THE AD-HOC COMMITTEE ON THE REPORT OF THE MINISTER OF POLICE TO PARLIAMENT ON THE SECURITY UPGRADES AT THE NKANDLA PRIVATE RESIDENCE OF THE PRESIDENT

A.  STRUCTURE OF THE REPORT

1. This report is in two parts. The first part addresses itself to the legality and constitutionality of the process that has culminated in the appointment of the Ad Hoc Committee. The second part, to the extent that it is relevant, addresses the content of the Report that is ostensibly the subject matter of the Ad Hoc Committee’s enquiry, with added observations and a recommendation.

B. PART I

2. In the course of March 2014, the Public Protector delivered a report entitled Secure in Comfort: Report on an investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the private residence of President Jacob Zuma at Nkandla in the KwaZulu-Natal province (Report No 25 of 2013/14). This report made certain observations, findings and recommendations. It also ordered certain remedial action to occur. The most significant remedial action for current purposes are contained in section 11.1 of the Report, as follows:

11. REMEDIAL ACTION

Remedial action to be taken in terms of section 182(1)(c) of the constitution is the following:

11.1 The President is to:

11.1.1 Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool.

11.1.2 Pay a reasonable percentage of the costs as determined with the assistance of National Treasury, also considering the DPW apportionment document.

11.1.3 Reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused.

11.1.4 Report to the National Assembly on his comments and actions on this report within 14 days.

(our emphasis)

3. In her findings, the Public Protector established that there were many features of the upgrades that did not constitute legitimate security upgrades and/or that the extent of the security upgrades were far more elaborate (and expensive) than those recommended by the Security Evaluation Report of the South African Police Service (SAPS). These variations formed part of a document prepared by the Department of Public Works (DPW) that indicated the apportionment of the estimated costs between the DPW and the President (see sections 6.72 and 7.27 of the Report). The words “which include”, in section 11.1.1 of the Report, clearly indicates that there were other features of the upgrades, apart from the Visitors’ Centre, the amphitheatre, the cattle kraal, chicken run and the swimming pool, for which the President was responsible. Also, according to the Public Protector, even the President himself indicated that he knew that he was responsible for some of the costs of relocating the cattle kraal (see section 6.63.2). The Public Protector, in section 9.2.18 of her Report, states –

The excessive nature in which the Nkandla Project was implemented went a long way to beautify the President’s private residence and to add comfort to its infrastructure, which was not the objective of security measures that had to be implemented for his protection.

4. In any event, the following steps were taken by the President in reaction to the remedial action ordered by the Public Protector. He addressed a letter to the Speaker of the National Assembly on 2 April 2014 (which was within the 14 days specified by the Public Protector). In this letter, the President referred to the investigations that had been undertaken by the “multi-disciplinary Task Team” and the Public Protector. He observed that, despite the fact that both investigations had “enquired into substantively the same subject matter”, “there are stark differences both in respect of the findings as well as the remedial action proposed (sic) in the two reports.” He then stated that during December 2013 he had issued a proclamation in “the course of December 2013” instructing the Special Investigating Unit (SIU) “to enquire into and investigate the security upgrades at Nkandla.” He concluded by stating that he was “intent on giving full and proper consideration to all these matters and upon receipt of the SIU report will provide Parliament with a further final report on the decisive executive interventions which I consider would be appropriate.”

5. The Final Report of the SIU is dated 20 August 2014. Even before this, the President submitted a Report to the Speaker of the National Assembly regarding the security upgrades at the Nkandla Private Residence of His Excellency President Jacob G Zuma, dated 14 August 2014.  This is a 20 page report, much of which is irrelevant for current purposes. However, at page 14 and following, the President deals with the remedial action “Proposed” (sic) by the Public Protector (para 51). He then seeks to evaluate the report of the SIU, and to compare and contrast the two reports. The President’s analysis concludes –

61. A proper appraisal of the commissioning of the security upgrades and expenditure at Nkandla must of necessity include an examination of the conduct of the Executive as measured against the Constitution and the prescripts set out in paragraph 6 above.

62. This examination and intervention has not awaited the compilation of this report and, as government, measures have already been adopted to ensure compliance with the legislative framework and the review and determination of best practices.

63. What appears apparent (sic) is that whilst a legislative framework exists, it was either deficient in certain respects, or wholly ignored or miss-applied (sic).

The President then states –

64. I deem the following to be appropriate:

63.1(sic) the Minister of Police as the implementing Minister under the National Key Points Act, to expedite the review of this legislation which is currently under way and to report to Cabinet periodically of the progress in this regard;

63.2(sic) the Minister of Police as the designated Minister under the National Key Points Act, to report to Cabinet on a determination to whether the President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports;

63.3(sic)….63.5 (sic)…………

65. I am satisfied with the progress reported by the SIU and that the interventions both   proposed and actualized in terms of our civil and criminal law, as well as departmental procedures, speak to the seriousness of their findings and in accordance with the terms of reference set out in the proclamation.

66. I am equally satisfied that adequate steps have been taken by parliament and the executive in reviewing the ethical codes applicable to members of cabinet and of parliament.

6.1 In our view, the President’s report, and particularly what appears in it as paragraph 63.2 was irrational, unconstitutional and unlawful. The Public Protector is a Chapter Nine institution, and the Constitution, in section 181(3), requires that –

Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.

6.2 The President is an organ of state and is bound by the Constitution (and indeed, his oath of office) to at very least assist the Public Protector. As is evident from Part G of the Public Protector’s report (pp 269 to 283), the President’s assistance to the Public Protector was grudging and incomplete.

6.3 More problematically, section 182(1) of the Constitution reads –

The Public Protector has the power, as regulated by national legislation –

(a)….

(b)….

(c) to take appropriate remedial action.

6.4 The force and effect of remedial action ordered by the Public Protector has been the subject of litigation in the case of Democratic Alliance v the SABC and others (case number 12497/2014) before the Western Cape High Court. Although leave has been granted to the Supreme Court of Appeal, the current law exists as stated by Schippers J: “a finding of the Public Protector is not binding on persons and organs of state”.  This was, for example, the convenient conclusion to which the Ad Hoc Committee’s Report dated 11 November 2014 came, at paragraph 3.3.

6.5 However that was not all the judgment stated. In paragraph 59 and following, the Judge states –

[59] However, the fact that the findings of and remedial action taken by the Public Protector are not binding decisions does not mean that these findings and remedial actions are mere recommendations, which an organ of state may accept or reject.

[60] The respondents accept – as they must – that an organ of state cannot ignore the findings and remedial action of the Public Protector. That much is clear from s 181(3) of the Constitution which provides that other organs of state, through legislative and other measures, must assist and protect the Chapter 9 institutions, to ensure their independence, impartiality, dignity and effectiveness.

6.6 Schippers J goes on in paragraph 63 as follows:

[63] The respondents, in effect, have rejected the Public Protector’s findings and remedial action, by not convening a disciplinary enquiry and appointing Motsoeneng permanently as COO. Disregarding findings and remedial action subverts the Public Protector’s powers under s 182 of the Constitution. The powers of the Public Protector to investigate any conduct in the public administration and to take appropriate remedial action, strengthens democracy by providing both the individual and the wider society with the assurance that the various institutions of state can be called to account, should they fail to maintain expected standards in carrying out their functions or in their dealings with the public. In turn, the bond of trust between the citizen and the state is strengthened by promoting transparency in government and other state institutions.

[64] The critical role which the Public Protector fulfils cannot be over-emphasised. As was said in Mail & Guardian:

“The office of the Public Protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.”

6.7 Schippers J then deals with the powers of the Public Protector –

66] It seems to me that before rejecting the findings or remedial action of the Public Protector, the relevant organ of state must have cogent reasons for doing so, that is for reasons other than merely a preference for its own view….

6.8  Justice Schippers then concludes as follows –

[72] thus in a case where the Public Protector makes findings and takes remedial action, the consequential steps to be taken by the relevant organ of state, in my view, are these:

(a) The organ of state must properly consider the findings and remedial action. As the findings are not binding and enforceable, the organ of state must decide whether or not the findings should be accepted and the remedial action implemented. That is the purpose of the power.

(b) The process by which that decision is made and the decision itself, must be rational, having regard to the underlying purpose of the Public Protector – to ensure that government officials carry out their tasks effectively, fairly and without corruption or prejudice.

(c) In a case where a dispute arises because the organ of state decides not to accept the findings or implement the remedial action, it obviously has to engage the Public Protector. Contrary to the contention by counsel for the first to third respondents, such engagement, in my view, does not take place pursuant to the provisions of s 41 of the Constitution – the Public Protector is not an organ of state within a sphere of government as contemplated in s 41(1). (It is thus hardly surprising that the Intergovernmental Framework Act 13 of 2005 does not apply to the Public Protector.)

(d) Ultimately the relevant organ of state may apply for judicial review of the Public Protector’s investigation and report.

[73] It goes without saying that a decision by an organ of state rejecting the findings and remedial action of the Public Protector is itself, capable of judicial review on conventional public law grounds.

[74] For these reasons, I have come to the conclusion that the findings of the Public Protector are not binding and enforceable. However, when an organ of state rejects those findings or the remedial action, that decision itself must not be irrational.

6.9 The question that needs to be answered is whether the President, in dealing with the findings and remedial action ordered by the Public Protector, conformed with the exposition of the law in the SABC case. Our contention is that he did not, for the following reasons:

6.9.1 He did not conform with the remedial action of the Public Protector. He did not, and has not taken steps to determine the reasonable costs of those measures that do not relate to security, with the assistance of the SAPS and the National Treasury;

6.9.2 He has not expressly stated that he does not accept the Public Protector’s findings. Instead he has substituted a different remedy – that of requiring the Minister of Police to determine not only his portion of the costs, but whether he is liable at all. In other words, the President has substituted another remedial action for that ordered by the Public Protector;

6.9.3 In neither his report to Parliament nor his response to the Public Protector, has the President advanced rational reasons why he does not agree with the findings made up, and remedial action ordered, by the Public Protector; and

6.9.4 He has not engaged meaningfully with the Public Protector. His interaction with her, after she sent him her preliminary report, appears to be confined to a single exchange of letters on 21 August 2014, from the Public Protector, and 11 September 2014, by the President. In the latter, the President “respectfully” disagreed with the Public Protector’s contention that remedial action could only be set aside by a review application and reiterated that “I consider the Minister of Police to be the appropriate functionary for the purpose (of determining liability for payments) and reasons tendered in my report to the National Assembly.”; and

6.9.5 The President has not taken the findings and remedial action on review.

6.10 On 19 August 2014, the National Assembly resolved to establish an Ad Hoc Committee to consider the report of the President and to make recommendations where necessary. After some discussion, the mandate of the Committee was expressly extended to the Reports of the Public Protector, the Joint Standing Committee on Intelligence, the Inter-Ministerial Task Team, and the Special Investigating Unit.

6.11 The Opposition Parties participated in this Ad Hoc Committee with the purpose of trying to ensure that effect was given to the remedial action ordered by the Public Protector, and if not, that the President be required to give evidence as to why he had chosen to substitute the remedial action with another course of action. When it became clear that the majority party was not amenable to such a course of action, the opposition parties discontinued their participation in the Committee.

7.1 There is a further fatal flaw in this process. In his Report to Parliament dated 14 August 2014, at paragraph 63.2 (sic), the President deemed it “appropriate” to direct –

The Minister of Police as the designated Minister under the National Key Points Act, to report to Cabinet on a determination to whether the President is liable for any contribution in respect of the security upgrades having regard to the legislation, past practices, culture and findings contained in the respective reports.

7.2 The Minister of Police is appointed to the Cabinet by the President, and serves on the Cabinet at the President’s pleasure. This inevitably caused a conflict of interest, and made it impossible for the Minister of Police to give an honest and dispassionate assessment. In fact, by assuming this responsibility, the Minister of Police potentially violated section 96(2)(b) of the Constitution, which reads as follows –

Members of the Cabinet and Deputy Ministers may not –

(a)…….

(b) act in a way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; or

(c)…….

7.3 It is contended that, as a result of his conflicted position, the Minister inevitably produced a report that failed to rigorously address itself to his mandate. The Report unsurprisingly and inevitably exonerated the President from any liability to repay any money. Indeed, the Report suggests that still further money needs to be expended to secure the President’s private residence.

8. The current Ad Hoc Committee has been appointed to consider this Report.

C. PART II

9.  The current Ad Hoc Committee has been established to consider the Report by the Minister of Police to Parliament on Security Upgrades at the Nkandla Private Residence of the President. This report is dated 25 March 2015, but was only released on 28 May 2015.

We contend that the Ad Hoc Committee should reject this Report in its entirety, for the following reasons:

9.1 First, because it is unconstitutional and irrational, for the reasons articulated above.  It assumes a status equivalent to that of the Public Protector, which is a Chapter 9 institution.

9.2 Secondly, because the Report is amateurish, facile and superficial. It is poorly drafted, riddled with grammatical, spelling and typographical errors and is, in places, factually inaccurate. Embarrassingly, it relies on “desktop research” that would not pass muster for an average high school assignment, f