Judicial history was made in South Africa on Thursday morning when the Constitutional Court announced that President Jacob Zuma had defied the Constitution when he and the National Assembly decided to set aside remedial actions by Public Protector Thuli Madonsela.
“The president failed to uphold, defend and respect the Constitution,” Chief Justice Mogoeng Mogoeng said as he read through a unanimous judgment by the justices in the Constitutional Court.
Two years ago, Madonsela probed upgrades at Zuma’s Nkandla homestead in KwaZulu-Natal. She found that not all the multi-million rand upgrades were for Zuma’s security.
Pay back taxpayers’ money
She then recommended that he personally pay back the taxpayers’ money spent on non-security upgrades, including a visitors centre, an amphitheatre, a chicken run, a cattle kraal and a swimming pool.
For the past two years, Zuma has gone against calls from Madonsela and opposition parties to pay back the money. He maintained he had not unduly benefited from the upgrades, adding that he had not asked for them.
Investigations by an ad hoc committee appointed by the National Assembly, and a report by Minister of Police Nathi Nhleko, also found in his favour.
But just days before his matter went before Constitutional Court, Zuma backtracked on his decision and issued a draft order in which he said he would uphold the Public Protector’s ruling and pay back the funds.
National Assembly resolution unlawful
On Thursday, Mogoeng spent time explaining the powers of the Public Protector and emphasised that her remedial actions could not simply be set aside, but could only be challenged in a court of law.
“By passing that resolution, the National Assembly effectively flouted its obligations. Neither the president nor the National Assembly was entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect or has been set aside through a proper judicial process,” Mogoeng said.
“The ineluctable conclusion is, therefore, that the National Assembly’s resolution was based on the minister’s findings exonerating the president from liability is inconsistent with the constitution and unlawful.”
Mogoeng also ordered Zuma to reprimand all the ministers involved in the Nkandla upgrades, as well as those who were part of the ad hoc committee that found Zuma not liable for any of the expenses incurred for the non-security upgrades at his home.
To the satisfaction of several opposition parties in the court, Mogoeng ruled that Zuma had to pay back the money 45 days after the National Treasury determined exactly how much he would have to cough up.
Dressed in a white blouse, a red jacket with a big black flower pinned to one side, a beaming Madonsela hosted a press briefing in Pretoria following the judgment where she gracefully accepted victory.
Madonsela said the Nkandla case was a blessing to her office. She said she felt vindicated, and that this marked an historic day for the country and its institutions.
“Today, the Constitutional Court restored hope in the constitutional dream for every ‘Gogo Dlamini’ out there who needs the Public Protector to hold government accountable,” she told reporters.
Madonsela used the name “Gogo Dlamini” to describe an “Average Joe” or a typical grandmother who was wronged by the state, but didn’t have the means to face it head on.
While delivering his judgment and explaining the ruling, Mogoeng likened Madonsela to the biblical David who had a duty to slay Goliath.
“She is the embodiment of a biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impropriety and corruption by government officials are. The Public Protector is one of the true crusaders and champions of anti-corruption and clean governance,” he said.
Following the ruling, government sent a statement on behalf of Zuma in which it stated that he accepted the court’s ruling.