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Nkandla: The plot thickens

Questions have been raised over whether Thuli Madonsela's findings are recommendations or legal instructions.

The Public Protector Thuli Madonsela releases the findings about Nkandla homestead during a press conference in Pretoria on 19 March 2014. Picture: Sebabatso Mosamo/EWN.

JOHANNESBURG - The obligation for President Jacob Zuma to reply directly to the Public Protector's Nkandla report has come under scrutiny after Thuli Madonsela sent him a seven-page letter, requesting his response within 14 days.

The president was ushered out of the National Assembly last week amid chants of 'pay back the money' by the Economic Freedom Fighters (EFF), whose leader Julius Malema demanded that Zuma commit to a date.

Madonsela recommended Zuma repay the money used for non-security upgrades to his private homestead.

But now, questions have been raised about whether her findings are recommendations or legal instructions.

In a seven-page letter to the president, Madonsela says his refusal to adhere to her recommendations could breed a culture of impunity in the state.

After a failed attempt by Malema to get Zuma to commit to when he will make the payment, the Public Protector has now given him 14 days to respond.

Constitutional law expert Paul Hoffman says although Madonsela has only made a recommendation, Zuma is obliged to comply.

"It's just couched in polite terms in its initial constellation, but taking appropriate immediate action is asking the same question as Julius Malema."

Hoffman says, according to the Constitution, cabinet cannot overrule Madonsela's findings and they can only be set aside by a court of law.

Meanwhile, it appears that Madonsela may have very few ways of forcing Zuma to comply with her recommendations.

Legal experts say that under the Constitution and the Public Protector's Act, Madonsela may not have the legal power to force the president to give her a response that is different to the one he has already given.

Instead, all she can do is take the matter to Parliament and tell Members of Parliament (MPs) that in her view Zuma is behaving as if he's above the law.

However, there seems to be very little evidence to suggest the Nkandla issue is damaging Zuma's standing within the African National Congress (ANC) which means its Parliamentary majority is likely to protect him from any strong action.

But it is possible for another party to take Zuma to court on public interest grounds and claim he has broken the law.