The unfolding scandal about the use of more than R205 million of public funds to upgrade President Jacob Zuma’s private homestead serves as a perfect metaphor for what is wrong with the Zuma government, led by an former criminal accused in a fraud and corruption case. The bizarre secrecy and dissembling, the appeal to national security, the self-enrichment and the misappropriation of funds are the hallmarks of Zuma’s presidency. And as often has been the case in recent years, the judiciary may be the only body who is capable of providing an effective avenue for challenging the abuse of public funds in the Nkandla affair.
As I have argued before, it is generally not desirable for the judiciary to get involved in party political squabbles. Nor is generally a good idea to ask the judiciary to overturn unwise decisions of the government or to try to stop the selfish and degenerate behaviour of politicians. But our courts have a constitutional duty to uphold and enforce the Constitution. When the venality of politicians become so egregious that it threatens the democracy itself, or poses a serious risk to the Rule of Law, the courts – acting as guardians of the constitutional democracy – may have no other option but to intervene when asked to do so.
There are at least two ways in which the courts could intervene to stop the continued looting of public funds. All we need is a man or woman with deep pockets to fund these challenges. Maybe one of the staunch ANC members feeling guilty about being silent in the face of such abuse of power could be persuaded to help. I would gladly donate my time and whatever skills I have.
First, if requested to do so, the Constitutional Court will almost certainly declare the Apartheid-era National Key Points Act unconstitutional. The Act empowers the relevant Minister to declare any “place or area” a National Key Point if it “is so important that its loss, damage, disruption or immobilisation may prejudice the Republic or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. The Act does not require the Minister to inform the public about which places or areas have been declared national key points and Police Minister Nathi Mthethwa has refused to list all national key points “for security” reasons. National Key Points are so secret that we are not even allowed to know where they are.
Section 10 of the Act prohibits any person from obstructing the owner of a Key Point from securing the National Key Point. (Incidentally, the owner of the National Key Point is supposed to secure that place or area “at his own expense”.) The Act also prohibits any person from providing any information “relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so”. If you breach this law, you face a prison sentence of up to three years.
The National Key Points Act therefore creates secret crimes and turns us all into potential criminals. In this Kafkaesque world, the law prohibits us from revealing security measures about a National Key Point, while also making it impossible for us to find out which places or areas have been declared National Key Points. For all we know, all open air toilets and all shopping malls in South Africa have been declared National Key Points and anyone who tells her friend where the security guard looking after the toilets or the mall is sitting is facing a three-year prison sentence.
The Rule of Law is a founding value in the Constitution and in Dawood v Minister of Home Affairs, the Constitutional Court confirmed that this value includes the requirement that legal rules had to be conveyed in a clear and accessible manner. This requirement that legal rules must be clear and accessible is more pressing in criminal cases, in order to avoid a situation where you could be deprived of your freedom and sent to jail on the basis of a secret law that you could not possibly have known about.
Second, the decision to allocate more than R200 million of public funds to upgrade the private house of a politician may well be challenged on the basis that it is irrational. President Zuma has three different official residences that are well-protected and secure. If he feels scared or paranoid he can always go and sleep in one of these three official residences where one assumes security is tight. Moreover, like every other president in our democracy, he will retire, at the most, after two terms in office. He will then live in a compound valued at more than R200 million. Shortly before he became president, the same property was valued at just over R400,000. In other words, it is as if President Zuma instructed the Treasury to write him a R200 million personal cheque, which he then spent on housing renovations. Even Schabir Shaik did not have that kind of money to bribe Zuma with. In short, the spending of R200 million of public funds at Nkandla is a form of state-sanctioned (and defended) personal corruption.
The Constitutional Court has said that the rule of law requires the president and all other public officials to exercise their powers in a rational manner. In Prinsloo v van der Linde, the Court explained that public officials should not act:
in an arbitrary manner or manifest “naked preferences” that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state….. This has been said to promote the need for governmental action to relate to a defensible vision of the public good…
If the official action is not taken to pursue a legitimate government purpose, or if there is no rational relationship between the legitimate government purpose and the official action, the action is in conflict with the Rule of Law and therefore unconstitutional and invalid.
On Sunday, Publics Works Minister Thulas Nxesi claimed that “only” R70 million of the more than R200 million was used for security related upgrades at Nkandla. This presumably includes the cost of the underground bunker as well as the cost of bulletproof windows. More than R135 million was used for “operational needs for state departments”, which includes the cost for a private a clinic and other “accommodation”. Money was also used for a private lift, a tuck shop, an Astro Turf soccer field, two guard houses, refuse and electrical rooms, electrical supply, sewer treatment plant, relocation of families forcibly removed from their homes to make way for the Nkandla expansion, the upgrade of water supplies, an entrance by-pass, an entrance road and, last but not the least, a cattle culvert.
Upgrading security arrangements to protect the president would almost certainly be considered a legitimate government purpose. The government therefore pursued a legitimate government purpose when it authorised the spending of over R70 million at Nkandla. Whether there was a rational relationship between the legitimate government purpose and the astronomical spending of R70 million is another matter. Can one say that there is a rational connection between the aim of protecting the president by building a bunker under his private home, given the fact that we are not at war with any country and given the fact that his official residences must include the kinds of facilities now replicated at his private house – all at state expense? I doubt it, but am open to being persuaded otherwise.
But it is the spending of R130 million on operational expenses that is never going to fly and must clearly be irrational. These expenses had the sole aim of enriching Zuma and providing him with a huge compound of buildings and other facilities (including a clinic, water plant, sewer treatment plant and a tuck shop) – all paid for by the state. This kind of spending cannot possibly be said to “relate to a defensible vision of the public good.” Is it a defensible vision of the public good that the President be treated differently from every other citizen? How does one defend this spending as demonstrating an acceptable vision of the public good in a democracy when the money was used to doll up the private home of the president by adding a tuck shop, an Astro Turf and a cattle culvert; by adding a private lift and electrical rooms, by building a private sewer treatment plant? (I recall that in some municipalities our people still use the bucket system – and unlike the president they do not earn R2.4 million with which they can build their own toilet.)
The answer can only be NO.
If President Zuma wants a private lift or a sewer plant, he must either wait his turn or he must pay for it himself – like every other private citizen in South Africa. Being president does not allow him to dip into public funds to enhance his own private comfort. He is not our king or queen and neither is he President-For-Life. President Zuma is merely another politician on the take. His term of office will eventually come to an end, after which he is entitled to a state pension. Unless he is impeached for a serious violation of the Constitution or the law or serious misconduct – in which case he will receive no benefits that usually accrue to a former president.
There is no legitimate purpose for spending R130 million of public funds on Jacob Zuma’s private home to enhance his comfort. The spending is therefore irrational and unlawful and a court could declare it so, and order the president and/or the Minister to repay the R130 million to the state. DM
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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.
"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon