Dear Nxesi, your fantasy is damaging South Africa’s reality
- Pierre de Vos
- 13 Nov 2012 05:01 (South Africa)
In a letter to Corruption Watch, the minister again claims that the renovation at President Zuma’s private home (which may or may not be called a compound) was “in line with the Ministerial Handbook”. He concedes that — as I have pointed out before – Annexure E to the Handbook limits the state contribution to security upgrades at the private homes of public office bearers to R100,000.
But the minister is not one to let mere facts come in the way of justifying the unlawful expenditure on his boss’s private crib (also sometimes — but never on the SABC – called a compound). As the Minister informed Corruption Watch:
It should be noted that the residence in question is a private residence but is also used for official purposes. The Annexure E as referred to by your so-called “constitutional expert” refers to private residences of office bearers that are used for private purposes only. The residence in question is used for both private and official purposes.
There are several fatal problems with this explanation. (Hint: it is untrue.)
First, there is no evidence that Nkandla has ever been used for official purposes. As far as I am aware, no head of state has ever been entertained at Nkandla. (However, now would be a good time to tell us whether any very rich and generous foreign leaders – Dos Santos from Angola, Gaddafi from Libya? — have secretly visited Nkandla). When was Nkandla ever used for official purposes, why were we never told about these official visits and why was one of the president’s three official state residences in Cape Town, Pretoria and Durban not used for such purposes?
Second, the Ministerial Handbook obviously does not allow Nkandla to be used for official purposes. It is true that an office bearer (like the president) can designate either a privately owned residence or a state-owned residence as his or her official residence. However, Section 1.2 of Chapter 4 of the Ministerial Handbook states that only a residence at the seat of office (which would be in Pretoria and Cape Town) could be designated as an official residence. One cannot designate one’s private residence as an official residence if that residence is not situated in Pretoria or Cape Town. If a minister had a private home in, say, Paris or in the Cayman Islands, that home could not be designated as an official residence.
Furthermore, one cannot designate several private residences as official residences. This would allow cabinet ministers so “double-dip” as the state would have to pay for security and some of the upkeep at all the residences designated as official residences. The Handbook is rather emphatic about the fact that one has a choice: one cannot designate a private residence as an official residence if one already has a state-owned official residence in that city.
One official residence “at the seat of office” is all that the Ministerial Handbook allows. To hold otherwise would mean that any member of cabinet could buy several houses in various parts of the country (or elsewhere in the world – Switzerland, maybe?) and then designate all these houses as official residences so that the state could pick up the tab for security improvements as well as for certain costs associated with its upkeep. Not even the Ministerial Handbook allows for such outrageous looting of public funds.
Minister Nxesi’s claim that Nkandla is being used for official purposes — if true — would therefore serve as an admission that the president is in breach of the Ministerial Handbook. If he has indeed used his Nkandla home as an official residence despite the fact that it is not situated in either Pretoria or Cape Town and despite the fact that he has state-owned official residences in these two capitals, the president would be in breach of the Handbook. (However, I will assume for present purposes that the president is not in breach of the Handbook because the Minister’s claim is not true.)
Third, the prohibition on the spending of more than R100,000 on security upgrades of an official residence actually refers to a privately owned residence designated as an official residence. This means that even if Nkandla were designated as an official residence (which would not be allowed), Annexure E to the Handbook would limit the cost of security upgrades at Nkandla to R100,000. Section 2.2 of Chapter 4 of the Ministerial Handbook makes this crystal clear (although it refers to a cabinet decision now superseded by the decision contained in Annexure E). The Minister is being less than truthful when he claims otherwise.
So what can be done about this flagrant abuse of public funds? Can something be done to hold anyone responsible for the use of public funds to enrich the president? Here are some ideas.
One can request the minister of defence to provide us with information about which sites have been declared National Key Points, what set of criteria (if any) had been used when making these declarations and whether these criteria made a distinction between private property and property owned or leased by the state. One could also request information from the Minister about the Special Account for the Safeguarding of National Key Points, whether money is allocated to it every year and how much have been disbursed from this fund over the past five years. The request will probably be denied after which one could obtain a court order to force the revelation of this information. It would be interesting to see which National Key Point declarations were retained from the Apartheid era.
One could challenge the constitutionality of several aspects of the National Key Points Act. As I have argued before, the fact that the Act creates criminal offences regarding National Key Points, but allows the Minister the discretion to decide what these Key Points are and does not require the Minister to make this public, almost certainly renders the Act unconstitutional.
One could approach a court and ask it to declare that the Nkandla upgrade was not authorised by the Ministerial Handbook as alleged, that the decision to allocate money to this project based on the Ministerial Handbook was therefore unlawful and/or irrational and/or in bad faith and to order the Minister to repay the wasted funds. The exercise of public power — including the allocation of resources — has to be authorised by law and has to be rational. Where the Minister allocated R250 million to a project based on the fantasy that the Ministerial Handbook authorised this (when it authorises the spending of only R100,000), the allocation cannot be said to be lawful.
It is also irrational because the minister claims that the purpose of the spending was to improve security for the president at a private home used as an official home. But Nkandla is not a private home used as an official residence, so there is no rational relationship between the purpose of providing security at an official residence and the spending to upgrade the private home of the president. Nkandla being a private home (one that is not and cannot legally be designated an official residence), the spending of R250 million on security upgrades to protect the home not used as an official residence is completely irrational.
If the State had spent R250 million to upgrade one of the president’s official residences, many of us would have been deeply upset about this scandalous waste of public funds, but legally we would probably not have had a leg to stand on. But because Zuma has three official residences where the president can receive any dignitary on official business, there are no rational legal grounds to waste this money on Nkandla and enrich the president and his family in the process. (And if the president is scared of a citizens’ uprising, he would have to build a bunker at an official residence, not at his private home.) Ironically, the fact that the minister of public works continues to cling to the fantasy that the Ministerial Handbook authorises this waste of public funds, would make it far easier to challenge his decision to allocate this money in court as the justification is so clearly false.
And when the courts make such a finding — on sound legal grounds — it would actually have the added benefit of enhancing the standing of the judiciary in the eyes of ordinary citizens: citizens who cannot understand that our government took until October this year to deliver textbooks to children in Polokwane, while it was far more efficient in wasting billions of rands on improving ministerial homes and the private residence of a politician who could (theoretically, at least) be voted out of office at the next election. DM
- To call Mandela a saint is to dishonour his memory
- Love me tender: Why ‘it’s complicated’ applies to corrupt private tender processes too
- Nkandla report - the incontrovertible facts no smokescreens can cover
- The colonial roots of conferring silk on advocates
- Structural racism: the invisible evil
- E-toll civil disobedience reveals lack of respect for democracy
- We recognise sex and gender as classifications, so why not race?
- Nkandla Report blackout: It is all about PW Botha's law
- Elections are coming: Can we have some substance, please?
- The JSC: It’s not all bad, and here’s why
- The remembrance and forgetting of things past
- Nkandla: Untangling that rather sticky web
- Employment equity: the trick is in how it’s implemented
- Justice: that elusive prize, and how to get it
- Elections: The tightrope of fairness
- Teen sex: The law can’t replace parenting
- The Hlophe conundrum, revisited
- Khayelitsha policing: among the shambles and turf wars, it’s the residents who suffer
- Media freedom is a right that benefits all
- Attempts to discredit Madonsela could backfire
- The Mdluli matter: Nxasana’s first big test
- Sparing the rod: what it really entails
- Secrecy Bill: a touch more confusion, and a glimmer of hope
- Zuma's Secrecy Bill move: The Darker Side
- Hoffman’s complaint: why it was bound to fail
- Freedom of expression – and the quest for living meaningfully
- When a joke is not a joke
- The bad news: Qwelane’s constitutional challenge might just work
- Restoring the Electoral Commission: What happens next?
- A vote of no confidence is not to be taken lightly, by majority or minority
- The murky marriage of money and politics
- FF+ vs. EFF: doomed to fail
- Spy Tapes: A clear and simple case
- Hell is other people (trolling the Internet)
- Colour me irrational
- Women’s day – just another day for men to call the shots
- Arms Deal Commission: It’s the moment to make or break
- Marikana Commission: More questions than answers
- The court of individual identity
- Pius Langa: A man who knew the meaning of change
- Dear Film and Publications Board, please review your own rules
- Animal antics, and the separation of powers doctrine
- Hypocrisy fit for a king
- Take care with those ‘insults’
- ‘Top secret’ Nkandla report: On the highway to embarrassment
- Traditional leadership: Cat can look at a king
- Equal Education: The Minister doth protest too much
- Willing buyer, willing seller works… If you have a lifetime to wait
- Polygyny: Our human rights half-job
- Trial by media? Actually, that’s impossible
- Pistorius: The horror of a broken (white) body
- Oh what a tangled legal quagmire... when first we practise an NDPP to hire?
- Breytenbach: too little fear, favour and prejudice?
- The curious case of the pastor punished for honesty
- What’s that smell? Must be the name droppings.
- KZN University: A storm in a (Zulu) teacup
- Nkandla: The details will, and should, be made public
- Great speech vs. hate speech: how it really works
- Cape Town evictions: Brutal, inhumane, and totally unlawful
- The new, tamer Secrecy Bill: Still not constitutional
- Zuma and the Guptas: the ‘symbiosis’ continues
- Discrimination is illegal. When will we learn this?
- It’s not a democracy if our children aren’t equal
- An upside-down world: What would happen if we cared about the ‘others’?
- JSC: Let’s inject some common sense, shall we?
- Rose-tinted amnesia: The struggle to ‘rebrand’ SA’s Apartheid past
- Cardinal Napier: the plot thickens
- Redefining ‘merit’: first task for a transformed JSC
- The dating race
- Putting the ‘dread’ into ‘dreadlocks’
- Liars, damn liars, and the SA government
- Constitution clear on troops in the CAR: Zuma must talk to Parliament
- SA in CAR: the questions that remain
- Why are South African soldiers dying in CAR?
- Covering up sexual abuse is a crime, Cardinal
- Nkandla: Oh, what a tangled web we weave…
- The education MEC, children's heads, and a knobkerrie
- In black and white: the truth about ‘unconstitutional’ race quotas in universities
- Losing battles: Why the FMF doesn’t stand a chance
- Democracy vs. traditional leadership: the delicate ballet
- Police brutality comes as a surprise? Really?
- Sometimes a Tweeter is just a Twit
- Lady Justice’s scales appear to be faulty
- Pistorius trial: The legal principles that will decide the case
- Oscar Pistorius case: Bail isn’t denied as easily as you think
- Public opinion: Is there really any danger of prejudice against Oscar?
- All we know is that a woman is dead
- The secret history: Unearthing the mysterious Presidential Manual
- Sexwale abuse allegations: Very much our business
- SA’s rape epidemic: The limitations of outrage
- Will the real freedom of expression please stand up?
- But what of the people of Khayelitsha?
- WWE Smackdown: Zille vs. TNA edition
- Nkandla: Everything that's wrong with the Zuma government
- Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read
- Beyond all (t)reason
- Judicial transformation: South Africa's appalling non-commitment
- The criminal stupidity of criminalising teen sex
- Careful, Mr Mthembu: The re-emergence of Apartheid's 'volksvreemdes' mentality
- Unequal education: the problem with providing learning for all
- SA troops in CAR: Why we should all be worried
- Mulholland column: Ignorance squared is still ignorance
- Elective processes: Something is rotten in the kingdom of the ANC
- Outa application: Courts can't fix political processes
- Chaskalson, SACP and the Constitution: Don’t touch me on my liberalism
- Carlisle and car key confiscation: Don't go with the (traffic) flow
- Dear Contralesa, please approach your nearest healer for a diagnosis
- Simelane: You can't end what never truly began
- Playing by the rules: The balancing act of Judge Dennis Davis
- Sunlight is the best disinfectant
- Lenasia: The haunting abandonment of humanity
- Lies, damn lies, and Zuma's 'bond'
- Show us the money, Mr Zuma
- The opposition doth protest too much: Why the ANC is hellbent on crushing debate
- Note to Zuma: Try commanding respect, not demanding it
- Dear Nxesi, your fantasy is damaging South Africa’s reality
- Running the Gauntlett: Why the struggle for appointment?
- Affirmative action: a decidedly middle-class problem
- Hate crime: there is no such thing as an excuse - ever
- Mfeketo and Zuma: You scratch my back, I'll scratch yours?
- Ramaphosa: Where does corruption begin and end?
- The Zuma recordings: SA is the crayfish, corruption the boiling water
- No safety in numbers: Why a bigger opposition isn't a stronger opposition
- Specs, lies and audiotape - the hidden Zuma recordings
- The ANC on school closures: can they win?
- Thuli Madonsela: The difference between 'unpopularity' and 'misconduct'
- Democracy: it starts in Parliament
- The National Key Points Act: not just unconstitutional, but totally invalid
- Simelane and 'rational' thought
- Halt the witch-hunt, Minister
- Home is where the taxpayer's money is
- Will Malema's case stand up in court?
- South Africa's Striking Miners: A Menace to Society? Or just to the middle class?
- E-tolling judgement: Sorry for Gauteng, but it's perfectly lawful
- Silence is golden - if the speakers are criticising the State
- Malema at the SANDF: Inappropriate? Yes. Illegal? No.
- Freedom of religion: not so free after all
- Whites against Woolworths: doth they protest too much?
- From the NPA with fear, favour - and prejudice
- Marikana murder charge withdrawal: the first glimmer of sanity
- Abuse, Inc: The 'miners made us do it' murder charge
- A marriage made in hell
- Lonmin's Farlam Commission: not bad, not bad at all
- Marikana: Avoidable, unconstitutional… and entirely predictable