The decision by the Western Cape High Court to invalidate government and Eskom's controversial nuclear build programme is a political bombshell with far-reaching ramifications.
Energy security has been at the heart of state capture attempts recently, with the public protector last year placing the contract between the controversial Gupta family and Eskom for the provision of coal at the centre of her state capture investigation and Pravin Gordhan's axing as finance minister allegedly linked to his opposition of the nuclear deal.
Taxpayers are the undoubted victors after Judge J. Bozalek's judgment on Wednesday. By the same token President Jacob Zuma – who chairs the cabinet committee driving the project – is a clear loser.
1. The Zuma-Putin bromance
Zuma has gone out of his way to snuggle up to Vladimir Putin, the Russian strongman and leader since 1999. He has made sure Pretoria positions itself close to Moscow and has even visited Russia to receive medical treatment. It has however been our almost all-consuming courting of Russian nuclear company Rosatom which has defied belief. The company – criticised in the industry because of clunky and expensive technology – was installed as favourite by Zuma and Tina Joemat-Petterson, the former energy minister. Why? We don't know. What we do know though is that Zuma and Putin is close, Zuma has visited Russia a number of times and Rosatom was the preferred supplier. We also know Gordhan and National Treasury was opposed to the programme, but that government tried to push it through. The High Court has now said "nyet" to the deal. Which might mean "dosvidanyia" to the bromance.
2. The courts
Sitting in his cream-coloured office in the west wing of the Union Buildings Zuma and his kitchen cabinet probably didn't have a lot of hope when they saw Bozalek start to deliver the court's judgment. Most applications brought before the country's courts recently where the executive were the respondents ended in a bloodied nose for Zuma and his ministers. And it has showed up to what degree his government has ignored the Constitution, the law and principles of good governance. Recall the High Court in Pretoria's angry judgment in the Omar al-Bashir case, or Chief Justice Mogoeng Mogoeng's derision of Zuma and Parliament in the Nkandla matter and the recent savaging of Bathabile Dlamini in the social grants application. Add the public protector's report into state capture into the mix and a picture emerges of a government and ruling elite that considers itself above the law, hell-bent on subverting democracy and governance and determined to use access to money and power for its own ends. The courts don't take kindly to that sort of thing – and might be the next target for capture. Look at what's happened at Treasury.
3. Civil society
Earthlife Africa and the Southern African Faith Communities Environment Institute (Safcei), two small non-governmental organisations founded to mobilise society around environmental issues, took on the Zuma-Putin axis and challenged the department of energy and Eskom behemoths by taking the nuclear programme on judicial review. They join other civil society organisations such as Freedom Under Law, the Helen Suzman Foundation and the Council for the Advancement of the South African Constitution (Casac) that have successfully bloodied the executive's nose in the courts. This has led to NGO's increasingly becoming political targets, with senior government and African National Congress leaders questioning these organisations' funding, saying they seem to be part of a plot by Western imperialists to subvert government. With civil society's latest success in courts it will undoubtedly be cast as enemy agents by those who stood to benefit the most from the nuclear deal. But it probably won't deter them.
4. The executive
Zuma's government just doesn't seem to care. When the High Court said it is under legal obligation to arrest Bashir, it nodded but ushered him to his plane at Waterkloof Air Force Base, earning the ire of a full bench in Pretoria. When the public protector found that Zuma has to repay the state for his Nkandla bonus, the highest court in the land was forced to intervene. And when Zuma's minister of social development just cocked a snook at the Constitutional Court and millions of social grant recipients, the courts again had to remind them of their legal obligations. This is besides the numerous applications brought to challenge the actions and appointments of Zuma henchmen like Shaun Abrahams (national director of public prosecutions) and Berning Ntlemeza (commander of the Hawks). Zuma and his ministers believe they can act with impunity – the courts have shown they can't. They need to realise that.
5. The Speaker
If the executive arm of government has been getting it from all sides recently – but so has the legislative arm. Parliament – and by extension Speaker Baleka Mbete, who leads the institution – has been as complicit in trying to muscle through the nuclear deal as government has been. The Constitutional Court was scathing in its Nkandla judgment, saying Parliament neglected its duty to hold the executive to account by ensuring that the recommendations of the public protector are implemented. From the nuclear judgment it is clear it has failed again, this time by failing to ensure there is proper oversight, participation and transparency with a deal of this magnitude. But then, Mbete's never exactly let on that she's impartial and committed to the institution, has she?