Nkandla: DA to proceed with arguments before the ConCourt

03 February 2016

Note to Editor: These are the remarks delivered at a press conference held in Parliament. The Leader was joined by the Chairperson of the DA's Federal Executive, James Selfe MP, and DA shadow Minister of Justice, Adv Glynnis Breytenbach MP.

The DA, after taking legal advice, has decided to proceed with presenting our Heads of Argument before the Constitutional Court scheduled for Tuesday, 09 February 2016. In so doing we will be seeking the relief outlined in our Notice Of Motion.

The DA notes the settlement offer made by President Zuma but contends that the contents of his settlement offer do not comply with the remedial actions as ordered by the Public Protector in her report entitled Secure in Comfort. In fact, we contend that the President designating the Auditor-General (A-G) to come to a determination as to how much he is liable is the latest attempt to establish a parallel process, for a fifth time.

Specifically, the DA will argue that President Zuma’s failure to engage rationally with the Public Protector’s findings and remedial action pertaining to him was manifestly irrational, illegal and unconstitutional. We furthermore contend that the President’s decision to substitute the remedial action ordered by the Public Protector with a determination by the Police Minister, SIU or Parliament  on whether he was liable for any of the costs was illegal and unconstitutional.

Legal precedent at present, as established by the Supreme Court of Appeal (SCA), is very clear that “an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to the of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings taken by the Public Protector.”

Furthermore, should an affected body or individual seek to challenge the findings and remedial actions of the Public Protector they should do so by way of a review application in a court of law. The President to date has not done so; he has instead frustrated the work of the Public Protector by way of erecting parallel processes, which have no legal basis.

Legal certainty about the powers of the Public Protector, and the force and effect of remedial action taken by the Public Protector, are vital to the successful functioning of our constitutional democracy. That is why the Democratic Alliance (DA) took the SABC and the Minister of Communications to court when they disregarded the remedial action ordered by the Public Protector to suspend Mr Hlaudi Motsoeneng, and to institute disciplinary proceedings against him.

It is clear that the President Zuma has deployed a contingent of Ministers and ANC Members of Parliament to defend the indefensible act of constructing a palace at the expense of the people of the Republic. Those doing the President's bidding have even gone as far as ignoring Court judgements in order drive a political agenda, despite swearing in their oath of office to uphold the Rule of Law and the Constitution of the Republic. Now before the highest Court in the land, we are confident that the Constitutional Court will bring the Nkandla matter to its logical conclusion by determining that President Zuma do what the Secure in Comfort report by the Public Protector ordered; which is that he pay back a reasonable percentage of the costs of the non-security upgrades to his private residence.

For too long President Zuma and the ANC have abdicated their responsibility to uphold the Rule of the Law and the Constitution, but have done everything to undermine to the work of the Public Protector and the Constitution.

The Constitutional Court will, on Tuesday, consider this matter in order to provide legal certainty about the Public Protector’s powers. The law has been developed in some degree in the Schippers judgment, confirmed by the SCA and that the Constitutional Court will rule definitively on the matter.

Statement issued by DA leader, Mmusi Maimane, 3 February 2016