Don't shoot the messenger on Nkandla - commentators

While commentators have appealed to ANC leaders not to shoot the messenger - Public Protector Thuli Madonsela - the man Zuma charged with determining whether he should repay any money is stalling. A report on the Mail & Guardian Online site notes Police Minister Nathi Nhleko has not yet started determining whether Zuma should pay back part of the money spent upgrading his KZN homestead, Beeld reported yesterday (Wednesday). He reportedly told the publication that he would not consider the Nkandla matter before the parliamentary processes had been completed. 'The report of the president is currently in the hands of Parliament and it must still be handled in Parliament,' he was quoted as saying. 'Only after Parliament completes the process and accepts a resolution over the report, will I investigate the Nkandla matter in terms of the police portfolio.' In her report on the R246m spent on security upgrades at Nkandla, Madonsela indicated the President needed to repay all non-security related expenses at Nkandla. Zuma deflected a decision on whether he should repay any of the money spent at Nkandla to Nhleko, instructing him to report to Cabinet on the matter. Parliament has begun setting up an ad hoc committee to consider Zuma's response to the Nkandla controversy. Full report on the Mail & Guardian Online site

Constitutional law experts point out that the Public Protector's letter to Zuma telling him to pay his Nkandla dues and uphold the rule of law 'is not legally controversial' and that Zuma is out of line, notes Legalbrief. Madonsela is well within her rights to report on government's conduct, the Centre for Constitutional Rights said. 'Apart from investigating maladministration and abuse of power, in terms of section 182, the Public Protector also has the power, as regulated by legislation, to ''report on that conduct'' as she sees fit and in her sole discretion, ''take appropriate remedial action'',' the CRC said. According to the CRC, recent criticism of Madonsela and her office was unnecessary. 'This criticism is unfounded, both in context of the Constitution as well as the Public Protector Act.' According to The Times, Richard Calland, UCT associate professor in public law and spokesperson for the Council for the Advancement of the South African Constitution, warned that 'a constitutional crisis could arise if, for example, Parliament fails to do its constitutional duty and uphold the findings of the Public Protector and ensure that the recommendations are adhered to by the executive, including the President'. Full report on the News24 site Full report in The Times

The Institute for Accountability in SA takes the issue further, urging the ANC to consider 'recalling' Zuma, saying his credibility is so tainted that allowing him to continue in office would be 'unpatriotic'. Paul Hoffman , director of the institute, cited the corruption charges against Zuma that were dropped in dubious circumstances in 2009, the spy tapes saga, his failure to appoint an independent head of the NPA, and the Nkandla fiasco as reasons for firing the President, notes a report in The Times. 'All these things are accumulating to the point at which his personal credibility is so tainted that the ANC, if it is patriotic and loves this country, ought to be thinking about replacing Zuma,' Hoffman is quoted as saying. Constitutional law expert Professor Shadrack Gutto said Zuma had shown that he was not inclined to act in accordance with the Constitution or the rule of law. 'It is clear that the President is trying to dodge the laws of the country,' he said. 'We cannot have a President who does not care about the Constitution and the law, and he should be removed,' Gutto is quoted as saying. Full report in The Times

Madonsela's letter has drawn a scathing response from the ANC. Thuli Madonsela should respect Parliament's handling of the Nkandla saga, the ANC Chief Whip's office said. 'The Public Protector ought to respect the process ... and refrain from engaging in extra-parliamentary processes,' spokesperson Moloto Mothapo said, according to a report on the IoL site. 'Our view is that, rather than directing her views to the President, she must await the ad hoc committee process where she would have an opportunity to table them.' The Sunday Times and City Press both reported that Madonsela had written to Zuma noting that in his 20-page reply to her report he did not address her findings or remedial action. According to a report on the News24 site, the ANC said it held the view that the 'Public Protector has done its work which it referred to Parliament for further processing'. Spokesperson Zizi Kodwa said the letter could be interpreted as undermining the parliamentary process, and its authority to process the matter. 'It does appear that while the Public Protector has submitted her report to Parliament she has no confidence in the institution and its independence as the arm of state,' Kodwa said. 'With reluctance, we suspect that the Public Protector has dealt with the investigation as a personal matter outside of the constitutional mandate of the office.' He added: 'The extraordinary conduct of the Public Protector raises questions about her neutrality on this matter which might undermine the credibility of her conduct or the intentions of her report.' Full report on the News24 site Full report on the IoL site

The ANC doesn't want her out of office before the end of her term but she must do her job correctly. That barely-disguised threat was contained in a statement by party secretary general Gwede Mantashe yesterday, notes Legalbrief. 'We don't want to remove the Public Protector, we want the Public Protector to do her work correctly and behave correctly,' Mantashe is quoted as saying in a report on the News24 site. Pushing the theme on her term of office, he added: 'We have no interest in removing her. She must finish her term but she must not abuse that term.' Mantashe said there was a sense that Madonsela was abusing her office and was always trying to get the attention of the media by saying things that were not in any report or being investigated anywhere. Mantashe also accused Madonsela of acting 'above the Constitution' and of casting SA in a negative light. According to Business Day, he accused Madonsela of speaking out on continuing investigations while on road shows in SA and abroad, which 'unavoidably' cast the country in a 'bad light'. Full report on the News24 site Full Business Day report (subscription needed)

The letter gives Zuma two weeks to tell the Public Protector why he should not pay back a portion of the R246m lavished on his Nkandla home. The Sunday Times says the letter carries a clear challenge to Zuma to fall into line with the law. Amid claims from Zuma's office that it had already responded to all reports on the Nkandla scandal, Madonsela points out that Zuma has in fact not responded to her report. 'I could find no indication in your report that you were responding to the contents of my report...', reads the letter. Madonsela also accuses Zuma of being guilty of an attack on the Constitution and the rule of law by granting Police Minister Nkosinathi Nhleko the power to review her findings. In a report to Parliament last week, Zuma said Nhleko had to decide 'whether the President is liable for any contribution in respect of the security upgrades' at his private home in Nkandla. In her letter, Madonsela says she finds his reasoning 'difficult to understand'. 'In terms of your report, Mr President, the Minister of Police now has to conduct another investigation into your liability for some of the costs incurred by the state at your private residence and it will then be for the Cabinet to deal with the matter,' she writes. This gives Nhleko 'power he does not have under the law ... to usurp the review powers of the courts', she writes. 'Reports of the Public Protector are by law not subject to any review or second-guessing by a Minister and/or the Cabinet. The findings made and remedial action taken by the Public Protector can only be judicially reviewed and set aside by a court of law.' She reminds Zuma of his duty to 'uphold, defend and respect the Constitution'. Full Sunday Times report (subscription needed)

Giving the Police Minister power he does not have would also encourage impunity at various levels of state, Madonsela warned, according to City Press. She said it would not augur well, in terms of the rule of law, if Zuma, at the pinnacle of government, did not uphold it. Madonsela said by taking this action, Zuma was indicating he was not happy with her finding that he pay back some of the money spent on non-security features at Nkandla. She reminded him that he was required by law to respond exhaustively to her findings about what remedial action he planned to take to address points she raised in the report. Presidency spokesperson Mac Maharaj said the letter had been received and was being attended to. Full City Press report Madonsela's letter to Zuma