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Concourt erred on Nkandla ruling, it should have simply thrown out the case – Paul Ngobeni

Paul NgobeniWriting a long judgment condemning both President Zuma and the National Assembly in a moot case such as Nkandla portrays bias, writes Paul Ngobeni.

Before the Constitutional Court (Concourt) Nkandla judgment President Jacob Zuma shared with many legal scholars, judges, practising attorneys and civil society leaders the view that the public protector’s findings were not legally binding.

When the court finally spoke on Zuma, the same individuals became the new apostles of constitutionalism calling for Zuma’s head.

Zuma apologised unreservedly for his actions based on erroneous legal advice. In contrast, his learned critics have deceptively hidden their original erroneous position and have now taken to the airwaves to falsely claim vindication and to call for his removal.

They are aided and abetted in this endeavour by the church leaders! Zuma can be removed based on gut-level reaction and political machinations within his party but it is just plainly wrong to hijack a court judgment in that enterprise.

Let us set the record straight.

In February 2015, the Law Society of South Africa (LSSA), which represents all attorneys and speaks nationally on behalf of the attorneys’ profession, convened a colloquium specifically to debate whether the public protector’s findings were legally binding.

On the panel were Deputy Minister of Justice and Constitutional Development John Jeffrey, Public Protector Thuli Madonsela, retired Concourt justice Zac Yacoob, deputy head of the School of Law at the University of the Witwatersrand Professor Mtende Mhango and the executive secretary of the Council for the Advancement of the South African Constitution, Lawson Naidoo.

With the exception of Madonsela, all the speakers agreed that the remedial measures of the public protector were “not legally binding” on anyone.

Justice Yacoob, the newly converted Zuma nemesis, observed that nowhere in the world are the ombudsman’s powers binding.

The LSSA finalised its position paper on the powers and functions of the public protector’s findings in July 2015. It made pellucid its “official position” that it considered the findings of the public protector to be issues of fact (that is, whether or not there was maladministration) and that such are not binding.

It emphatically stated that “recommendations by the public protector are steps suggested to remedy the maladministration and can never be binding.”

The position of these legal scholars and jurists was consistent with those of Judge Scheepers who similarly ruled that the “findings of the public protector are not binding and enforceable”.

It is a serious indictment on the legal profession, including thousands of ANC lawyers and civil society activists who are members of the LSSA that they maintained a stony silence when their professional body adopted an official position which has now been denounced by the Concourt.

Without disclosing their earlier concurrence with Zuma’s legal position, they have now joined the band-wagon of those claiming that Zuma is guilty of some impeachable or gross misconduct.

Legal scholars cannot, with any integrity, accept these self-serving, opportunistic and hypocritical intellectual gymnastics and gyrations. Undeniably, there was legal uncertainty at that time Zuma acted – it was not gross misconduct for the president to adopt the position he adopted before the SCA and later the Concourt clarified and changed the legal landscape.

Why did Yacoob as a recall-eligible judge sworn to uphold the law fail to advise the National Assembly and the president that they were skating on thin ice legally?

On what basis can society credibly argue that Zuma should have had the prescience to know the Concourt’s likely verdict when there were judges, scholars and activists wallowing in the same cesspool of ignorance?

Equally guilty are ANC legal heavyweights who are belatedly trying to extricate themselves from the morass by scoring cheap political points.Surely, the oath to uphold, defend and advance the constitution applies invariably to judges, attorneys and advocates. A belated single-issue campaign targeting Zuma solely on the basis of a court judgment adverse to our own legal convictions betrays political and moral bankruptcy of the worst kind.

Zuma’s enemies must not hide behind the Concourt judgment; they must have the intellectual integrity to admit they are using the judgment to whip up anti-Zuma and anti-ANC hysteria and nothing else.

Substantively, the Concourt judgment teaches us all a great lesson about our diversity of opinions and conflict resolution in our democracy.

It makes it pellucid that in the absence of a healthy dose of respect for the public protector and practical assistance by the powers that be, she would be frustrated in her duties to the detriment of our democracy.

members of the public would be reluctant to utilise her services if they perceived her to be a toothless bureaucrat whose remedial actions can be ignored willy-nilly.

That notwithstanding, there are multitudes of reasons why the Concourt’s decision must be viewed as a monumental failure of legal reasoning, miscarriage of justice and a disappointment for constitutional scholars.

The legal doctrine confronting the Concourt – but ignored by the court in the Nkandla case – is known as “mootness”. A case is a moot one if it seeks to get a judgment on a pretended controversy, when in reality there is none, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.

Once Zuma conceded the EFF and DA applicants were entitled to the relief they sought, the Concourt should, notwithstanding its wider discretion, have dismissed the Nkandla case. Certainly, gratuitous writing of a long judgment condemning both the president and the National Assembly in a moot case portrays bias or political grand-standing.

The judgment fails to provide guidance to government departments and Parliament on resolving disputes between the public protector and state officials who may have plenary authority over certain matters. Succinctly, the executive and National Assembly were faced with conflicting constitutional duties in Sections 182(1)(b) and 198 respectively.

The strenuous insistence that they could determine for themselves what items were security-related proceeds from their views of their plenary powers under Section 198.

The judgment is remarkably long on the constitutional basis for the powers of the public protector but very short on the constitutional powers of the executive and Parliament when it comes to matters of national security.

It omits entirely a mention of Section198(d) of the Constitution which unambiguously states that “national security is subject to the authority of Parliament and the national executive.”

Inexplicably, the Concourt discusses the specific constitutional obligation imposed on the president and National Assembly by section 182(1)(b) and (c) while ignoring the equally important constitutional duty to ensure national security under Section 198.

The Concourt stated that once Madonsela reported to the National Assembly its constitutional “obligation to take appropriate remedial action” can only mean compliance.

It concludes that when that report was received by the National Assembly, it effectively operationalised the House’s obligations in terms of sections 42(3) and 55(2) of the Constitution.

The Concourt paid scant attention to Section 198 under which Parliament has a superior constitutionally-derived and exclusive authority to determine for itself what are security features at the residence of the president.

Propagandists are free to simply view this approach as motivated by an unlawful desire to frustrate the public protector.

Throughout the world courts wroutinely rule against members of the executive and other branches of government but such rulings are not considered automatic impeachable offences mandating removal of public officials.

The moral of the story is that court judgments are limited to the cases being adjudicated upon and their implications must accordingly never be hijacked for political ends.

* Ngobeni is a legal expert.

The Sunday Independent

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22 Comments

  1. You have said mouthful our judiciary is failing South Africa. Some element within the judiciary have mentioned that they are going to venture into a political space this are actions biased not fair not impartial not independant fueling divisions hatred political instability that might to civil war because of short sighted power hungry greedy elements and destructive opposer of our democracy

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  2. Adrien McGuire

     /  April 10, 2016

    This judgement was a watershed moment in South Africa’s history. It has , once and for all, given the public some teeth in between elections . Crooked politicians cannot hide behind section this or section that. The upgrade to Nkandla was a flawed process from the start. Whether it was the Public Works department or the architect is a moot point , one cannot absolve Zuma from his oversight role . No sane man walks around a massive building site and doesn’t stop to ask where the money is coming from . Worse still was Zuma’s attitude when discussing the R246m . To him it was a joke that money had been diverted from projects for the poor to his residence .

    All his actions were of a guilty man and , nothing worse than trying to invoke the National Key Points act to attempt to avoid scrutiny. Do you not recall that Zuma said that he had a bond to cover his building costs , do you also not recall that it was proven that he did not have a bond ? That is a lie in my book ?

    You can have as many law degrees as you want but at some stage you have to scrutinize the actions of the guilty party and how he tried to evade accountability for what happened under his nose .This in itself tells the story . Also the judgement in the Cape High Court came a long time into the process, so it wasn’t there from the beginning . Study the timeline of this abysmal process and it tells a different story to what you are trying to portray.

    As a “legal expert” you would know that one cannot simply plead guilty the day before your trial and expect to have your wrist slapped with no accountability or censure. Further , I have never seen a defendant ever get off for having followed different legal advice. Zuma’s legal team was scrabbling around looking for loopholes to try and wriggle through. It was never sound advice from the start, because it was a reaction to scrutiny by the Public Protector.

    Mr Ngobeni, this judgement was handed down by a full bench of the Concourt and 30-40 million South Africans , so you can take section this and section that and put them in the dustbin. The people have spoken !

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  3. Lindela

     /  April 10, 2016

    The doctrine of mootness? Does this so called mootness prevent an applicant from seeking a declaratory order where constitutional rights are concerned? This is tragic coming from an expert. Since when do lawyers quote LSSA in arguments, worse still the LSSA that the “expert” is referring to was not admitted as amici curiae. How convenient to be so sarcastic on failures of Yacoob and the collective voices of sons and daughters of the soil to stand by their wrong legal opinion without the legal expert providing us with some authoritative material on his new found stare decisis called LSSA. Please baba, make sure to research the law before you spit vitriol because this is so pathetic.

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  4. fresh

     /  April 10, 2016

    Confusing Constitutional and administrative law with Criminal law. E.g. In criminal we use ‘rejected’ and in civil ‘ did not accept’. Once you get facts from a client, determine which law applies. How can u be guilty in constitutional law? There’s nothing political but interpretation legislation. Our expert is confusing applicable laws.

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  5. In the pursuit of defending corruption and abuses of power, lets not hide behind legal semantics. This man stole money from our taxes to build a mansion. The PP said it did not belong to him. He did not dispute that. Non of the courts said the PP lied. So that money was not his. Now what stopped him from just paying the money back? He then gives the country the run around and appoints a parallel committee that is beholden to him for its members’ salaries, to investigate the same issues as the PP. They then deliver the verdict they were expected by him and his mates to deliver, so they can keep their jobs. Why waste our money like that with something that is actually not procedural? They claim a swimming pool is a fire pool, what rubbish. All of this is now denounced by the concourt. Now binding or not binding was actually irrelevant. If this was Mandela, do you think he would done all this drama? Whether the PPs finding was binding or not, it did not change the FACT that Zuma used tax money inappropriately, and should therefore have paid it back without a fuss. He didn’t and wasted more money, and got his comrades to make a mockery of the PP and the SA public. That is arrogance and whatever his supporters want to say to defend him, it won’t help. His apology is also hollow if he does not do the honourable thing and resign, because he’s lost the respect of a wide section of decent people.

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  6. Aletta Mohale

     /  April 11, 2016

    Herewith are the legal credential of the so called “Legal Expert” claiming ConCourt erred on Nkandla ruling: “On 27 September 2005, the Connecticut Office of the Chief Disciplinary Counsel filed an application for the interim suspension of Paul Ngobeni, alleging that he “pose[d] a substantial threat of irreparable harm to his clients or to prospective clients.” On 19 December 2005, after he failed to appear for a hearing on this application, a judge in the Superior Court for the Hartford Judicial District in Connecticut ordered that he be placed on interim suspension. On 20 January 2006, bar counsel filed a petition in Massachusetts for reciprocal discipline based on the interim suspension order entered in Connecticut. On 16 March 2006, the court issued an order of immediate temporary suspension, after Ngobeni had failed to respond. In a presentment filed in the Connecticut Superior Court on 25 September 2006, disciplinary counsel in Connecticut alleged seventeen counts of misconduct involving sixteen separate clients. The presentment, as amended, included allegations that the respondent took fees without providing services, was incompetent, lacked diligence, failed to communicate with clients, engaged in misrepresentation and deceit, failed to explain an overdraft in his clients’ funds account, failed to safeguard clients’ funds, and failed to respond to requests for information from the Connecticut bar discipline authorities.[11] On 14 August 2007, Ngobeni returned to South Africa, his country of origin. On 17 October 2007, a judge in the Connecticut Superior Court held a hearing on the presentment, which Ngobeni did not attend, and on that day, the judge entered an order disbarring Ngobeni for a period of thirteen years. The order conditioned reinstatement on Ngobeni’s presenting a practice plan acceptable to the court, on his not practicing as a solo practitioner, on his maintaining malpractice insurance, and on his paying restitution to affected clients. On 29 November 2007, Ngobeni and Connecticut disciplinary counsel attended a hearing in the Connecticut Superior Court to consider Ngobeni’s resignation from the Connecticut bar. Without abandoning his previously filed jurisdictional challenge to the disbarment proceeding, Paul Ngobeni acknowledged that the court had jurisdiction to open that proceeding to consider the submission of his resignation. He further acknowledged that he was freely and voluntarily submitting his resignation, that he understood that he was entitled to be represented by counsel but chose not to be, and that he was giving up his right to reapply for admission to the Connecticut bar at any time in the future. At the hearing, Paul Ngobeni stated that he was resigning because he intended never to practice law in the United States again, that he intended to return to South Africa the following day, and that he wished to avoid returning to the United States to pursue “lengthy appeals or prolonged proceedings” related to his disbarment. He also stated that “[his] resignation does not in any way constitute any admission of liability of wrongdoing or misconduct on [his] part” and that he was conceding nothing with respect to his jurisdictional challenges to his disbarment proceedings. The assistant disciplinary counsel made clear that she was not “conceding in any way any of the issues that have been raised by [Ngobeni] in opposition to the presentment” and was prepared to prosecute the charges of misconduct set forth in the presentment if the respondent did not resign.”

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  7. DTabne

     /  April 11, 2016

    Does Paul Ngobeni have a view that when a president fails to Respect, Uphold and Protect the Constitution, (which he failed to mention again in this mouthful of ‘personal opinion’) should still be allowed to hold office, despite failing in his duties and Oath? Does Mr Ngobeni fail to understand how far Zuma and National assembly went to dismiss the public protector????

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  8. Legal expert ?? Prevaricator – who knows!

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  9. James

     /  April 11, 2016

    Is this an appeal to the Concourt judgement? It boggles mind what the learned friend wants to achieve here.

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  10. so now the concourt are all da members or other party members ? no mister now it all it is you and a few staunch mr zuma saporters that is of your baised and i dont include the anc because this whole ugly corrupted story flows from a few and not from the anc as a party and this my feeling as a da member

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  11. Magaelane Koma

     /  April 11, 2016

    Well done ntate Ngobeni. You just reminded me the Pistorious case. You chose to exercise your constitutional right to your opinion and expression thereof. While you may consider the justice as seen by the mob, you did not run away from your practice – i.e. seeing things through the eyes of law with your own spectacles….

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    • Belvidere 17

       /  April 15, 2016

      Hey magelane, did you COMPLETELY IGNORE the “expose” of your favoured Ngobeni? – and his failure/negligence -to apply the “Principles of Law” in the USA as chronicled above by Aletta Mohale ??? For Heavens sake man, this matter has NOTHING to do with Black or White – BUT EVERYTHING to do with “every South African regardless of Colour” but entitled to EQUALITY under the Constitution? Dont you also want to have an EQUAL CHANCE to be able to have a good job with a good salary and GOOD FUTURE PROSPECTS?? – irrespective of Colour or upbringing as the Constitution calls for????

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  12. cde oupa mabe

     /  April 11, 2016

    Attention : Aletta Mohale
    Please jst try to be objective not subjective to the matter raised by mr Ngobeni. And in future u must desist yourself from character assassination of ppl u dnt agree with , jst discusd the matter without any hidden agenda .
    I thank u

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    • joe

       /  April 12, 2016

      Ms Mohale did not commit character assasination, mr Ngobeni rather committed suicide by pretending to be a legal expert. in fact he is a fraud so nothing that he says can be considered with any weight

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  13. MJ

     /  April 11, 2016

    This is a problem about our people, they never finish a debate without being personal. Mr. Ngobeni was very objective and I agree with him. This has nothing to do with defending Zuma but has everything to do with justice and fairness.

    Following this ConCourt decision I have completely lost trust in our justice system. The Court wanted so much to nail Zuma that it even made sure it administer the compliance of the Public Protector’s finding compliance. It even forget about Zuma’s constitutional right to review the finding..

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    • Pot X

       /  April 12, 2016

      If you used your objective reasoning you would have realised that the person you are trying so hard to protect and pay allegiance to had accepted the judgement and his legal team conceded before a judgement was even passed that they erred. To come on social media a try a play social media legal expert is not going to help advance your career or political ambitions.

      Liked by 1 person

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    • Benoit Le Roy

       /  April 12, 2016

      Are you being facetious or are you serious?

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  14. Tumelo

     /  April 12, 2016

    If our learned Mr Ngobeni can then explain where is it written anywhere that if a criminal apologises then the court must dismiss the case. Zuma ‘s apology doesn’t change the fact that he’s a corrupt criminal that doesn’t respect the country’s constitution like all criminals.he claims they discussed the legality of the PP binding effect and agreed that her remedial findings can only be recommendations nothing more comparing her findings to that of the ombudsman but forgets to say that constitution changed the powers of the PP to be equal to that of the auditor general. If her findings can be recommendations without binding then she can be ignored by all criminals like Hlaudi and the SABC tried to do. Even Zuma frustrated her until the EFF case when he tried to settle. Zuma’s SC agreed the findings were binding long before the Cocourt case when they tried to settle the case out of court with the EFF. Zuma’s praise singers must just accept the EFF kicked their balls unexpectedly. Let it go now

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  15. How much were Ngobeni paid, by whom, to write such a load of claptrap? Legal expert, you describe him as? Good Lord, may I never need such…

    Liked by 1 person

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  16. Benoit Le Roy

     /  April 12, 2016

    So why was the PP’s office established? What a load of ill conceived rubbish to protect what interests the question begs?

    Liked by 1 person

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  17. KM

     /  April 12, 2016

    Foolishness!

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