20/20 vision for the kingdom of the blind.
26 April 2017 00:34 (South Africa)
Opinionista Pierre de Vos

In the age of consent, the buck stops with Number One

  • Pierre de Vos
    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.

On Sunday night, in an interview on ENCA, President Jacob Zuma – in response to questions about the use of more than R200 million of public funds for upgrades in and around his private homestead – claimed that as president, one did not ask about or debate matters relating to one’s personal security. Unfortunately this statement is patently untrue.

President Zuma claims not to have objected to, nor to have sought explanations about the more than R200 million upgrade of his Nkandla complex. “You don't,” he said. “No president asks that question…. I can tell you sitting here - there are things that they have done that I don't know. In fact, they will tell you [that you are] not supposed to know.

“The only thing I debated was when I saw one of my bedrooms with one little window like it was a prison cell. I said to them: ‘Look, I was in prison for 10 years. I can't be in prison for life now in my home. This one I can't accept.’ I was looking at it from a subjective point of view.”

These claims are surprising. After all, President Jacob Zuma is the head of the government as well as the commander in chief of the defence force. He must also take final responsibility for the intelligence services.

Although the Minister of Police takes immediate responsibility for the police, he does so as a member of the executive. In terms of section 85 of the Constitution, the executive authority of the Republic is vested in the president, who exercises this authority together with the other members of the Cabinet.

This means that in terms of our Constitution the president must take final political responsibility for everything done by members of his Cabinet. Although President Zuma often talks about the government as if it has nothing to do with him, the president does not stand apart from the government he leads but, legally, is the head of the government and is responsible for its actions.

If the president disagrees with the manner in which one of his cabinet ministers performs his or her duties, he has the power to instruct the minister to act differently or, ultimately, to remove the minister from office.

It is of course impossible for the president to have detailed knowledge of every aspect of government. For example, as commander in chief, only the president can send our troops to war. In making a decision on whether it was necessary and wise to launch a military strike against a foreign country and to engage South Africa in a war and if so, what weaponry to use and how many troops to send into harm’s way, the president will first ask for and receive advice from his military chiefs.

However, the final decision will always rest with the president. He is not permitted to delegate the decision to go to war with another country to a Cabinet Minister, to one of his generals or to a junior official in the Department of Public Works or at the Waterkloof Air Force base.

President Zuma may argue that the position regarding his personal security and that of his family is different, that the security experts in the government decide on what security and other upgrades are required at his private home, and that he is “not supposed to know” what these security measures are.

However, such a claim would have an adventurous relationship to the truth.

The Ministerial Task Team which investigated the spending of more than R200 million of taxpayers money on upgrades in and around President Zuma’s private home (not to be confused with one of his three official residences where security measures are already in place) invoked a cabinet decision of 20 August 2003 to justify the spending of more than the Ministerial Handbook stipulated R100,000 on security measures at the private home of the president.

This cabinet policy states that public money could be spent on security upgrades at the private home of the president, but this has to occur “at the request of the President”. In other words, it is only once the president himself has requested a security upgrade that any public money could be spent to enhance security at his private home.

The policy further states that:

“The SAPS shall then advise the Minister of Safety and Security on the proposed safety measures, including the cost thereof. Whatever measures are approved by the Minister for Safety and Security shall subsequently be communicated to the President … for consent. The SAPS shall thereafter submit the measures, as approved by the President…, to the Department of Public Works, which shall approach the Minister of Public Works for approval of the costs of the structural measures.”

In other words, the policy required the president to consent to the spending of more than R200 million at his private home and to approve it in order for it to be implemented.

The president could – in terms of this policy – therefore have refused to consent to the security measures on the basis that more than R130 million of the measures were spent not on security at all but on infrastructure enhancements around the Nkandla complex.

He could also have refused to consent to the security upgrades on the basis that the recommendations were excessive and that he already had access to three secure official homes where him and his family could stay if credible and specific evidence of serious threats to his security ever emerged.

In terms of the cabinet policy – which, as we shall see, is not actually applicable in this case – only those “security enhancements” actually approved by the president could be submitted to the Department of Public Works who would then have to give approval for the budget. The Minister of Public Works who approves the budget is, of course, a member of the executive for whom the president also has to take final responsibility.

Of course, the Ministerial Task Team seemed wrongly to have believed that the cabinet decision of 20 August 2003 (quoted above) actually applied to President Zuma’s private homestead. Perhaps not realising that in a constitutional democracy adhering to the Rule of Law a cabinet decree cannot override legislation duly passed by Parliament, the Task Team failed to take note of the applicable provisions of the National Key Points Act.

As President Zuma’s private home was allegedly declared a National Key Point, the provisions of the Act – not the provisions of the (until recently secret) cabinet decree quoted above – applies to any security upgrades at Nkandla.

In terms of section 3(1) of the National key Points Act:

“the owner of the National Key Point concerned shall after consultation with the Minister at his own expense take steps to the satisfaction of the Minister in respect of the security of the said Key Point.”

Section 3(3)(b) of the Act emphasises the fact that the ACT places onerous obligations on the owner of a National key Point (in this case President Zuma and his family) to carry the cost of any security upgrade at the National key Point, stating that if the owner of a Key Point refuses or fails to effect the security upgrades as instructed:

“the Minister may take or cause to be taken the said steps irrespective of whether the refusal or failure took place with or without reasonable cause and irrespective of whether the owner was charged or convicted in connection with that refusal or failure, and the Minister may recover the cost thereof from that owner to such extent as the Minister may determine.”

The Act also states that where the owner fails to or refuses to effect the security upgrades at his or her own cost as required by the Act, he or she is guilty of a criminal offence and is liable on conviction to a fine not exceeding R20,000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.

The Act does allow the responsible Minister to take any or all of the steps which in his opinion are or may become necessary in respect of the security of that Key Point, in which case the owner “shall be liable for the cost… to such extent as the Minister may determine”. However, section 3A clearly states this can only happen “with the consent of the owner of a National Key Point”.

Whether you therefore invoke the secret Cabinet decree (which is overridden by the National key Points Act) or whether you rely on the National Key Points Act itself – as would be legally correct – the golden thread that runs through these provisions is that any security upgrades at President Zuma’s Nkandla homestead could only have happened with the knowledge and consent of President Zuma himself.

President Zuma’s claim that “I am not supposed to know” about security measures at his private home near Nkandla can therefore not conceivably be true. DM

  • Pierre de Vos
    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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