If a City Press report over the weekend is correct and if it is indeed true that the Department of Public Works has approved a whopping R203-million budget for the hush-hush revamp of President Jacob Zuma’s private Nkandla homestead, one must ask why public funds are being used to enrich our president and to help pay for his lavish lifestyle. Is it legal for the president to use public funds to upgrade his private residence? Will the Hawks be investigating what appears to be the criminal misuse of public funds, and if not, why not?
According to City Press, the Department of Public Works approved the budget in March last year, despite earlier claims by the department that Zuma was funding the project from his own pocket. According to official departmental documentation, the president will “only” pay R10.6 million of this cost himself. (How our president will be able to afford to pay the R10 million, given that he has only earned about R56 million since becoming president, is another question the Hawks might want to look into.) The work – which allegedly includes the building of a helipad, underground bunkers and fencing around the entire complex – was started by contractors in 2010.
The presidency and public works have declined to comment on the project, which is titled Prestige Project A, citing security concerns. The department’s acting director-general, Mandisa Fatyela-Lindie, declined to comment on the amount that was spent because Nkandla was a national key point. “As such, information related to the national key point is protected in terms of the National Key Point Act,” she claimed.
The starting point for any legal evaluation of this alleged splurge of public funds to improve the private residence of our president must be the Executive Members Ethics Act and the Code adopted to give effect to it, which binds all Cabinet members, including the president.
The Act and the Code prohibit the president from acting in a way that is inconsistent with his office, using his position to enrich himself, or acting in a way that may compromise the credibility or integrity of his office or of the government. The Code further prohibits the president from making improper use of any allowance or payment properly made to him, or to disregard the administrative rules which apply to him.
It is clear that the spending of more than R200 million on an upgrade to the private home of President Zuma would be in clear breach of these obligations and would therefore be unlawful. If the presidency fails to put a stop to this immediately, we will know that the person who took bribes from Schabir Shaik has not become any more ethical since becoming president of the country.
The source of administrative rules is the (in)famous Ministerial Handbook, which (believe it or not) does prohibit the state from paying for the renovation of the private residences of cabinet members – even when used as official residences. Chapter 4 of the Ministerial Handbook states that members of the cabinet “are responsible for all costs related to the procurement, upkeep and maintenance of private residences used for official purposes”.
The Ministerial Handbook – bizarrely claimed to be a classified document but widely available on the internet – does allow for part of the cost of security arrangements at the private houses of “Public Office Bearers” to be carried by the state. However, in Annexure E to the Handbook – adopted by Cabinet on 11 June 2003 – the following rules are set out for the funding of security measures at the private residence of the president or other Cabinet members:
“The Minister of Public Works may approve only a State contribution of a non-recoverable maximum amount of R100,000, or the total cost of security measures not exceeding R100,000. Should the cost of the security measures be more than R100,000, the difference shall be borne by the Public Office Bearer. The State’s contribution of R100,000 should be reviewed every five years to match with the changing costs for security systems.”
The president is clearly a Public Office Bearer. Nkandla is clearly his private home which, in addition to his two official residences, he sometimes uses as an official residence. Any amount above R100,000 spent on any upgrades at Nkandla (even for security-related reasons) are therefore not spent in accordance with the provisions of the Ministerial Handbook and must be deemed unlawful.
In the light of the above, one could be forgiven for describing the budgeting of more than R200 million of public funds (which could have been spent on textbooks or houses) for the secret upgrading of the president’s private home, as the blatant looting of public funds by a president who lacks even the most basic sense of right and wrong.
It is true that the National Key Points Act (a piece legislation adopted at the height of Apartheid in 1980) provides for the use of public funds to protect so called national key points. But such expenditure can only be paid from the Special Account for the Safeguarding of National Key Points and only on instructions of the Minister of Defence. This was clearly not done in this case, which means the Key Points Act is not applicable here.
No wonder the government is trying to hide details about the unlawful expenditure by invoking a piece of draconian Apartheid legislation on national key points. But this is unfortunately also nonsense. Even the Key Points Act does not entitle the government to avoid accountability for the spending of more than R200 million on upgrading of the private residence of the president.
It is true that section 10(1)(c) of the Act prohibits anyone from providing any information relating to security measures in respect of a key point unless he or she is legally obliged to do so. But in this case, the unlawful spending of more than R200 million on upgrades on the private home of the president does not relate to security measures at his home.
While the government can decline to provide detailed information of the security measures taken at Nkandla and need not tell us, say, how many guards are on duty there or what other legal measures are in place to protect the president, they cannot invoke the National Key Points Act to try and hide the unlawful expenditure on the upgrading of his private house through the looting of public funds.
In a constitutional democracy, legislation can never be used to hide unlawful conduct, maladministration or corruption, and neither can it be used to try and escape from accountability for the spending of public funds. The attempt by the acting Director General to do so is shameful and displays a contempt for all 50 million South African citizens who are footing this bill through their payment of various taxes. DM
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.
"Go down this set of stairs and then just run - run as fast as you can." ~ Lt David Brink, 9/11