President Jacob Zuma got the worst thrashing of his disgraceful presidency on Wednesday. Not only did he lose on every ground on which he had asked that the remedial action of the public protector’s report be set aside, but he was rebuked for recklessness and slapped with a personal costs order because his application was so obviously "a nonstarter".
His conflict of interest on the question of an inquiry into state capture was glaring, said the high court. As a friend of the Gupta family and the father of Duduzane, their business partner, he could not reasonably expect that the Constitution would allow him the unfettered power to appoint a commission of inquiry into their activities or into his own collusion with them as president.
While he must appoint a commission within 30 days, he cannot be trusted to exercise the power to appoint the judge who will preside over it. Instead, the chief justice will do the choosing.
The party has torn itself apart in defending Zuma, performing contortions over Nkandla and its firepool and turning a blind eye to the prima facie evidence of his corruption
That this followed so soon after the same court days before stripped him of another presidential power — to appoint the national director of public prosecutions because of his conflict of interest — made the slapdown even more stinging.
Judge Dunstan Mlambo was the first officer of the court to place a roadblock in the way of Zuma’s tendency to delay and litigate using state resources. His costs order, which will include those of the office of the public protector, should be a deterrent. If he appeals, he could lose again and the costs could double.
As was the case last week, the judgment was deeply damning of Zuma’s behaviour as president.
It notes that the allegations he faces are extremely serious. These included that he acted not in the public interest, but in the financial interests of his friends the Guptas. He ignored evidence of corruption put into the public domain — for instance, the offer of a cabinet post to Mcebisi Jonas by the Guptas — when he should have investigated it — an offence under the Prevention and Combating of Corrupt Activities Act.
While Zuma lost big, the bigger loser is the ANC.
The party has torn itself apart in defending Zuma, performing contortions over Nkandla and its firepool and turning a blind eye to the prima facie evidence of his corruption. Ironically, it has always been "in the interests of unity" that the ANC has refrained from acting against Zuma.
Now, as the organisation goes to its national conference on Saturday, it is bitterly divided.
While the ANC tends to ignore public opinion in its choice of leadership, the effect of what the courts have done in the past week is so immense that it cannot but have an effect on the organisation’s gathering at Nasrec. In such a close race, it could matter if Zuma’s abuses even narrowly damaged Nkosazana Dlamini-Zuma’s chances.
There is also fury against the judiciary from the quarters who believe it has taken a side in the ANC’s political battle.
The pro-Zuma Progressive Professionals Forum has said it will request the impeachment of the three judges involved in last week’s judgment; and Social Development Minister Bathabile Dlamini said at the weekend that unless the judges restrained their interference in the executive, it would be them in the end whose hands "would be dripping with blood".
The victory, while significant for the political opposition, was, like the Constitutional Court judgment on Nkandla, biggest of all for SA. As former public protector Thuli Madonsela said in her reaction to the judgment: "Accountability has been restored."
Zuma’s power is not untrammelled; it must at all times be exercised within the constraints of the Constitution.
To those who were taken aback at the extent to which the judiciary has come to dominate our politics, a tweet by former deputy chief justice Dikgang Moseneke was instructive.
Not one to tweet much at all, Moseneke offered an incisive quotation of Marcus Cicero: "We are bound by the law, so that we may be free."