Zuma’s payback offer might not be enough

President Jacob Zuma’s offer to pay back some of the costs of the upgrades to his Nkandla home might remove the need for the Constitutional Court to deal with the matter.

But this did not mean the court should not still engage with the determination of the powers of the public protector.

This is the opinion of constitutional law specialist Professor Karthy Govender from the University of KwaZulu-Natal, who said Zuma’s proposal to pay back some of the money meant the issue to be determined by the court would become moot.

In his letter to the registrar of the Constitutional Court on Tuesday, Zuma said he approached the challenge by the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA) on the basis that the issue of the exact nature and ambit of the public protector’s powers was pending before the Constitutional Court in another matter.

That matter is the one between the SABC and the DA about the appointment of SABC boss Hlaudi Motsoeneng, in which the Supreme Court of Appeal held last year that the remedial action recommended by the public protector had legal effect and could not be ignored by state and public institutions.

The DA indicated yesterday it would continue with its application in the Nkandla matter on February 9.

It wants the court to declare that Zuma’s initial refusal to comply with the remedial action recommended by the public protector in her report “Secure in Comfort” was unlawful and invalid.

The DA said legal certainty about the powers of the public protector, and the force and effect of remedial action taken by the public protector, were vital to the successful functioning of the country’s constitutional democracy.

“That is why the Democratic Alliance took the SABC and the minister of communications to court when they disregarded the remedial action ordered by the public protector to suspend Hlaudi Motsoeneng, and to institute disciplinary proceedings against him,” the party said yesterday.

In a short statement yesterday, public protector Thuli Madonsela welcomed Zuma’s willingness to engage regarding compliance with her remedial action.

Madonsela said she would advise the president on her position and file her formal response in the Constitutional Court in due course. Govender said the Constitutional Court had said in the past that if a serious constitutional issue was to be determined, even if the case was moot, the court could still deal with the matter.

He cited the 2004 case of Khosa and others v minister of social development and others.

In that case, the court said an offer to settle the dispute made by one litigant to the other, even if accepted, could not cure the ensuing legal uncertainty.

It said even if the applicants had accepted the offer, it would have settled the dispute only between those litigants.

“The highest court in the land should provide clarity on the legal status of the recommendations made by the public protector,” Govender said.