The issue of whether President Jacob Zuma would pay back the money spent on upgrades to his Nkandla home has harmed both the African National Congress and Parliament. Picture: REUTERS/ROGAN WARD
President Jacob Zuma's Nkandla home. Picture: REUTERS/ROGAN WARD

PRESIDENT Jacob Zuma’s lawyers on Tuesday asked judges of the Constitutional Court to avoid issuing an order that could be used for Mr Zuma’s impeachment after a huge climbdown on the Nkandla scandal.

The lawyers conceded that Mr Zuma was bound by Public Protector Thuli Madonsela’s directive that he pay back some of the R246m spent unnecessarily on upgrades to his Nkandla home.

By making the concession, Mr Zuma has, in a single stroke, wiped out the work of several official investigations and two parliamentary ad hoc committees that had exonerated him.

In the two years since Ms Madonsela released her findings on Nkandla, she has been vilified persistently — including an accusation that she was a Central Intelligence Agency spy — by Deputy Defence Minister Kebby Maphatsoe.

The president’s counsel, Jeremy Gauntlett SC, sought to contain the potential political fallout of the court case, saying the highest court should not be "inveigled" into giving orders that could be used by opposition parties to call for Mr Zuma’s impeachment.

The Economic Freedom Fighters (EFF) took the case to the court, asking that the findings of the public protector — that Mr Zuma had until now strenuously resisted — be implemented.

Counsel for the EFF Wim Trengove SC asked the court to order that Mr Zuma’s initial stance towards the public protector’s report was a violation of his duty to uphold, defend and respect the Constitution.

He asked the court to declare Mr Zuma in breach of his oath of office.

The request by Mr Trengove for these declaratory orders sets the stage for the next phase in the EFF’s campaign to have Mr Zuma removed from office. After the hearing, EFF leader Julius Malema said if the court declared that Mr Zuma had breached his constitutional duties, the EFF would seek his impeachment in Parliament.

Mr Gauntlett said the president accepted that Ms Madonsela’s directive — that he pay back a reasonable portion of the costs of the nonsecurity upgrades — had a legal effect, and had not been set aside by a court. "It binds," he said.

He also conceded that Police Minister Nkosinathi Nhleko and Parliament’s ad hoc committee on Nkandla could "certainly not" second guess the public protector.

Both found that Mr Zuma was not liable to pay any money back.

Mr Gauntlett said that the Nkandla issue had "traumatised the nation" and admitted that the report by the public protector could be set aside only by a court.

However, although willing to concede on implementation of the public protector’s directions, he warned against the court giving the EFF all the orders it sought.

"This is a delicate time, in a dangerous year," said Mr Gauntlett, a likely reference to local government elections.

He said the Democratic Alliance (DA) and the EFF had the right to bring impeachment proceedings.

"But what would be wrong would be for this court to be inveigled into a position of making some form of wide, condemnatory order, which will be used effectively for … an impeachment in Parliament."

Section 89 of the Constitution allows Parliament, with a two-thirds majority, to impeach the president for a serious breach of the Constitution or the law.

Mr Trengove said while it was not the EFF’s case that Mr Zuma had wilfully defied the Constitution, this did not mean the party accepted the president’s good faith. But even with a "bona fide error of law", the president had breached his constitutional duty, he said.

Mr Trengove said while the president’s concession was "gratifying, it is not enough".

It was not good enough for Mr Zuma "when pushed into a corner" after nearly two years of defying the Constitution and not supporting the public protector, to just say "well ok, I’ll pay back the money".

Mr Zuma’s concession had consequences, he said. If he acknowledged he should have implemented Ms Madonsela’s directives, it meant that he had been in breach of his Constitutional duties and oath of office for almost two years. That was why the EFF sought the declaratory orders.

He added that the public interest cried out for clarity on the public protector’s powers.

Mr Malema told journalists outside the court that should the ANC use its majority in Parliament to thwart an impeachment process, the EFF would take the matter back to the court to argue against Mr Zuma’s fitness to hold office.

SA could not have a president who violated the Constitution and his oath of office, he said. The ANC would be forced to recall Mr Zuma, as it had done with his predecessor, Thabo Mbeki, he said.

Counsel for the DA, Anton Katz SC, took issue with Mr Gauntlett’s insinuation that the orders were sought for political purposes. He said there had been no discussion in the DA’s parliamentary caucus of impeachment proceedings.

With Penelope Mashego