Nkandla Watch

Will independent courts be the next victim?

Nkandla, scene of a continuing drama

Will the independence and integrity of South Africa’s courts become the next target of attack by the ANC in its seemingly no-holds-barred fight over the Nkandla affair.

As predicted, the next chapter of the ongoing Nkandla drama, which has already enjoyed an almost five year season since it opened with a report in the Mail and Guardian in December 2009, is set to take place in various courtrooms across the country.

The report of parliament’s ad-hoc committee on the security upgrades to President Jacob Zuma’s private residence at Nkandla is number six since the drama started. There have already been reports by the Public Protector (PP), the Special Investigative Unit, by the task team of the standing committee on intelligence, the task team of the department of Public Works and a response by President Zuma.

The parliamentary task team, consisting of only ANC members of parliament, last week responded publically on the draft report prepared for them by officials. It indicated that they will report, among others, that:

• The PP’s findings on Mr Zuma’s misspending on Nkandla and remedial action were not binding;

• It was not necessary to call Mr Zuma to answer questions before the committee as reports to date offered extensive information from “political office-bearers”;

• It accepts damning findings by the PP and others that regulations were flouted during the project, but that Mr Zuma carries no blame for it;

• Mr Zuma did not request the upgrades and the Minister of Safety and Security did not approve the design or cost of the project and that it was initiated and implemented without the necessary authority;

• The committee will request additions to the draft report to unambiguously exonerate Mr Zuma and recommend for steps be taken against officials “who flouted the law”;

• The final report should, contrary to the PP’s findings, pronounce that Mr Zuma did not contravene the Executive Ethics Code;

• There was gross negligence on the part of officials.

Against the background of a recent judgement by the Western Cape High Court in a case dealing with a PP report concerning the appointment of the CEO of the SABC, the committee’s chairperson, Mr Mathole Motshekga, claimed the PP’s insistence that the remedial she prescribed was binding was “informed by her wrong interpretation of the Constitution and the (Public Protector's) Act”.

He claimed that based on that, the insistence that Mr Zuma should reimburse the state “has therefore collapsed”.

What he did not respond to was the part of the judge’s pronouncement that the PP’s instructions could only be deviated from if rational grounds are declared “that would stand up in a court” (our emphasis).

None of the reports that the committee relied on to come to its conclusion were the result of a process that nearly represents the proceedings of a court of law, which would include the cross-examination of those appearing before it.

Rules of the game to change

That situation is set to change. Not only has the opposition in parliament already indicated that they will now take the matter to the Constitutional Court but the PP, Thuli Madonsela, has indicated she will take Judge Ashton Schippers’s High Court ruling to review.

She told reporters she believed the Constitutional Court was best placed to determine her powers under law.

Then there is the civil action that has been instituted by Public Works against Mr Zuma’s private architect and the man contracted to manage the project. He gave notice he would contest the claim and has already asked for official documentation related to the project to be released to him.

There are also a number of officials of the department against whom disciplinary action has been instituted. They also indicated that they believed they were acting under official (political) instructions and would defend themselves.

It can be expected that the ANC, which seems to have staked its total reputation as party on defending Mr Zuma in the Nkandla matter, will do everything to keep him out of court. As the law stands there is no way that Mr Zuma could avoid the court should he be subpoenaed to appear in any of the upcoming court cases.

To date the ANC has in its ‘protect Zuma campaign’:

• Destroyed the integrity of parliament as the constitutional institution responsible to hold the executive accountable, to the extent that Mr Zuma does no longer pitch for question time. The DA parliamentary leader, Mmusi Maimane, has asked for a “debate of national importance” in terms of the rules of parliament about the matter; and

• Done everything possible to attack the independence and integrity of the PP. Its SA Communist Party governing alliance partner has gone as far as, citing the Schippers judgement, accusing her in probably defamatory language of: “… misleading the public and misrepresenting the powers of this office by claiming that her decisions are binding unless reviewed by a court of law. She, together with the DA, the band of anti-majoritarian liberals as well as large sections of the media, have actually been telling a lie in this regard”;

It can be expected that the judicial system will be next in line for attack. No one should be surprised if legislation is again introduced, as happened some years ago to indemnify President Nelson Mandela against subpoenas during a court case involving the late Dr Louis Luyt.

Nkandla has been casting a long shadow over South Africa’s political scene for a long time now. It is about to enter a new phase that could see the country’s democracy and its constitution facing their sternest test yet.

In the words of veteran former ANC MP Ben Turok when he recently spoke to journalists: “Everybody is sick and tired of Nkandla. … some of the institutions that are supposed to resolve situations where public money has been misspent have been rendered impotent by the political stalemate over the scandal.”

by Piet Coetzer

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