Nkandla is well established as the prime symbol of corruption and wasteful expenditure in SA. But it is the DA’s intention that the saga will ultimately serve to confirm the legal authority of the Public Protector, one of the most important institutions of our democracy.
Next Tuesday, 9 February, the Constitutional Court is set to hear the EFF and DA’s argument that President Zuma must comply with the Public Protector’s April 2014 report, entitled Secure in Comfort, which ordered, amongst other things, that a reasonable portion of the non-security upgrades to his personal homestead at Nkandla must be repaid.
On Tuesday this week, with just one week to go till the Court hearing, the Presidency offered an out of court settlement, proposing to pay an amount decided by the Auditor General. This is obviously an attempt to avoid what may be an enormously damaging judgement from the Constitutional Court.
If the highest court in the land finds that public money was misspent to his personal benefit, it will be an embarrassing and ill-timed blow to his presidency, possibly even fatal. And it will restrict his ability to loot the state further: the judgement will set an important precedent for all other cases concerning the authority of the Public Protector.
The DA has rejected the President’s offer on the basis that it does not comply with the Public Protector’s order, as set out in her report.
The Public Protector’s report ordered four remedial actions: to determine, with the assistance of National Treasury and SAPS, the reasonable cost of upgrades to his private residence that do not relate to security (including the visitor’s centre, amphitheatre, chicken run, cattle kraal and swimming pool); to repay a reasonable percentage of this cost; to reprimand the Ministers involved for the appalling manner in which the Nkandla Project was handled and state funds were abused; and to report to the National Assembly on his comments and actions within 14 days.
In his settlement offer, the president is suggesting that he repay an amount determined by the Auditor General. In effect, rather than act on the Public Protector’s orders, he is simply setting up yet another parallel process, while doing nothing to address the last two stipulations. This would be his sixth attempt to avoid abiding by the Public Protector’s report: first was the ‘inter-ministerial committee’, then the SIU investigation, then the ad-hoc parliamentary committee (versions 1 and 2), then the laughable whitewash by the Minister of Police (including a demonstration video of the firepool), and now this.
This settlement offer is motivated by a desire to stall for time, to get the State of the Nation Address and Local Government Elections behind him before any definite resolution, as well as by a desire to avoid a definitive court judgement altogether.
But even more importantly, given that the President has been able to side-step this burning issue since 2014, and given that the executive is increasingly advancing the interests of a small politically connected group at the expense of the public, it is vitally important that the DA follows through with its legal route.
If we win this case, as we rightfully should, it will establish an important legal precedent, which is that the Public Protector’s orders are binding, rather than merely advisory. The Public Protector’s office will be confirmed as an institution with the legal clout to hold the executive to account.
It is one of the independent institutions set up in Chapter 9 of the Constitution to provide extra safeguards to the abuse of executive power, in addition to the normal checks and balances of democracy.
According to the Constitution, in the event that power may have been abused, the Public Protector has the power to order remedial action to be taken, and it has done just that in the case of Nkandla.
It has been quite something watching the ANC spin and contort itself over the past three years to protect Zuma from accountability for Nkandla. Audaciously, Minister Nhleko’s report, published in August 2015, found that not only was the entire R246 million of security upgrades necessary, but that a further security expenditure of R31 million was required. This was a ludicrous finding that simply confirmed Minister Nhleko as another lackey.
It was Minister Nhleko’s report that prompted the DA to take the issue to the Constitutional Court. The outcome of this case will build on a legal foundation that the DA has already laid by challenging the SABC in the Cape High Court for ignoring the Public Protector’s order to suspend Hlaudi Motsoneng and subject him to a disciplinary process. In this case, Judge Schippers found that the Public Protector’s orders “could not be ignored, but are unenforceable”. The follow-up judgement in the Supreme Court of Appeal was much clearer: the Public Protector’s orders must be obeyed unless set aside in a court of law.
So if the Constitutional Court finds in the DA’s favour, the true prize will be far more valuable than the millions of rands that Jacob Zuma will be obliged to repay. The real prize here is the strengthening of our democratic institutions and their ability to curb our increasingly unscrupulous executive.
The interesting question will then become: where will he get the money to repay us?Mmusi Maimane