployment by 2020; South Africa needs a growth rate of 5 percent.

Pravin Gordhan will have to pull a rabbit out of the hat on Budget Day. Market downgrade now seems inevitable. Food prices are rising, as are interest rates. The drought persists, costing the economy billions. Happy citizens are not unemployed citizens.

Recently released Afrobarometer data show the approval ratings for the President and local government elected leaders at a miserable 36 percent, down from 64 percent in 2011.

Fifty-six percent of Black South Africans were found to disapprove of the President’s overall performance.

The President holds power uneasily and another sonorous SONA will only lay that bare to a country who knows.

This President’s time is up. We just cannot fathom when. DM

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