President Jacob Zuma violated the Constitution and his oath of office over his treatment of Public Protector Thuli Madonsela’s recommendations that he pay back some of the money spent on his home at Nkandla, the Constitutional Court heard on Tuesday.
“This could not be a more flagrant violation of his duty as president to protect the Constitution,” said Wim Trengove SC, presenting arguments for the Economic Freedom Fighters (EFF).
The EFF, which has at times brought Parliament to a standstill by shouting “pay back the money” at Zuma, wants the court to order that he comply with Madonsela’s report Secure in Comfort, which recommends he pay back a portion of the money not related to security upgrades.
The Constitution says a president must “uphold, defend and respect the Constitution”, said Trengove.
When Zuma took his oath of office in 2009, he also vowed to defend and abide by the Constitution.
And, within the Constitution, he was required to assist and support the public protector.
“He is our leader. It is his duty in the first place, not only to obey, but to uphold defend and protect the Constitution,” said Trengove.
“He defied the Public Protector as president of the country in order to protect his ill gotten gains.”
Madonsela had ordered him to make restoration to the state, but he had defied her “to protect the wealth he had obtained unlawfully”.
It was not only Zuma’s conduct at the time, but his response to her report also constituted a violation of the Constitution.
“All of us are bound by the Constitution, and all of us have to obey the Constitution.”
He said there was also an added duty on Zuma to do so.
“These were violations by the president, despite his duty to the Constitution.”
He said the public protector’s reports did not have the same status as a court, but they were still binding administrative orders.
The public protector’s office was not simply there to help people litigate – it had its own “original power”.
It was not possible to simply defy an order by the public protector. If there was a dispute, it should be put to review.
He said the Speaker of the National Assembly had to make sure all reports were dealt with equally, but Speaker Baleka Mbete had declared that the public protector’s reports were not binding.
Trengove said the ad hoc committee in Parliament dealing with Nkandla gave itself power to judge Madonsela’s findings.
They overturned all her findings, and their recommendations were endorsed by Parliament, where the ANC holds a majority.
“The National Assembly violated its constitutional obligations by not holding the president and his Cabinet to account.”
They also adopted Police Minister Nathi Nhleko’s report which cleared Zuma of having to pay back any money. They were supposed to hold Zuma to account. “That’s not holding to account, that’s whitewashing,” submitted Trengove.
Chief Justice Mogoeng Mogoeng, known for being a strict time keeper, has limited argument to 10 minutes per counsel, but the argument lasted a little longer as judges questioned Trengove on his argument.