#ConCourt: Judgement reserved; concessions made in Nkandla matter

The Constitutional Court has been hearing the DA and EFF's applications on upgrades at  President Jacob Zuma's Nkandla home. 

The opposition parties want the court to confirm the powers of the Public Protector, after Thuli Madonsela's findings and recommendations contained in her 2014 report on Nkandla titled "Secure in Comfort" were rejected by some and her mandate came under scrutiny.

When asked whether Minister Nathi Nhleko unlawfully conducted a secondary investigation knowingly, even after the Supreme Court of Appeal had ruled in another matter that Madonsela's powers are binding, advocate William Mokhari for Nhleko could not give a direct response.

"Well, he may or he may not. He may have said yes, it is all unlawful but I'll do it or he may have not said that. So that is a question that I cannot really answer but what we know is that as a matter of law, once he receives instructions from a body which has authority over him; he must carry that instruction," he said. 

There follows similar concessions by the legal representatives of National Assembly Speaker, Baleka Mbete and President Jacob Zuma.

Earlier today, advocate Lindi Nkosi-Thomas for Mbete was forced to concede that Parliament made a mistake in the way it handled the Nkandla issue and did not carry out its oversight role regarding the President Zuma.

"There is no pain saying, Chief Justice, that Parliament acted on the wrong principle thinking that the principle was correct. That is all we can submit in that regard," she said. 

 But Nkosi-Thomas also argued that the Public Protector's remedial powers do apply to Parliament.

"What is wrong with that, Chief Justice, is that it confers a power to the Public Protector that she does not have. 

She cannot dictate to Parliament," she said. 

Advocate Jeremy Gauntlett for President Zuma agreed that the Public Protector's remedial actions on Nkandla are legally binding and that his client should have abided by them. 

Gauntlett told the court he does not contest the fact that Thuli Madonsela's office can effect  remedial action, but has argued there lines are blurred in this case.

"The only point I'm making is that it can be quite nuanced and have a weaker end of the spectrum in which case there may be no issue of judicial review and it might just stand as a report. 

"Again, it's analysed in New Clicks [2005 court application] as Chief Justice Chaskalson [former ConCourt chief justice] deals with that question of when do you cross the line that it's got enough traction -  that somebody can't just shrugged off and say its advice, a report etc.," he said.  

Earlier Advocate Carol Steinberg, representing Corruption Watch, which has joined the matter as a friend to the court, argued that as with this case, the Minister of Police and Parliament were well within their rights to initiate their own reports, but that their findings do not carry the same powers as Madonsela's report.

Steinberg likened this case to the Supreme Court of Appeal's judgement in an SABC matter where the court found Madonsela's findings could not be ignored.

"And there, His lordship, Justice Navsa said they can commission as many reports as they like but there's only one that has legal effect on the SABC and that is the Public Protector's report. The reason for that is she's impartial and constitutionally mandated," she said.    

Judgement has been reserved in the Nkandla matter.

(File photo)