Analysis of the third kind
31 October 2014 06:35 (South Africa)
Opinionista Pierre de Vos

Nkandla: The spinning, mincing, dicing - and the report we're not allowed to read

  • Pierre de Vos
At first glance Public Works Minister Thulas Nxesi’s latest explanations on government spending at President Jacob Zuma’s Nkandla home do not make any sense. According to Nxesi a government investigation has allegedly both revealed that the state paid over R206 million for the upgrade of Nkandla “so far” (R71 million of that for “security upgrades”), and found “no evidence that public money was spent to build the private residence of the president or that any house belonging to the president was built with public money”. But Nxesi might not have contradicted himself – it all depends on how one defines terms like “build”, “private residence” and “belong”.

When former President Bill Clinton tried to explain in 1998 during his grand jury testimony on the Monica Lewinsky affair why he had not lied to his top advisors, despite having assured them that “there is nothing going on between us”, he famously said that it all “depends on what the meaning of the word ‘is’ is.” Later, when asked if he was ever alone with Lewinsky he said: “It depends on how you define alone…”

Clinton was widely ridiculed for his lawyerly parsing of words. Nxesi is surely also going to be derided for claiming that although the state spent more than R135 million on non-security related upgrades at Nkandla, none of this was spent to build the private residence of the president. I will leave it to the comedians to mock Nxesi. Instead, I propose to parse his word in the best lawyerly fashion, before determining whether it was lawful to spend over R200 million on construction at the private residence of the president.

Of course, we do not know what is really contained in the report of the government task team set up to investigate the spending at President Zuma’s private home at Nkandla. Nxesi is refusing to release the report for “security” reasons, which means we should treat his most recent statements about the matter as no more than allegations. But assuming these allegations are true, this is what I suspect Nxesi might have meant.

Nxesi originally claimed that the government only spent money on security upgrades at Nkandla. He now admits that his previous claim was false. According to Nxesi, the government allegedly spent just over R71 million on “security upgrades” at Nkandla. Over R20 million of this was allegedly spent on private security consultants. (By the way, the use of private consultants suggests that our government is not very serious about President Zuma’s security. Who says these security consultants won’t sell information about the security measures at Nkandla to a foreign government or to the Boeremag? These consultants obviously know how to make a fast buck, so there are no guarantees that they will keep their special knowledge secret.)

Nxesi now claims that the government allegedly spent a further R135 million on non-security related construction at Nkandla, but none of it was allegedly used to build the private residence of President Zuma or on any of the houses that belong to him. How can this be true?

It can be true, firstly, if one adopts an innovative definition of “build” to include only houses built from scratch. This definition of “build” would exclude any cost related to the upgrade or extension of existing houses. For example, installing gold taps or electrically heated toilet seats in his residences, or adding a few rooms to an existing structure at Nkandla, would then conveniently not fall within the definition of “build”.

Secondly, it can be true if one assumes that a “private residence” is only the main house where the president normally sleeps and works. Other houses in the Nkandla compound – where the family watches TV, or where his wives, children, extended family sleep – would then conveniently not be viewed as his “private residence”. That would mean that some of the R135 million was used to build many other houses at Nkandla for the private use and benefit of President Zuma and his family but these would then not be viewed as his “private residence”.

Thirdly, Nxesi might have meant that although R135 million was spent to build several buildings at Nkandla and that many of them are exclusively used by Zuma and his family, these buildings do not “belong” to Zuma, because they were built on communal land and are not legally registered in his name at the deeds office. It could also mean that he had ceded the houses to one of the Guptas or to First National Bank, which allegedly was kind enough to break the rules and register a bond over the property despite the lack of a title deed.

Does this clear things up? Perhaps not, as there is still the little matter of the Ministerial Handbook, the go-to Bible of our Ministers and MECs. The Handbook states that:

“The Department of Public Works will be responsible for making available general cleaning services in private residences used for official purposes. Members are responsible for all costs related to the procurement, upkeep and maintenance of private residences used for official purposes.”

But, dear readers, there might be a loophole in the Ministerial Handbook, as it defines a “Member” as any “Minister, Deputy Minister, Premier, Member of the Executive Council (MEC) and a Presiding Officer/Deputy Presiding Officer in Parliament”. One can therefore argue that as far as the Handbook is concerned the president is not a “Member” (no sniggering) and that the state is therefore not bound by this strict prohibition on the use of state funds for the procurement or upkeep of his private residence. While it is obviously unconscionable for the state to spend R135 million on upgrading the private property of the president, one might argue that the Ministerial Handbook does not prohibit this. Just like the Bible sanctions the keeping of slaves, the Ministerial Handbook might sanction the use of public funds to enrich the president.

Perhaps the drafters of the Ministerial Handbook assumed that the president could be trusted not to waste R200 million of public funds on his own comfort while many of our compatriots languish in poverty. After all, should one not assume that if one cannot trust the president of the ANC to put the interest of the poor above his own interest, who can one trust to do so?

Ironically, this potential loophole does not seem to be available to justify the spending of R71 million of public funds for security upgrades at President Zuma’s private residence at Nkandla. This is so because Annexure E to the Handbook limits the amount of public funds that can be spent on security upgrades of the private house of a “Public Office Bearer” if it is being used as an official residence to the “maximum amount of R100,000, or the total cost of security measures not exceeding R100,000”. One cannot really get language more precise and clear than this.

President Zuma might not be a “Member”, but – as I have argued before – he almost certainly is a “Public Office Bearer” and is therefore bound by the R100,000 limit imposed by the Ministerial Handbook for state sponsored security upgrades of a private residence being used for official purposes. As the president is a member of the cabinet and is empowered by the Constitution to exercise public power as head of the executive, it would make no sense if he were not included in the definition of “Public Office Bearers”. This view is strengthened by the fact that the Remuneration of Public Office Bearers Act of 1997 regulates, amongst other things, the determination of the salary of the president by the Commission for the Remuneration of Public Office-Bearers.

In any event, if we leave the lawyerly parsing of words aside for the moment, the one big question that no one has been able to answer is this: how can anyone ethically justify the use of R250 million of public funds on the enrichment of President Zuma? Is it not, as a matter of plain decency, unconscionable that so much money is spent on the private home of an elected politician who might be voted out of office in 2014, while that money could have been used to build houses for the poor, provide textbooks for learners, build a new university, or improve health care for those who cannot afford medical aid?

In short, when the president and his enablers decide that it is better to spend over R200 million on improving the life of the president rather than to spend it on improving the lives of the millions of South Africans who rely on the state to help them gain a semblance of dignity, what does that say about the character of the president and those who justify and defend this wasteful expenditure or remain silent about it? DM

  • Pierre de Vos
Pierre de vos

Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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