Judgement was reserved in the EFF and DA’s application to the Constitutional Court for an order that President Jacob Zuma pay back some of the R246m spent on his home in Nklandla.
This means Zuma and Speaker Baleka Mbete might have to endure even more heckling during the State of the National Address on Thursday after some startling revelations were submitted in the stand-off with two opposition parties in the court in Johannesburg on Tuesday.
The Economic Freedom Fighters and Democratic Alliance, fed up with Zuma not paying back any of the money, as recommended by the Public Protector, took Zuma and Mbete to court.
They had applied for an order clarifying the powers of the Public Protector, and that Zuma be ordered to pay some of the money back that was spent on non-security items – like the swimming pool initially called a “fire pool”, and a cattle kraal.
Last year, Zuma laughed in Parliament about what he regarded as a fixation with Nkandla, but in an about-turn he made an offer this year through his lawyers in the hopes of settling the matter.
He has proposed that the Auditor General and National Treasury arrange a calculation of how much of the R246m spent on non-security upgrades he should pay back.
But Public Protector Thuli Madonsela said that only she could decide whether to change her conclusions, and until that is done, Zuma had to abide by what she ordered.
‘Flagrant violation of his duty’
Zuma was not in court on Tuesday – instead he was telling business people and economists that “every cloud has a silver lining” during a lunch in Cape Town.
Madonsela was among those present in court as EFF lawyer Wim Trengove said Zuma had violated the Constitution and his oath of office over his treatment of her recommendations.
“This could not be a more flagrant violation of his duty as president to protect the Constitution,” said Trengove.
The Constitution says a president must “uphold, defend and respect the Constitution”.
When Zuma took his oath of office in 2009, he also vowed to defend and abide by the Constitution. And, within the Constitution, he is required to assist and support the public protector.
“He is our leader. It is his duty in the first place, not only to obey, but to uphold defend and protect the Constitution,” said Trengove.
“Zuma defied the Public Protector as president of the country in order to protect his ill gotten gains.”
It was not only Zuma’s conduct at the time, but his response to her report also constituted a violation of the Constitution. He said the National Assembly also violated its own constitutional obligations by not holding the president and the Cabinet to account.
‘Quick and dirty’
The report Nhleko prepared which said Zuma did not owe anything had no standing, he added.
As far as the EFF was concerned, Zuma had done all of this through bad faith or ignorance of the law and it was causing chaos in Parliament.
The DA believed that the buck stopped with Zuma and that the National Assembly had not done its job properly.
When it was the turn of Zuma’s lawyer, the court heard that the Nkandla saga had “traumatised the nation in many ways”.
Zuma’s lawyer, Jeremy Gauntlett, said this was why he had made his proposal regarding the Auditor General and Treasury.
He claimed the Public Protector Act was a “statutory curiosity” because the law did not elaborate what had to be done regarding remedial action.
Zuma accepted that Madonsela wanted certain things done, but differed on how it had to be done, he added. Zuma had lamented the “problem with perception” regarding Nhleko’s report and, according to Gauntlett, the report was not relevant.
He blamed the Department of Public Works, and the “ministers involved” for the controversy, rather than Zuma.
He also likened Madonsela to an ombudsman who did a “quick and dirty” assessment of the situation, then wanted somebody else to calculate how much was owed.
He put the blame squarely on the shoulders of the Deparment of Public Works and also said Nhleko’s report meant nothing.
But it was William Mokhari’s – advocate for Police Minister Nathi Nhleko – submission that Parliament had asked Cabinet to look into the report and Cabinet had given it to Nhleko to investigate.
He made the startling claim that Nhleko went ahead in spite of knowing what he was doing was unlawful.
But later, after questioning from the judges, he said this was not what he meant. He meant that Nhleko was merely following Cabinet’s instructions, he explained.