Nkandla returns to haunt Zuma

Opposition parties were subjected to a seven-hour grilling by Constitutional Court judges yesterday on whether they had exhausted Parliament’s internal remedies in their bid to set up a process that would determine whether President Jacob Zuma’s conduct following the court’s Nkandla ruling warranted his impeachment, notes Legalbrief. It reserved judgment on the application brought by the EFF and other parties who told the court that they wanted the establishment of a fact-finding ad hoc committee that would force Zuma to answer questions about his conduct during the Nkandla debacle. The parties, including the UDM, COPE and the DA, strongly felt that no action had been taken against Zuma after the Constitutional Court ruling in March 2016 which found that Zuma had failed to uphold, defend and respect the Constitution, says a News24 report. They said there was no doubt that there was prima facie evidence for impeachment proceedings to be instituted against Zuma. However, Hamilton Maenetje, representing Speaker Baleka Mbete, argued against applications brought for various orders directed against Mbete and Zuma. The orders include one declaring Mbete failed to put in place all appropriate procedures and mechanisms to hold Zuma accountable following the President's failure to implement recommendations in the former Public Protector's report into Nkandla in 2014. Maenetje said: ‘Our submission is that judgment rests with National Assembly.' He asked the court not to declare failure to fulfil constitutional obligation on Mbete's part. Asked why Mbete had not taken the initiative to establish an ad hoc committee to investigate Zuma's conduct, Maenetje said: ‘The Speaker doesn't set up ad hoc committees, it's the responsibility of National Assembly.' The justices grilled Maenetje, saying that holding executives accountable rested on all the members of the National Assembly, including the Speaker.

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Advocate Dali Mpofu, for the UDM and COPE, said he believed that a fact-finding inquiry would force Zuma to account for his actions. Mpofu said the 27 question and answer sessions conducted by the National Assembly had been insufficient. He said an inquiry would allow interrogators to probe further and request evidence to prove the truth of what Zuma had said in his statements, notes a News24 report. He said question and answer sittings differed from inquiry hearings. ‘In an inquiry nobody is going to ask you to sit down or raise a point of order,’ he said. Mpofu said the inquiry would be an opportunity for Zuma to answer questions. ‘Nobody is going to tell you that that question had been answered. Nobody is going to switch off the mic. We are coming to the court to say the correct process is that there must be an inquiry,’ he said. Mpofu said it should be determined whether Zuma violated the Constitution knowingly or if he was given bad advice. However, Deputy Chief Justice Raymond Zondo said there had been poor communication between the parties. ‘Does this not tell us that there is a problem ... (that) these parties are not talking to one another,’ Zondo asked. He wondered why opposition parties were turning to the courts for answers when solutions were available in the National Assembly. He said if parties in Parliament communicated better, issues would be resolved with more success in the House.

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The EFF argued that Mbete had at her disposal the tools to set up such a fact-finding exercise, but had simply failed to do so. And, according to a Mail & Guardian report, Advocate Steven Budlender, for the DA, found himself responding to what the DA characterised as a complete legal about-turn on behalf of Mbete on Monday. Mbete had been due to file a reply to the DA’s arguments on Thursday. Instead she travelled to Iran, leaving Deputy Speaker Lechesa Tsenoli to deal with the papers. A new legal team started that work on Friday, and delivered their paperwork barely 24 hours before Tuesday’s marathon session of arguments. In the late reply Tsenoli said that the rules around ad hoc committees of Parliament, such as the one that recently investigated the SABC, could be used to find facts on Nkandla, Budlender contended. ‘She’s changed her case, she should be commended for having changed it now,’ Budlender said of the Tsenoli submission. The suggestion that an ad hoc committee could serve the purpose was a ‘complete contrast’ to the impression Mbete had originally created, Advocate Kameshni Pillay told the court for Corruption Watch, a friend of the court. It was exactly the kind of last-minute concession that Mbete made when challenged on her handling of Nkandla in February 2016, Mpofu said. In her original affidavit on the matter, Mbete mentioned an ad hoc committee once, as the last in a list of mechanisms that can be used to hold a President to account. In his affidavit on Monday, Tsenoli referred to such a committee 34 times.

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Chief Justice Mogoeng Mogoeng grilled the EFF’s legal counsel on the need for a parliamentary investigation, when the Constitutional Court and the Public Protector had already pronounced on Nkandla. Advocate Tembeka Ngcukaitobi for the EFF argued that there had not been scrutiny of Zuma’s conduct by Parliament, despite prima facie evidence of misconduct on his part. He argued that the National Assembly and Mbete, as its head, had a responsibility to hold the executive to account. A BusinessLIVE report says Justice Chris Jafta asked whether it was not the responsibility of any member of the National Assembly to initiate the process, including the opposition parties who brought the matter to court. He said the National Assembly could only act through its members. But Ngcukaitobi argued that Mbete had rejected the EFF’S proposal for such a process. Mogoeng asked what should be made of the President’s failing to uphold, defend and respect the Constitution, as stated by the Constitutional Court in its judgment. ‘Does it say that he violated the Constitution in a serious way? So what is there to investigate? Are you going to investigate whether that conclusion by the Constitutional Court is a serious violation or a minimal violation,’ Mogoeng asked. Ngcukaitobi replied that an inquiry should be held for the President to explain himself. He said the finding of seriousness by the court did not displace the obligation by the National Assembly and that it should still exercise its constitutional function. ‘We want an investigation on what he says for himself and want to know whether he lied to Parliament,’ Ngcukaitobi said.

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