A presidential failure

The damning orders issued yesterday by Gauteng Judge President Dunstan Mlambo were the third blow this week to President Jacob Zuma’s credibility and the latest in a string of high-profile legal losses impugning his ability as a leader.

The setting aside of the appointment of national director of public prosecutions (NDPP) Shaun Abrahams (the second time Zuma’s appointment of an NDPP has been overturned), the stripping of Zuma’s power to appoint another NDPP, and now the double body blow of paying his own litigation costs as well as the court removing his power to appoint a judge in the state capture commission.

“There is the broader pattern of the president’s conduct in litigation of defending what ultimately turns out on the president’s own concession to have been indefensible all along,” Mlambo said on Friday when overturning Abrahams’ appointment.

Nkandla, former head of the Hawks Lieutenant-General Berning Ntlemeza and Menzi Simelane are more millstones around Zuma’s neck, as is the millions of rands taken from the public purse to pay his legal fees.

The aforementioned, and other serious judgments against Zuma, raises the question of what it will take for Parliament to remove him.

The court found that the president had engaged in “clear abuse of judicial process” and had been “grossly remiss” as a litigant, said Tshego Phala, partner in the pro bono practice at Webber Wentzel, and legal representative of Vytjie Mentor, named as a respondent in Zuma’s failed attempt to stymie the outcome of the public protector’s report, State of Capture.

Chief Justice Mogoeng Mogoeng’s Nkandla judgment sounded warning bells when he said: “The president’s failure to comply with the remedial action of the public protector is inconsistent with the constitution. The president failed to defend, uphold and protect the constitution of the land.”

Phala noted the judgments could be used as a reason to table a vote of no confidence in the president. However, this has historically proved to be a no-win situation.

Fact checking organisation Africa Check reported since Zuma came into office, five draft resolutions about motions of no confidence were brought before the National Assembly. All three motions of no confidence failed, one was amended and one was withdrawn. Reflecting on section 89 of the constitution, Phala said the judgment doesn’t expressly say he had contravened the section.

“The National Assembly could, however, through an ad hoc committee, make these findings, while section 102 permits the president to be removed from office through a no-confidence vote. “The National Assembly has a duty in terms of the constitution to hold the president as the executive to account.

Clarity on this issue was sought in the EFF matter brought against the speaker which was brought to the Constitutional Court.

“We are, however, still awaiting the judgment which will give clarity on this duty and the extent of the duty in the wake of an adverse court finding against the president,” Phala said.

The EFF has claimed Baleka Mbete had failed to hold Zuma to account after the Constitutional Court Nkandla judgment.

– amandow@citizen.co.za

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