by | Apr 14, 2016 | Political Perceptions



The definitive ruling of the Constitutional Court on Thursday will surely go down as the most significant rulings made in the South African democracy, it has set in stone the principle that “no one is above the law” not even the President.

Chief Justice Mogoeng Mogoeng read out the unanimous decision of the Constitutional Court, the highest court in the land, whose decisions are final with no right of appeal. The most significant part of the unanimous judgment written by Chief Justice Mogoeng was that “the power of the Public Protector to take appropriate remedial action has legal effect and is binding. Therefore, neither the President nor the National Assembly is entitled to respond to the binding remedial action taken by the Public Protector as if it is of no force or effect, unless it has been set aside through a proper judicial process.”

Also of importance were the Courts findings that:

Ø  By failing to comply with the Public Protector’s order, the President failed to “uphold, defend and respect” the Constitution because a duty to repay the money was specifically imposed on him through the Public Protector’s constitutional power and was inconsistent with the Constitution.

The National Assembly’s resolution, based on the Minister of Police’s findings exonerating the President from liability, was inconsistent with the Constitution and unlawful.

There was no immediate response from the ANC in response to this seminal ruling because the ANC’s top six would have an urgent meeting to discuss the matter. What has now become obvious is that the meeting was not held to take action against the persons responsible to have “failed to uphold, defend and respect” the Constitution.

What this meeting at Jacob Zuma’s official residence was all about was to discuss how they could tell South Africans ‘to go to hell so that they would look forward to the trip’, nothing more and nothing less.

Zuma’s address to the Nation on Friday was filled with platitudes and lies. The President said he had intended to pay back money on the Nkandla project all along. “It was never my intention not to comply with the remedial action taken against me by the public protector or to disrespect her office.”

He does not seem to know that if you want to be a liar you must have a good memory. While canvassing in Gugulethu on Sunday 30 March Zuma was interviewed on Gupta television (ANN7) and said “They did this without telling me so why should I pay for something I did not ask for.”

Is this how a person reacts who now claims “It was never my intention not to comply with the remedial action taken against me by the public protector”?

Zuma further said “I wish to emphasise that I never knowingly set out to violate the constitution.” If one takes this action to its logical conclusion Oscar Pistorius said that he never knowingly set out to break the law and kill Reeva yet he was still found guilty of murder!

There is the well known legal maxim that Ignorantia juris non excusat (ignorance of law excuses no one) this is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because he or she was unaware of its content.

We have already established that “no one is above the law” not even the President. Yet Zuma and the ANC are claiming special treatment.

Neither Zuma nor the ANC are saying anything about what is going to happen about the Court Order that “The President must reprimand the Ministers involved. Nor are they saying anything about Madam Speaker who allowed parliament to violate the constitution. In a normal democracy they would be fired but in a Zuma government they will in all probability be reprimanded by being promoted as ambassadors!

Let us look at Zuma’s statement that it was never my intention to disrespect the office of the public protector.

If Zuma never intended to disrespect the office of the public protector nowhere is it recorded that either he or the ANC leadership criticised their Members of Parliament who did disrespect the office of the Public Protector.

ANC MP Mathole Motshekga chairman of the justice portfolio committee said the Public Protector’s report “misled the public and destroyed South Africa’s reputation around the world.”

ANC MP Thandi Mahambehlala said she was traumatised by the fact that the public protector would mislead SA into thinking Zuma had abused public funds.

On 9 October 2014 the first ad-hoc committee under the Chairmanship of ANC MP Cedric Frolick, which consists only of ANC MPs following an opposition walkout, resolved to refer the complaint of gross misconduct against Madonsela by Concerned Lawyers and Educationists for Equality before the Law, to Parliament’s portfolio committee on justice because her report was “littered with flaws, inaccuracies, inconsistencies, contradictions and inexcusable errors”. It damaged the reputation of the president and the country, and may have contributed to South Africa’s recent credit-rating downgrades

Madonsela offered to appear before the second ad-hoc committee if it believed it needed to be briefed on her report — something the opposition wanted, but ANC MPs resisted. DA MP Glynnis Breytenbach suggested that a solution to this issue would be to invite Madonsela to meet with the committee.

“For the colleagues who feel like they’ve been misled by Public Protector, we need to hear from her why she set the report out the way she did,” said Breytenbach. “It’s only fair that we clear things up with Public Protector like we plan to do with the Minister of Public Works,”

Frolick later told reporters: “The need has not arisen for any additional information from the public protector.”

The ANC appointed committees and a Cabinet Minister that frolicked around the country trying to exonerate the president from any liability from paying for which it “was never my intention not to comply with”

I look forward to reading the apologies to the Public Protector from these ANC members. Their resignation from Parliament would be the more appropriate response.

The mind boggles that of Deputy Minister of Justice John Jeffrey when stated at the AGM of the Black Lawyers’ Association Student Chapter, on 4 October 2014 “the remedial actions of the Public Protector is not binding nor enforceable and of no meaning or effect”. This is the man entrusted to ensure justice prevails in South Africa and yet he could not interpret or understand the constitution especially clauses 83(b); 181(3) and 182(1)(c). Certainly strange for an attorney whose CV states that he holds BA and LLB degrees.

It is not that he can claim to have relied on the findings of case of the Democratic Alliance v SABC and Others Schippers J in the Western Cape High Court. This ruling was only made on 24 October 2014 twenty days after his pronouncement.

Considering that this ruling was overturned by the Supreme Court of Appeals on 8 October 2015 yet he did not advise the president to “pay back the money”. Zuma only offered to pay back the money” some nine days before the case in the Constitutional Court and now he expects South Africans to accept his apology!

The appropriate action for Zuma to take in this regard is to say Minister of Justice John Jeffrey you are fired!” But of course he won’t.

The ANC through their ‘deployees’ in the Hawks are even investigating her for stating that her powers were legally binding. She states that she has evidence to prove this but her lawyers have advised her not to make it public at present. Naturally the Hawks will deny this but I would rather believe Thuli Madonsella rather than the Head of the Hawks Lieutenant General Berning Ntlemeza who is currently under investigation for perjury. Who do you believe?

The focus now shifts to the amount that Zuma has to pay back:

The court has ruled that the order only applies to the visitors’ centre‚ the amphitheatre‚ the cattle kraal‚ the chicken run and the swimming pool. It therefore appears that any other alterations or supplies will not be subject to the order

The decision that the Treasury determine the amount to be paid by the President may have raised some eyebrows. The a public tussle going on between the political head of the Treasury Finance Minister, his deputy Mcebisi Jonas and the head of the Treasury, as Zuma acolyte, Tom Moyane is common knowledge.

The question obviously arises is will they use the highly qualified accountants and quantity surveyors to do the evaluation or will Zuma’s man try to protect the President? Pravin Gordhan announcement that the determination will be “transparent, thorough and professional” gives us some hope of an honest assessment.

Fortunately the Constitutional Court does have to approve the amount to be paid.

The significant section of the order of the court is that the amount must be “paid personally by the President”.

The chaotic state of Zuma’s personal finances is well known. So how will ‘he personally’ pay the amount or will his friends and relatives do that? Have the Gupta’s, Vivian Reddy or his other ‘friends’ already given him a blank cheque to pay the amount.

Let us hope that SARS monitors this payment properly and scrutinises the source of the cash recover the tax on any donations or soft loans that he receives to pay the amount.

How the ANC responded?

At 20:00 ANC Secretary General Gwede Mantashe said “The ANC is convinced that there was no intention on the part of the president and ANC MPs to deliberately act inconsistently with the Constitution.”

During his media conference, although he denied it, it was abundantly clear that the ANC does in fact follow the Zuma dictum that they put the interest of the ANC above the interests of South Africa. Gwede Mantashe said for the African National Congress to remove its president amounted to a call to “tear itself apart”

So they took the easy route and did nothing.

So while sweeping this matter under their proverbial carpet the meeting of the ANC’s National Working Committee on Monday will no doubt still have to consider the following points.

  • The response from civil society and many ANC stalwarts to Zuma’s ‘apology’;
  • The potential credit downgrade of South Africa to junk status;
  • The case on whether the 783 charges of fraud against Zuma which the DA is trying to have reinstated rules against Zuma;
  • The Gupta’s and their involvement in the appointment of Cabinet Ministers and receiving government tenders;
  • The Gordhan/Moyane spat and the effect it will have on the perception of the South African economy;
  • The President’s lack of understanding of how the economy operates as demonstrated by the backlash of the firing of former Finance Minister Nhlanhla Nene;
  • The Al-Bashir case is still fresh in the minds of the international investors. Surely the ANC will not appeal the Supreme Court of Appeal’s judgment and risk another adverse Constitutional Court ruling;
  • The local government elections due later this year;

In most democratic countries a ruling such as this would have led to the immediate resignation of the President and the government. Anything less than the resignation will create the impression that South Africa is “just another failed African state”. This would certainly lead to a withdrawal of investment and the inevitable credit downgrade to junk status.

I shudder to think of Zuma interacting with foreign leaders or potential investors on our behalf.

These leaders must be aware that the strength of public opinion is not on their side. Only the winning of the Rugby World Cup in 1995 and the 2010 FIFA Football World Cup has excited and united South Africans from across all divides as Thursday’s Constitutional Court ruling has done.

Most South Africans have seen it as a renewal of the faith in the Democratic South Africa, as a renewal of our opportunity to unite and build the non racial, non sexist democracy where everyone has an equal opportunity to get ahead and where your future does not depend on corruption or the patronage of the well connected.

The ANC leadership will also be aware of the strong feelings among ANC stalwarts and their donors of continuing with the current president. Even many grass root ANC supporters that I have spoken to, while they are not prepared to vote for an opposition party, are adamant that they will not vote for the ANC in August.

Lessons that can be learnt from Nkanglagate:

There are a number of very important lessons that have emerged from the whole fiasco.

  • Never believe that your vote does not matter. This case has demonstrated that the minority of voters have managed to get the President and the National Assembly to be held to account;
  • The opposition parties although they have vastly different philosophies and ideologies can work together in the interests of South Africa;
  • The South African democracy is safe as long as we have an independent judiciary;
  • That the public must participate in public affairs, a new Public Protector has to be appointed this year, please participate in all opportunities of public participation that arise when the new appointment is made. South Africa needs another Thuli Madonsela;
  • Do not judge a book by its cover:
  • The September 2011 announcement that Justice Mogoeng was to hold the highest judicial position was met with severe critique from civil society and opposition parties who questioned the suitability of the president`s choice;
  • Although his manner may be obnoxious and his woodwork poor Julius Malema is no fool and his political acumen is sharp.

His decision to take the case directly to the Constitutional Court has proved to be the correct decision rather than working through the High Court and then the Supreme Court of Appeal.

This week he also received his BA degree from a recognised South African University.


The decision of the ANC does not inspire confidence, let us hope that all opposition parties and civil society join together in response to the ANC’s inaction and do what is best for South Africa.

They will be well advised to listen to Pravin Gordhan who said at a media conference on Friday that we must put the interest of the nation first”. The ANC did not, let us join together to do the right thing.

Until next time,



 This newsletter is published by Clive Hatch former Leader of the Opposition in the Mpumalanga Provincial Legislature and former DA Provincial Leader. These views are my personal views and do not represent those of any other person or organisation.

E-Mail:   clive.hatch265@gmail.com

Clive Hatch

About Clive Hatch

Clive Hatch is a political commentator and opinionist. He is a former Member and Leader of the Opposition in the Mpumalanga Provincial Legislature. After matriculating from Jeppe High School for Boys in 1967 Clive Hatch has lived, worked and been involved in the Emalahleni (Witbank) community.

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