“We’ll see you in court,” Julius Malema told President Jacob Zuma on the last occasion on which he appeared in Parliament to answer questions. Malema meant the Constitutional Court.
It is rare that the Constitutional Court will grant a legal application direct access, because it is not usually a “court of first instance”. In other words, the matter would usually have to make its way through lower courts before the highest court in the land would hear it. It is only in exceptional circumstances that the court will permit a matter to be brought directly to it
For this reason, when the EFF announced in August that it had filed an application with the Constitutional Court over Nkandla, legal consensus seemed to be that the Fighters would be lucky to have the matter heard.
Former NPA prosecutor Glynnis Breytenbach, for instance, told journalists at the time that she would be “extraordinarily surprised” if the Constitutional Court entertained the matter.
Words may have to be eaten now: eNCA reported on Tuesday that the case has been set down for a Constitutional Court hearing on 9 February 2016.
The EFF’s successful appeal for direct access relied on section 167(4)(e) of the Constitution, which holds that only the Constitutional Court may decide that “Parliament or the president has failed to fulfill a constitutional obligation”. This is what the EFF argues happened when Zuma effectively ignored the recommendation of the public protector that he pay back a portion of the money spent on security upgrades at Nkandla.
Parliament comes into it because the National Assembly failed to uphold the authority of the public protector when it did not compel the president to comply with her recommendations. The papers before the court accordingly list two respondents in the matter: National Assembly Speaker Baleka Mbete and Zuma.
The EFF has not wasted the media attention on the matter. The papers, signed by EFF chief whip Floyd Shivambu, describe the EFF as “anti-capitalist, anti-racist, anti-sexist and anti-imperialist in its world outlook”. Its “basic foundational principle” is “open and accountable government in which people live without the fear of being victimised by the National Defence Force, the police, or other security agencies”. The EFF’s supporters, the papers remind the court, “number in excess of 1,2-million voters”.
Mbete is described as “not impartial, prone to procedural lapses and openly hostile to the EFF”. The ad hoc committee established by Parliament to consider the Nkandla security upgrades is dismissed as a political puppet: “It is apparent that the purpose of this ad hoc committee is not to give effect to the report of the public protector”.
Shivambu’s affidavit notes that the public protector’s Nkandla report found that Zuma’s failure to “act in protection of state resources” constituted a violation of the Executive Ethics Code, which in turn was “inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution”.
Shivambu describes this finding as “gravely serious”. The affidavit then details the remedial action prescribed by the public protector: that Zuma “pay a reasonable percentage of the cost of the (Nkandla security) measures”.
If the president did not agree with this, the EFF argues that he should have challenged it in court. Not to do so, and to simply ignore the remedial action, was “intolerable”.
The National Assembly, meanwhile, was “obliged to protect the public protector” and failed to do so. The summary of the report Zuma submitted to Mbete was a “distortion”, the EFF argues, which among other omissions failed to mention that the public protector found that the president had acted in violation of the Constitution.
The president’s decision to let the police minister determine whether he was liable for any repayments on the Nkandla upgrades is dismissed by the EFF as “unconstitutional”, as the public protector had already found that he was indeed liable. As such, the National Assembly’s ad hoc committee set up to look into the police minister’s report was also unconstitutional.
“The National Assembly cannot alter the reports of the public protector. The reports of the public protector are binding and can be set aside only by a court of law,” the EFF maintains.
What the EFF wants is for the Constitutional Court to order Zuma to comply with the public protector’s recommendations. In other words, the president should be made to pay back a “reasonable percentage” of the money spent on non-security features at Nkandla, within 30 days of a court order.
Public Protector Thuli Madonsela did not put a figure on what a “reasonable percentage” would constitute. The Democratic Alliance (DA) maintained at the time of the report’s release that such an amount should be in the region of R52-million.
The mere fact that the EFF has secured a court hearing is, of course, no guide as to the likelihood of its action succeeding. After Parliament put the Nkandla matter to bed last month, however, the legal route is the last recourse for opposition parties to see the president held to account for the upgrades on his private residence.
African National Congress Western Cape spokesperson Yonela Diko has dismissed the application as “silly and anti-democratic”.
“The public protector’s recommendations are not binding,” Diko wrote in the Cape Argus last month.
“They are recommendations made to Parliament, and Parliament created two ad hoc committees to look into them along with recommendations by other investigations. The ad hoc committees have presented their findings to Parliament and Parliament has adopted the findings. Case closed.”
The EFF’s application is not the only one pending on the status of the public protector. The DA, less ambitiously, filed papers with the Western Cape High Court in August, asking for the court to declare the police minister’s Nkandla report invalid and compel Zuma to comply with the public protector’s remedial action.
More significantly, the DA is also awaiting the decision of the Supreme Court of Appeal, expected in September, on another matter expected to clarify the powers of the public protector. A case that originally reached the courts because the SABC failed to suspend acting head Hlaudi Motsoeneng as recommended in a report by the public protector is now seen as potentially holding the answer to whether the public protector’s findings are indeed legally binding or not.
Whether or not Zuma ends up paying back the money, the public protector’s role will hopefully be more clearly established in legal terms within the next year. DM
Photo: Leader of the opposition party Economic Freedom Fighters, Julius Malema (R) and deputy Floyd Shivambu (L) attend South African President Jacob Zuma’s answering of questions about his State Of The Nation Address (SONA) in parliament in Cape Town, South Africa, 19 February 2015. EPA/NIC BOTHMA
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