Constitutional Court to Zuma: 'Pay back the money!' by RDM Staff, 31 March 2016

31 March 2016

The Constitutional Court has found that President Jacob Zuma was in violation of the constitution when he failed to comply with remedial action recommended by the the public protector's office and must pay back a portion of the money for the Nkandla upgrade.

Chief Justice Mogoeng Mogoeng said: "The remedial action that was taken against the president has a binding effect."


"The president should have decided whether or not to comply with the public protectors remedial action or not." If Zuma had objected to Madonsela's recommendation, he should have challenged it "through a judicial process".

"The president failed to uphold and defend the constitution."

He said that independent institutions such as the public protectors office were "the sharp and mighty sword that stands ready to chop" off the head of the abuse of state resources.

The judgement also found that the national assembly was entitled to "scrutinise" the public protector's remedial action. "It is not for this court to prescribe to parliament" to fulfill its constitutional responsibilities.

Mogoeng said the public protector was "one of the most invaluable constitutional gifts to our nation in the fight against corruption. She is the embodiment of the biblical David that fights the Goliath that impropriety by government officials are."

He said: "The office of the public protector was created to strengthen constitutional democracy. The institution of the public protector is pivotal to the facilitation of good governance in our constitutional democracy. It is supposed to protect the public."

Refering to public protector Thuli Madonsela, he said: "She is not to be inhibited or undermined. Our constitutional democracy can only be strengthened when there is intolerance of the culture of impunity."

He said of Zuma: "He is the first citizen of this country and occupies a position indispensable for the governance of this country."

Mogoeng outlined Zuma's authority, saying:  "Whoever and whatever poses a threat to our sovereignty, our peace and prosperity, he must fight. The nation pins its hope on him to steer the country in the right direction. He is a constitutional being by design, a national pathfinder" and "the personification of this nation's constitutional project."

"He is, after all, the image of South Africa," said Mogoeng.

Turning to parliament, he said: "The national assembly and by extension, parliament .. is the voice of all South Africans especially the poor. It is the watchdog of state resources. It fulfills a preeminently unique role of holding the executive accountable."

The court’s finding comes after years of intense politicking since the public protector, Thuli Madonsela, found that Zuma had ‘unduly benefited’ from the construction at Nkandla and should pay back a portion of the money.

In her report in 2014 titled "Secure in Comfort", Madonsela said some features included in the R246-million security upgrades to Zuma's Nkandla residence were not security features. These included a cattle kraal, chicken run, visitors' centre and pool.

But Zuma did not ‘pay back the money’, instead he prevaricated and eventually referred the matter to his police minister, Nathi Nhleko, who conducted his own inquiry to establish whether he owed anything.

Nhleko produced a report which found he did not owe a cent, which was adopted by parliament after a fractuous debate. By then parliament had been brought to a standstill on several occasions by the EFF.

The EFF took the matter to the constitutional court.

In February the justices of the court heard argument in the matter. Zuma’s counsel, Jeremy Gauntlett SC, surprised all when he abandoned Zuma’s dogged defiance and said the president wanted to bring it to a close.

Gauntlett refered to the finding by the Supreme Court of Appeal that remedial action prescribed by the public protector was binding.

“It is not necessary for this court to re-plough the furrow," he said.

Parliament was shown up during the hearing for its finding that Zuma did not owe money.

Advocate Lindi Nkosi-Thomas, appearing for the Speaker of the National Assembly, argued: "The public protector cannot dictate to parliament what to do."

But when chief justice Mogoeng Mogoeng asked: "So it was open to Parliament to effectively render the remedial actions of the public protector void?" she conceded: "Parliament took a wrong position."

Counsel for the EFF, Wim Trengove SC, asked the court to go ahead and make a finding on the matter despite Gauntlett’s concession that Zuma had to pay back the money.

"As far as the president is concerned, he has violated his duty to assist the public protector. This means the president has violated his duty to uphold his office. He has, for nearly two years, defied the public protector," Trengove Constitutional law expert Pierre de Vos said of Gauntlett’s concession: "The president obviously threw parliament under the bus ... it was impossible, after the president conceded, for the representative of parliament to come with a sound argument."

"The question that it raises is whether parliament has ever understood its proper role in our system of separation of powers, which is to hold the executive accountable. Why is it that they acted in a way they did, which seemed, to informed legal minds, not wise?"

He said: "Parliament, in terms of the constitution, has the discretion to impeach the president if he is in breach of the constitution."