Over the last 150 days we have learned much about the power of the habitual in post-millennial, post-apartheid South Africa. We have heard it in the grumbling, cavilling, quarrelling and grousing about the logic (or lack of) of government decrees. We have also seen it in the defiance of logic among the many bourgeois folks who mistook their entitlement for rights, whether to go running, do yoga on the beach, surf, get takeaway coffees, or to purchase items subjected to restricted trade… We saw it in the contradictory messages relayed by official government channels, in the conflict between some experts advising government, between government officials and such experts, and in the ways in which opposition parties contradicted themselves as they opposed government proclamations.

3 February 2016

Is President’s Nkandla offer an implicit admission of defeat?

In a surprise move, President Jacob Zuma announced late on Tuesday night that he is offering to pay back a reasonable portion of the cost incurred by the state for non-security related upgrades at his private home at Nkandla. This looks like an astute move by the President to try and prevent a potentially damaging defeat in the case brought directly to the Constitutional Court by the Economic Freedom Fighters (EFF). But the offer may well have come too late to prevent the hearing from taking place next week.

The misuse of public funds to finance some of the renovations at President Jacob Zuma’s private home at Nkandla will almost certainly not be the main blot on his presidency. The massacre of 34 miners by the police at Marikana (and the manner in which politicians and police leaders attempted to avoid being held responsible for the massacre) will, in time, almost certainly come to be viewed as the worst aspect of President Zuma’s tenure as head of state.

Because some South Africans have internalised the racist belief that black lives do not matter as much as white lives do – it’s telling that the ANC Women’s League laudably supported the family of Reeva Steenkamp, but did not extend the same kind of support to the widows of the miners murdered at Marikana – it is perhaps not surprising that “Nkandla” (and not “Marikana”) is the word that trips of the tongues of many of President Zuma’s harshest critics.

But this does not mean that the Nkandla scandal has not raised important questions about the quality of political leadership in South Africa. Anyone who has read the legal papers submitted to the Constitutional Court on the binding nature of the remedial action imposed on President Jacob Zuma by the Public Protector, will also have to agree that the case to be argued in the Court next week may provide answers to vital constitutional questions.

Most notably, it may provide the President and Parliament with clear guidance on the appropriate legal manner to deal with the implementation of the findings and remedial action of the Public Protector. (If the Court follows the SCA judgment, the legally appropriate action can be summarised as follows: “Do the exact opposite of what you did during the Nkandla saga.”)

It is unclear whether political considerations (relating to internal workings of the ANC) might have prompted President Zuma to make the offer to pay back a reasonable amount of the cost of non-security related renovations at Nkandla as determined by individuals designated by the Auditor-General and the Minister of Finance. But I would not be surprised if the lawyers appointed to argue the President’s case in the Constitutional Court next week might not have advised him that there is little merit in his case and that the best he could hope for was to drag out the agony by getting the High Court to deal with the matter first.

The strongest argument available to the President is that the Constitutional Court should not consider the merits of the case at all as it should not grant direct access to the EFF and the DA to present the case in the Constitutional Court. Usually, a litigant is not allowed to approach the Constitutional Court directly. The litigant must usually first get the High Court and (in some cases) the Supreme Court of Appeal (SCA), to consider the case.

In this instance the EFF argued that only the Constitutional Court can hear the case as it deals with the question of whether Parliament and/or the President “has failed to fulfil a constitutional obligation”. Section 167(4)(e) of the Constitution states that only the Constitutional Court may hear such cases.

The Constitutional Court has emphasised that the section should be given a narrow meaning. In Women’s Legal Centre Trust v President of the Republic of South Africa and Others the Constitutional Court thus found that section 167(4)(e) only applies where the constitutional obligation is imposed “specifically and exclusively on the President or Parliament”. It would not suffice to invoke a general constitutional obligation – such as the obligation on organs of state to assist and protect Chapter 9 institutions to ensure their independence, impartiality and effectiveness – to gain direct access to the Court.

The EFF invoked the vague and general obligation imposed on the President by section 83(c) to promote “the unity of the nation and that which will advance the Republic” to meet this requirement. I doubt the Constitutional Court will agree, as this obligation might not be specific enough to trigger the application of section 167(4)(e).

But this is not the end of the matter as Parliament is also cited as a respondent in the case and section 55(2)(a) seems to impose a “specific and exclusive” duty on the National Assembly to provide mechanisms to hold the President accountable.

One could develop a plausible argument that the case before the Constitutional Court deals at least partly with the failure of the National Assembly to provide such mechanism to hold the President accountable in the Nkandla matter.

Instead of creating a mechanism to hold the President accountable and ensuring that he implements the binding remedial action imposed by the Public Protector, the National Assembly created two ad hoc committees to review the findings and remedial action of the Public Protector – something that was unlawful. The National Assembly created mechanisms to avoid holding the President accountable, doing the exact opposite of what it is required to do in terms of section 55(2)(a).

If this is correct, the Court will find that the case falls within the ambit of section 167(4)(e) and will grant direct access to the parties. It will then have to decide the merits of the case.

If the Constitutional Court decides to consider the merits of the case, the lawyers arguing the case for President Zuma and Parliament are in for a very rough ride indeed. There are several reasons for this.

The legal papers submitted to the Constitutional Court on behalf of President Zuma contain several mischaracterisations and somewhat misleading claims about the Public Protector’s Report. The papers seem to misrepresent (by omission) the findings of the Public Protector regarding improper conduct associated with the Nkandla renovations, then boldly state: “Nothing in the PP’s report implicates the President in this misconduct”.

(The statement issued by the presidency on Tuesday goes beyond misleading and strays into clear falsehood. It states that “[t]he report specifically found no wrongdoing of any kind by the President.” This is untrue as the Report made several adverse findings against the President, including that: “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.”)

The papers also seem to misconstrue (or adventurously re-interpret) the remedial action imposed on the President by the Public Protector in order to argue that the President had indeed met his legal obligations. This was probably done in the light of the SCA judgment in the Motsoeneng case, which found that the remedial actions imposed by the Public Protector are not mere recommendations which can be ignored, but are in fact binding on those on whom it is imposed.

If the remedial actions imposed by the Public Protector on President Zuma are binding and if – as the SCA found – it was impermissible to second-guess the findings by asking somebody else (say, the hapless Minister of Police) to conduct his or her own investigation and replace the findings of the Public Protector with these findings, then the President clearly acted unlawfully when he ignored the remedial action and got the Minister of Police to exonerate him from any responsibility for paying back the money for non-security related renovations at Nkandla.

Recall that, in light of the various adverse findings made against the President, the Public Protector directed the President to:

11.1.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool. 11.1.2. Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.

The President failed to comply with this instruction as the law currently requires him to do. Instead he directed the Minister of Police to do what the Public Protector had already done, namely to determine whether any of the renovations at Nkandla were non-security related and whether he had to pay any of the cost incurred for the renovations.

However, the President’s lawyers seem to argue that the President had complied with this remedial action as he had merely asked the Minister of Police to decide which renovations were security related and which not. But this is not entirely correct. The President had actually requested the Minister of Police to:

…report to Cabinet on a determination to whether the President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports.

Because the President had asked the Minister of Police to determine whether any of the money spent at Nkandla was not related to security, he had invited the Minister to review the findings of the Public Protector and to replace them with findings more advantageous to the President.

In terms of the SCA judgment on the powers of the Public Protector, this was impermissible and unlawful. It was specifically problematic because the Public Protector had stated in no uncertain terms that the Visitors’ Centre, the amphitheatre, the cattle kraal, chicken run, and the swimming pool were no security related upgrades and had to be paid for.

The President’s lawyers avoided dealing with the fact that the Public Protector had already found that the specific renovations mentioned above were not security related. It was necessary for them to do so in order to present a vaguely credible case.

The fact that the President is now offering to settle a case – something a party to a court case usually does when he or she is not confident of winning the case – suggests that the President slowly coming to terms with the fact that he is legally obliged to comply with the remedial action imposed by the Public Protector – unless he has the Report reviewed and set aside by a court of law.

But the change of heart probably came too late to prevent the case from being argued next week. As the litigants in this case are bound to reject the President’s offer to settle the case and to make that settlement an order of court, the offer is not likely to have a direct legal effect on proceedings before the Constitutional Court.