I AM still reeling from what went down in the Constitutional Court on Tuesday. I’ve been attending Constitutional Court hearings since 2001 — not all, but many — and I have never seen anything like it.
But at least I have figured out why I am still dazed and baffled by what I saw: at a certain point, and very quickly, the case stopped being about law and became almost entirely political.
Yes, politics had always lurked behind the Nkandla case. The case was the culmination of a two-year build-up of political pressure and all manner of contortions and acrobatics by different government officials and parliamentary committees to protect the president. (O Sole Mio will never sound the same again.)
But politics lurks behind many cases that go to the Constitutional Court. Take the 2002 Treatment Action Campaign case. This challenged the government’s policy not to roll out antiretrovirals to pregnant women and breast-feeding mothers.
In a political sense, it was former president Thabo Mbeki’s denialist stance on HIV/AIDS that was on trial. But in court, there was a real, and difficult, legal debate about socioeconomic rights and the separation of powers.
This is what I was expecting in the Nkandla case. Nowadays everyone is so sure that the public protector’s remedial action is binding. But it was not always so obvious.
The scope and nature of the public protector’s powers is actually a complex legal question and, for years, there was legitimate debate among lawyers and academics about it.
That was what I thought we would be hearing: clever lawyers thrashing out these complexities. And the morning began along those lines. Exciting and interesting, but as expected.
But then it happened. The president’s counsel, Jeremy Gauntlett, stood up and just capitulated, conceding President Jacob Zuma’s entire case.
Apart from a quibble about the practicalities — how the costs will be calculated and by whom — Gauntlett said Zuma was ready and willing to #PayBackTheMoney.
What he did not want was the highest court to declare that Zuma had violated the Constitution and his oath of office. Why? Because such an order could be used by the opposition parties to push for an impeachment.
We did not have to read between the lines to get this. He actually said it out loud. "This is a delicate time, in a dangerous year," Gauntlett said.
"It would be wrong 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." To be fair, Gauntlett also made a legal argument on this score: he said the declarators were unnecessary.
This was a proper legal argument, because courts are supposed to resolve disputes between parties and grant effective relief, not give legal advice. But it was entirely eclipsed by his political argument.
It was not so long ago that Justice and Correctional Services Minister Michael Masutha asked candidates for appointment to the Constitutional Court whether courts could consider the extraneous political ramifications of their judgments. The answer from each judge who was asked was a loud and clear "No".
The questions followed the furore over Sudan’s President Omar al-Bashir managing to spirit himself out of SA, despite a court order that he should not be allowed to leave.
It is outside of the courts’ terrain to decide whether to grant an order because of what it would mean for the country’s diplomatic prospects. The same must surely go for someone’s political prospects.
The Constitutional Court has found the president in breach of the Constitution before and declared it to be so.
The difference in this case is that with Nkandla, the public protector found that the president had benefited personally. His breach was to protect his "ill-gotten gains", as Economic Freedom Fighters counsel Wim Trengove put it.
That is why Trengove said it was not enough for the president to say simply, okay, I was wrong in law, and I will pay back the money. And perhaps this was why Gauntlett ended up making the political appeal he did.
• Rabkin is law and constitution writer