President Jacob Zuma failed to uphold, defend and protect the Constitution of SA, the Constitutional Court has found.

This was the damning, unanimous judgment handed down by Chief Justice Mogoeng Mogoeng in the Economic Freedom Fighters (EFF) case to force Mr Zuma to pay back the money spent on Nkandla security upgrades, on Thursday

Mr Zuma’s failure to implement the public protector’s remedial action contained in her Nkandla report in the absence of a legal challenge to it, was “illegal”.

The court found that the public protector’s findings and remedial action were binding, and in the absence of a legal challenge to it, all Mr Zuma should have done was complied.

Instead, he accepted that he was absolved by Police Minister Nathi Nhleko’s report.

The court’s finding comes after years of intense politicking since Public Protector Thuli Madonsela found that Mr Zuma had “unduly benefited” from the construction at Nkandla and should pay back a portion of the money.

In her report in 2014 titled “Secure in Comfort”, Ms Madonsela said some features included in the R246m security upgrades to Mr Zuma’s Nkandla residence were not security features. These included a cattle kraal, chicken run, visitors’ centre and pool.

But Mr Zuma did not pay back the money; instead, he prevaricated and eventually referred the matter to Mr Nhleko, who conducted his own inquiry to establish whether he owed anything.

Mr Nhleko produced a report that found Mr Zuma did not owe a cent, which was adopted by Parliament after a fractious debate. By then, Parliament had been brought to a standstill on several occasions by the EFF.

The EFF took the matter to the constitutional court. In February the justices of the court heard argument in the matter. Mr Zuma’s counsel, Jeremy Gauntlett SC, surprised all when he abandoned Mr Zuma’s dogged defiance and said the President wanted to bring it to a close.

Mr Gauntlett referred to the finding by the Supreme Court of Appeal that remedial action prescribed by the public protector was binding. “It is not necessary for this court to replough the furrow,” he said.

Parliament was shown up during the hearing for its finding that Mr Zuma did not owe money.

Advocate Lindi Nkosi-Thomas, appearing for the Speaker of the National Assembly, argued: “The public protector cannot dictate to Parliament what to do.”

But when Chief Justice Mogoeng Mogoeng asked: “So it was open to Parliament to effectively render the remedial actions of the public protector void?” she conceded: “Parliament took a wrong position.”

Counsel for the EFF, Wim Trengove SC, asked the court to go ahead and make a finding on the matter despite Mr Gauntlett’s concession that Mr Zuma had to pay back the money.

“As far as the president is concerned, he has violated his duty to assist the public protector. This means the president has violated his duty to uphold his office. He has, for nearly two years, defied the public protector,” Mr Trengove said.

Constitutional law expert Pierre de Vos said of Mr Gauntlett’s concession: “The President obviously threw Parliament under the bus . . . it was impossible, after the President conceded, for the representative of parliament to come with a sound argument.”

“The question that it raises is whether Parliament has ever understood its proper role in our system of separation of powers, which is to hold the executive accountable. Why is it that they acted in a way they did, which seemed, to informed legal minds, not wise?” Mr de Vos asked.

“Parliament, in terms of the constitution, has the discretion to impeach the president if he is in breach of the constitution.” (BusinessDAY, South Africa)

•Photo shows President Zuma.

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