In a statement issued late on Tuesday night, the presidency announced that President Jacob Zuma has made a written proposal to the Constitutional Court to end the long drawn-out battle over the security upgrades at his Nkandla residence. Zuma is proposing that the court request the Auditor-General and Minister of Finance to determine the amount he should pay. The surprise move is in response to the Constitutional Court application by the Economic Freedom Fighters (EFF) and Democratic Alliance (DA) to declare the president’s response to the Public Protector’s report unconstitutional. Zuma however “remains critical of a number of factual aspects and legal conclusions in the report”. By RANJENI MUNUSAMY.
At 10:18 pm on Tuesday, a statement was issued by the presidency with the heading “President Zuma proposes solution to Nkandla case”. If this statement was read by someone who had been in a coma for the past two years, it may have come across as a proactive gesture by the President of the Republic to put an end to a tricky problem affecting his country.
It might even seem “presidential”.
As it turns out, the announcement by the presidency that Zuma was now willing to comply with the recommendations of Public Protector Thuli Madonsela’s report on the Nkandla security upgrades came 21 months after he was meant to do so. The exorbitant expenditure on Zuma’s private home at Nkandla was first exposed in December 2009 by the Mail & Guardian. Madonsela released her report, which found that a whopping R246 million had been spent on the project, on 19 March 2014.
In the report Madonsela said Zuma had violated the Executive Ethics Code through his “failure to act in protection of state resources”. She also found that Zuma and his family derived benefit from non security upgrades to the homestead, namely the visitor’s centre, cattle kraal, chicken run amphitheatre and swimming pool.
She recommended that the president, with the assistance of the National Treasury and the South African Police Service, determine a reasonable percentage of the costs of the non-security upgrades and pay this back to the state. The recommendation led to a long drawn-out battle after the president referred the matter to Parliament. This resulted in two ad-hoc committee processes as well as an investigation by the Minister of Police Nkosinathi Nhleko, all of which resulted in Madonsela’s report being undermined and Zuma being exonerated from having to pay back the money. The Special Investigating Unit and a government task team, which donated the term “firepool” to the lexicon, also investigated the Nkandla upgrades.
After numerous standoffs in Parliament, including violence at last year’s State of the Nation Address (SONA), the EFF, and later the DA, decided to apply to the Constitutional Court to pronounce whether the president’s actions on the Public Protector’s report were constitutional. Madonsela joined the applications as an interested party. The matter is set down to be heard on Tuesday 9 February. The EFF has planned a mass march outside the court for the hearing, two days before the 2016 SONA.
The presidency said in the statement that Zuma’s attorneys had written to the registrar of the Constitutional Court on Tuesday morning proposing “a simple course to implement what the Public Protector recommended as remedial action contained in the report”. The statement said the president “remains critical of a number of factual aspects and legal conclusions in the report”.
The line is a clear indication that Zuma still does not agree with Madonsela’s findings but is looking for a way out of a potentially explosive judgment from the Constitutional Court that could be a devastating indictment on his conduct as president. The judgment will also have implications for other cases where the Public Protector’s findings were not complied with.
The presidency said the report had identified irregularities that occurred in the course of upgrades by the Department of Public Works, in liaison with other departments. “How those irregularities happened continue to be investigated in separate inquiries relating to officials and professional consultants on the project.”
“The report specifically found no wrongdoing of any kind by the President,” the statement said. “It also found no benefit for which the President could to any degree be required to compensate the state in relation to nearly all aspects of the project. But in relation to five features of the private homestead the report directed a further process to be carried out by National Treasury in conjunction with SAPS.”
“The actual amount that the President is required to pay was not determined by the Public Protector who limited herself to setting out this process for the amount to be determined,” the presidency said.
After allowing the matter to drag out and plague his presidency and the ANC, Zuma now “supports the need for finality in the matter of the Public Protector’s report”.
“However, he believes and contends in his affidavits filed in court that the DA and the EFF have misinterpreted and/or are manipulating the Public Protector’s report for the purposes of political expediency,” the statement said.
Zuma proposed that to achieve an end to the drawn-out dispute in a manner that is “beyond political reproach”, the amount he is to pay should be independently and impartially determined. “Given the objection by one of the parties to the involvement of SAPS, as the Public Protector herself had required, the Auditor-General and Minister of Finance be requested by the court, through appropriate designees, to conduct the exercise directed by the Public Protector.”
The statement said the proposal was initially made in the president’s answering affidavit in November last year but the EFF, DA and Public Protector have not responded to it.
“It will now be for the court to decide if the offer is an appropriate basis for an order when the applications are argued on 9 February 2016.”
If the Constitutional Court does accede to the president’s request, it could render next week’s case academic. This will take a huge burden off the President of having a damning judgment against him from the highest court in the land.
Of course the judges have the discretion to offer commentary on the matter before granting his order, or decide that they still want to hear the case out. They could also decide Zuma should not have to pay back the money, but the president’s proposal is possibly an acknowledgment by his legal team that the chances of this happening is minimal.
The “solution” Zuma is offering might finally bring closure to a messy battle but the Nkandla saga will forever be a shameful chapter in South Africa’s political story. DM
Photo: President of South Africa Jacob Zuma gestures during a news briefing with Dutch Prime Minister Mark Rutte (not pictured) at the Union Buildings in Pretoria, November 17, 2015. REUTERS/Siphiwe Sibeko