William Saunderson-Meyer
William Saunderson-Meyer

David kicks Goliath in the Nkandla gonads

The Constitutional Court judgment on Nkandla and the powers of the public protector has been hanging above the heads of President Jacob Zuma and the African National Congress government like an unexploded bomb. That it was delivered on Thursday, a mere six weeks after counsel for both side delivered their summations, was a sign that the court found the issues to be relatively clear cut.

And so it was. A unanimous bench of 11 judges delivered not only a stinging rebuke of the treatment of the public protector by the executive and the legislature, but affirmed unambiguously the protector’s role in guarding democracy. Chief Justice Mogoeng Mogoeng, who tellingly himself wrote the judgment instead of delegating it, also ruled that Zuma and the National Assembly had failed to uphold, defend and protect the Constitution, as demanded by their oath of office.

En passant, Mogoeng also confirmed what Zuma had conceded in February, as he tried to avoid going to court. That Zuma would implement the protector’s recommendations and repay a reasonable proportion of the state work done on his private home, as well as reprimand and discipline the ministers responsible, was made an order of the court. Stingingly, and unusually in a case of this nature, costs were awarded jointly against Zuma, the minister of police and the National Assembly.

At its most fundamental Mogoeng’s judgment was Civics 101, spelling out to a president and parliament the constitutional parameters to their powers. It was delivered in language simple enough for a high school student now to be able to explain to arrogant politicians and their inept, sycophantic advisers how they had got it so wrong.

At its most eloquent it was an erudite and passionate defence of the rule of law and the importance of the public protector in protecting the poor and the marginalised, who lack the financial resources to litigate, from state corruption and impropriety. At stake were “monumental issues” that delivered “profound lessons”, wrote Mogoeng.

Constitutionalism, accountability and the rule of law together make “the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck”. The public protector “is the embodiment of the biblical David, that the public is, who fights the most powerful and very well-resourced Goliath, that impunity and corruption by government officials are”.

These are words to hearten the public protector and those who seek to defend South Africa against “state capture”. It is after all the Gupta family’s controversial relationship with Zuma and claims that the Guptas were appointing and firing cabinet ministers and the heads of state entities, that are matters next in line for Thuli Madonsela’s scrutiny.

Similarly, the judgment must make impregnable the position of Finance Minister Pravin Gordhan and his deputy, Mcebisi Jonas, who are under siege by the Zupta axis. It is the Treasury that must determine what “reasonable amount” Zuma must repay and, in light of the judgment, to sideline either man will bring howls of protest, including from within the ANC.

Mogoeng makes short shrift of the argument that because the protector is not a judicial officer, her findings are not binding. To be effective, ruled Mogoeng, her findings had to be binding.

If they are binding, compliance is not optional. To ignore the findings is to invite legal consequences and the only recourse for those who disagree with them, is to challenge them in court.

This is exactly what Zuma hoped to avoid, when at the last minute he tried to head off a Constitutional Court ruling by offering to settle. What in February was an inconvenience confined to Nkandla is now a legal principle that immeasurably strengthens the office of the protector.

Of course, the law can never entirely trump political manoeuvring. Prior to Madonsela, the protector’s office was pretty much useless. Unfortunately for Zuma that the demure, softly-spoken woman he appointed turned out to have a thick skin, steely spine and unshakeable commitment to the Constitution.

Madonsela’s term ends in October. It is likely, if what one hears about the Guptas is true, that there is already a list for Zuma of pliant ANC jellyfish from which to choose a replacement. It’s not going to be that easy to act so blatantly, in the light of the court’s findings.

While this judgment makes the impeachment of Zuma arguably an appropriate sanction, Mogoeng offers ANC MPs some wriggle room: “[President Zuma] might have been following wrong legal advice and therefore acting in good faith.” In any case, the reality is that the parliamentary ANC would never vote for the impeachment of Zuma, making opposition plans in this regard fine but futile political theatre.

Nevertheless, the judgment is an important ray of light in grim times. Whatever the extent of state capture, the judiciary clearly remains feisty and independent. This will disappoint equally Zuma supporters and doom-saying Zuma opponents.

It’s also a reminder what our 1994 vision for ourselves was. It was for a democracy where our president, in the words of Mogoeng, has “the highest calling to the highest office … [is] a national pathfinder, the quintessential commander-in-chief of state affairs and the personification of this nation’s constitutional project”.

Yeah, I know. And instead we got Zuma.

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