Constitutional Hill


That Nkandla SMS: why it is (legally) complicated

Courts are often not well placed to act as mediators in highly charged political disputes. The ANC’s attempt to use the court to deal with the DA’s claim that the Public Protector’s Report “showed that Zuma stole your money to build his R246 home” is a case in point.

Election campaigns tend to get extremely heated and the rhetoric overblown. Leaders of political parties do not only make wild promises they know they can never keep (we all know there won’t be 6 million jobs – or even job opportunities – after the election), they also hurl insults and accusations at their opponents that might ring true for some voters but – from a legal perspective – are difficult or impossible to prove.

When ANC politicians claim that the DA is a racist party, that it does not care about the poor or that it will bring back Apartheid if elected, we all know that these claims are part of the ANC’s election rhetoric. Some voters will take it seriously and some will not. The best way the DA could counter such claims is to demonstrate, through their words and action, that the claims are untrue.

Similarly, when the DA claims that President Jacob Zuma has stolen taxpayers’ money, that ANC leaders are all corrupt or that the ANC will undermine the Constitution, we all know that this is part of the DA’s election rhetoric. Some voters will believe the claims and some will not. Surely the best way for the ANC to counter such claims would be to show, through words and deeds, that the claims are untrue.

The ANC chose not to follow this route to challenge the accuracy of the SMS sent by the DA that the Public Protector Report shows that President Zuma has stolen taxpayers’ money. Perhaps because it thought it would not be able to win the argument or because it feared that the damage done to the ANC brand by the Nkandla scandal could not be repaired through reasoned debate and argument alone, it approached the court to try and stop the DA from making these claims.

The ANC relied on section 89(2)(c) of the Electoral Act which prohibits any person from publishing any false information with the intention of influencing the conduct or outcome of an election and on item 9(1)(ii)(b) of the Electoral Code which prohibits any registered party or candidate from publishing false or defamatory allegations in connection with an election in respect of a candidate or that candidate’s representatives.

If a court were to interpret these provisions strictly, it would have a drastic effect on what could and could not be said during an election campaign. It would then become illegal to make accusations about a political party or its candidates unless it could easily be shown that the accusations are true.

A large amount of statements made by ANC politicians about opposition parties and quite a number of statements made by opposition parties about the ANC would immediately be rendered illegal during an election campaign.

It will always be very difficult, if not impossible, to show that many of the accusations made during an election campaign are indeed true. A strict interpretation of the Electoral Act would therefore impose a drastic limit on what could be said during an election campaign and would impoverish political debate and contestation.

As the distinction between facts and opinion based on those facts can be very difficult to maintain, politicians would have to curb their exuberance when making claims about opposition parties and their candidates.

As a result, those taking part in the election campaign would be unable to raise many critical questions about their opponents and voters would be deprived of opinions about political parties and their candidates that may otherwise have played a pivotal role in their decision who to vote for.

A narrow, literal, interpretation would therefore leave the relevant sections of the Electoral Act open to constitutional challenge.

It may be for this reason that the High Court reinterpreted the relevant sections of the Electoral Act in line with section 39(2) of the Constitution. This section requires a court when interpreting any legislation to “promote the spirit, purport and objects of the Bill of Rights”.

If words in legislation are reasonably capable of an interpretation in line with the provisions of the Bill of Rights, a court must give those words the constitutionally valid meaning.

The court thus rejected the argument, advanced on behalf of the ANC, that section 89(2) created strict liability and prohibited false statements even where those who made them believed them to be correct.

Instead it interpreted the section in the light of the right to freedom of expression and in the light of section 1 of the Constitution, which states, inter alia, that ours is a state based on the values of a “multi-party system of democratic government, to ensure accountability, responsiveness and openness”.

The judgment thus, somewhat controversially, introduced the principles developed in law of defamation regarding fair comment when interpreting the relevant provisions in the Electoral Act.

In effect, the court found that you would not be in breach of the Electoral Act every time you make what turns out to be a false statement about a candidate or political party. You will only be in breach of the Act if your statement is false and does not amount to “fair comment”.

The court noted that in the law of defamation regard must be had to who is being targeted. Politicians and public figures must not be too thin-skinned about comments made about them. What may be defamatory of a private person may not necessarily be defamatory of a politician or a judge. This is so because right-thinking people will probably not likely greatly be influenced in their esteem of a politician by derogatory statements made about him or her.

Interpreted in the light of the law of defamation, a comment based on facts need not commend itself to the court, nor need it be impartial and well-balanced. Fair comment requires only that the view must – objectively speaking – be an honest and genuine expression of opinion about a set of facts and must not disclose malice.

The idea is that divergent views should be aired in public and subjected to debate and scrutiny because it is through such debate that bad ideas will be exposed and shown to be wrong-headed. Untrammeled debate enhances truth-finding. If the relevant sections of the Electoral Act were interpreted too strictly, it would make untrammeled debate very difficult, if not impossible.

Given this expansive interpretation of the relevant provisions of the Electoral Act, the court found that the comments made by the DA in its SMS constituted fair comment.

This was so because the DA SMS did not state as fact that the Public Protector Report found that President Jacob Zuma stole money. Instead the SMS claimed that the Report “show[ed]” that he did so.

In this regard the court noted that the Public Protector’s Report found that government created a license to loot situation during the Nkandla construction. It also noted that the president was aware of the upgrades but never raised any concerns as to the scale and cost of the upgrade, that he thus tacitly accepted the upgrades and that he improperly benefited in the process.

The court thus found that the SMS expressed a conclusion which could be fairly reached by a person reading the report.

Although the judgment wisely attempted to narrow the scope of section 89(2)(c) of the Electoral Act and item 9(1)(ii)(b) of the Electoral Code in order to preserve a space in which robust free and fair campaigning could occur, another court may well find that the wording of the Electoral Act could not reasonably be interpreted in the way the court interpreted it.

However, I would guess that if another court declined to follow the reasoning of the High Court, and instead interpreted the relevant sections to prohibit all claims made about a political party or its candidates that cannot be shown to be true, it would render these sections of the Electoral Act unconstitutional for breaching the right to freedom of expression.

There is therefore a possibility that an appeal of the judgment by the ANC may be successful. If it is successful, then it would leave the relevant sections open to constitutional attack.

It may therefore well be that after a lengthy legal battle, more or less the same outcome reached by the High Court is reached by another court – but based on different grounds, namely that the sections invoked by the ANC are unconstitutional.

The unbearable lightness of being a Nkandla Report critic

Like any judgment in a court of law, a report of the Public Protector is not above criticism. Although it is a criminal offence to insult the Public Protector or to say anything about an investigation that would have constituted contempt of court if it had been said of court proceedings, criticism of the findings of the Public Protector should be welcomed. However, some of the criticism levelled at the Public Protector’s Nkandla Report is so far off the mark that no rational person, acting in good faith, could possibly have made it.

The investigation and report of the Public Protector into the use of public funds for large-scale construction at President Jacob Zuma’s private homestead near Nkandla, and into Zuma’s denials about this to the National Assembly, can indeed be faulted.

This is illustrated by the failure of the Public Protector to use her extensive legal powers to try to prevent the president from thwarting the investigation and her failure to act more decisively to try and force him to comply with his legal duties.

Section 7(4) (read with section 9(3)) of the Public Protector Act renders it a criminal offence for any person to refuse or fail to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated. It also renders it a criminal offence to refuse to answer questions duly put to that person by the Public Protector about an investigation.

However, when the president failed to answer most of the relevant questions put to him by the Public Protector and further failed to provide evidence of the alleged bond (as he was legally required to do), the Public Protector did not force him to comply with the law.

Neither did she refer the president’s failure to answer most of her questions and to furnish her with information about the alleged bond to the police or the National Prosecuting Authority for further investigation and possible criminal prosecution.

The Public Protector also did not make use of section 7A of the Act to obtain a search and seizure warrant allowing her office to search the private home and the office of the president for documents relating to the investigation which the president had illegally refused to hand over to her office.

Furthermore, the Public Protector found that the claim made by President Zuma to the National Assembly that his family had built its own houses and the state had not built any for it or benefited them was not true. However, curiously, she found that this false statement could have been a bona fide mistake.

This finding is almost certainly wrong. Given the extensive evidence of the president’s knowledge of (and involvement in) the project, it is not credible to believe that the president did not intend misleading the NA when he made this false statement.

After all, her report contains evidence that the president was shown designs for the swimming pool for his approval. How could he then in good faith have told the National Assembly that he and his family had paid for all non-security related construction at Nkandla?

But those who have been criticising the Nkandla Report have not done so because they are worried that the president’s involvement in the scandal was not investigated as vigilantly as it could have been. Instead, they have bizarrely criticised the Report for making any findings of wrongdoing against the president and for requiring him to repay a small part of the amount with which he and his family had unlawfully been enriched.

A good example of this flawed and entirely biased reasoning can be found in an article penned by attorney Krish Naidoo, and published in The New Age.

It is clear from the article that Mr Naidoo did not read the Public Protector’s Report.

He claims that the Public Protector had
invoked section 140 of the Constitution in justifying her finding that the president had not complied with the Executive Members Code of Ethics. A quick word search of the Report confirms that section 140 is not mentioned in the Report at all. In fact, the Public Protector correctly cited section 96 of the Constitution in support of her findings.

It is unclear why Mr Naidoo would claim otherwise.

Although the argument is difficult to follow, Mr Naidoo also seems to claim that the president’s Oath of Office in Schedule 2 of the Constitution does not contain words to the effect that the president must “protect and promote the rights of all people within the republic”. This is a curious claim as a quick perusal of Schedule 2 immediately reveals that these exact words are contained in the Schedule.

Why Mr Naidoo would make such a clearly untrue statement is not clear.

Mr Naidoo also claimed that the Public Protector plagiarised a statement that “Our government is the potent, the omnipresent teacher.” However, on page 4 of her Report this statement – serving as one of the mottos to the Report – is clearly attributed to Justice Louis D Brandeis, US Supreme Court Justice.

Once again it is unclear why this false claim of plagiarism was made at all. Even if Mr Naidoo had only read up to page 4 of the Report, he would have discovered that the claim of plagiarism couldn’t be sustained.

In disputing the Public Protector’s finding that the president was in breach of section 2 of the Executive Members Ethics Code, Mr Naidoo argued that the Code only applied in cases where the president had failed to comply with a constitutional duty and that no such duty to protect state resources can be derived from the Constitution.

This is not true as section 2 of the Code places a wide-ranging set of legal duties on, amongst others, the president to:

“(a) perform their duties and exercise their powers diligently and honestly;

(b) fulfill all the obligations imposed upon them by the Constitution and law; and

(c) act in good faith and in the best interest of good governance, and

(d) act in all respects in a manner that is consistent with the integrity of their office or the government.”

This means, even where no constitutional or other legal duty is imposed on the president to protect state resources, the Code – imposing a broad ethical duty that can be legally enforced – requires him at all times to act in good faith and in the best interest of good government.

Recall that the Executive Members Ethics Act, which gives effect to section 96 of the Constitution, authorises the Public Protector to investigate breaches of the Executive Members Ethics Code. In fact this Act places a legal duty on her to do so.

In other words, the Executive Members Ethics Act, read with the Code, place a legal duty on the president to act ethically to pursue what is in the best interest of good government.

Where the president fails to stop unlawful action which has the effect of financially benefitting him in ways that go far beyond security related upgrades, it can surely not be said that he had acted in good faith in the best interest of good government.

But this is not the end of the matter. Even if – like Mr Naidoo – one wrongly focused only on the sub-section of the Code that requires a constitutional or legal duty to have been breached before there can be any finding of wrongdoing by the president, it is clear that the various sections of the Constitution (read together) impose a constitutional duty on the president to protect state resources.

This is so because section 83(b) of the Constitution states that the president “must uphold, defend and respect the Constitution as the supreme law of the Republic”. Section 96(2)(b) further states that the president – as is the case with other members of Cabinet – may not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Section 195(b) of the Constitution furthermore places a legal duty on the public administration to promote the “[e]fficient, economic and effective use of resources”.

All these sections, read together, clearly place a constitutional duty on the president to prevent a situation where his public duties as president and his private interests collide, as was clearly the case here.

Moreover, where state resources are used improperly to benefit the president and his family in ways that have nothing to do with his security, where he clearly is aware that the resources have been spent in this way and where he fails to halt this, he is clearly in breach of his constitutional obligations as set out above. This is so because he has then not promoted efficient, economic and effective use of resources as he is constitutionally obliged to do.

This is underscored by the fact that the president is the head of the cabinet and the executive authority of the Republic is vested in him. As a cabinet member he is individually and collectively accountable for the actions of the government.

But as head of the executive, ultimate responsibility for the use of state resources rests with the president. In the terminology of the American Presidency, our constitution clearly enforces the principle that: “the buck stops with the president”. To hold otherwise would be to ignore the fact that the executive authority of the Republic vests in him.

While the Public Protector Report is not perfect, the bizarre and sometimes completely untrue claims made with the aim of discrediting the Report are worrying. It suggests either that critics have not read the Report or are unwilling or unable to understand the most basic arguments contained in the Report, or that they are willfully trying to mislead the public by making claims that they know are untrue.

Nkandla – unlawful to the last

The Report of the Public Protector on the use of public funds on lavish construction at President Jacob Zuma’s private home near Nkandla found that there was no legal authority for the spending of R246 million on the Nkandla Project. Despite suggestions to the contrary, neither the applicable Cabinet Policy nor the National Key Points Act were complied with by the various state actors involved in the project.

Although the Public Protector (circumspect to a fault) did not make a conclusive finding on this, her Report suggests that those involved in the Nkandla scandal were at first unconcerned about whether they were legally authorised to spend public funds on the construction at President Zuma’s private home.

Because it was the president’s house, the legal niceties seemed to have been of little or no concern to them. It only seemed to have become a concern when they had to account for their actions and when they realised that the president, unsurprisingly, was not going to take responsibility for the project and was not going to protect them against the fall-out from the scandal.

The Report found that most of those involved in the implementation of the Nkandla Project had no knowledge of the relevant legal provisions applicable to the project. Most of them invoked the Ministerial Handbook (which the Public Protector found was not applicable to the project) as legal authority for the project.

Instead, two other legal documents (had they been complied with) would have authorised some (but not all) of the cost of the construction at President Zuma’s private home.

First, the “Cabinet Policy: Security Measures at the Private Residences of the president, Deputy President and former Presidents and Deputy Presidents”, which was approved on 20 August 2003, allows for the spending of public funds on security measures at private properties that are owned and regularly used by the president.

This Policy provides that at the request of the president or the Presidency, the SAPS, together with the National Intelligence Agency (NIA) (now the State Security Agency) must evaluate the security situation of such a property, based on a threat analysis conducted by the NIA.

The SAPS and the NIA then have to formulate a proposal on appropriate security measures that should be put in place by the State after which the Department of Public Works (DPW) has to prepare cost estimates of implementing these measures.

Thereafter, the SAPS have to advise the Minister of Police on the proposed safety measures, including the cost thereof. Whatever measures are accordingly approved by the Minister of Police shall be communicated to the president for his or her consent. The SAPS then has to submit the measures, as approved by the president to the Minister of Public Works for approval of the structural components.

However, the Public Protector found that none of these requirements were complied with (apart from two security evaluations that were conducted by the SAPS). There was no indication that the evaluations were conducted jointly with NIA (SSA), casting doubt on the intelligence estimates on which the SAPS recommendations for security upgrades were made.

It is unclear why – if the security of the president and indeed the Republic was at stake – the NIA was not at all involved in the evaluation of the security risk faced by President Zuma at his private home.

Regarding the flouting of the Cabinet Policy, the Public Protector further found that:

The Minister of Police probably did not inform the president and requested his consent, as he was required to have done in terms of the Policy, because he was not advised accordingly by the SAPS.

The Public Protector consequently found that the Cabinet Policy was not complied with “and therefore did not constitute legal authority for the expenditure incurred by the DPW in respect of the Nkandla Project”.

The failure to follow the processes outlined in the Cabinet Policy and the deviation from the security measures that were recommended in the security evaluation done by SAPS was thus found to constitute “improper conduct and maladministration”.

Curiously, halfway through the project, on 8 April 2010, the president’s private residence was declared a National Key Point in terms of the National Key Points Act by the Minister of Police.

No finding was made about why the Nkandla residence was declared a National Key Point at this late stage and whether this was done in an attempt to draw a veil of secrecy over the construction project. (Recall that Ministers in the Security Cluster initially refused to answer questions about the project by invoking the National Key Points Act.)

The relevant Declaration Certificate issued by the Minister of Police on 8 April 2010 in terms of the National Key Points Act declaring the president’s private residence at Nkandla a National Key Point informed the president that he was obliged to take measures at his own cost and to the satisfaction of the Minister “to prevent or counter subversion, espionage and sabotage”.

As the Cabinet Policy was not complied with and therefore did not constitute legal authority for the expenditure incurred by the DPW in respect of the Nkandla Project, the declaration of the president’s private residence as a National Key Point on 8 April 2010 therefore had the result that as from that date, he was required to secure his private residence at his own cost. “His failure to do so without reasonable cause would have constituted a criminal offence” in terms of the Key Point Act.

Curiously, the acknowledgement of receipt of this declaration in the Presidency is dated 7 April 2011, exactly a year after it was sent. Whether this delay speaks to administrative chaos inside the Presidency or to a more nefarious motive to delay incurring a formal legal obligation to pay for the cost of security upgrades in terms of the Act, is not answered in the Report.

The Declaration sent by the Minister of Police was in line with Section 3 of the National Key Points Act, which provides that on receipt of the notice, the owner, after consultation with the Minister of Police, has to take steps at his/her own expense and to the satisfaction of the Minister in respect of the security of the place.

It is common cause that the president did not implement any security measures in respect of his private residence, as was required of him in terms of section 3 of this Act. This means that the legal position is therefore that the National Key Points Act was not complied with. The expenditure incurred by the DPW in respect of the Nkandla Project – in as far as the National Key Points Act was applicable – was accordingly irregular.

The Public Protector did not make any finding on whether the president was prima facie guilty of a criminal offence for failing to secure the National Key Point as required by the Act.

It must however be noted that in terms of the Act the Minister of Police could, in terms of section 3A of the National Key Points Act, have taken over the duties of the president to secure his residence as a National Key Point, on his behalf and with his consent. In such a case, the president was liable for the cost of the steps taken, to the extent determined by the minister.

This was never done. As the Public Protector points out:

I requested the Minister of Police on several occasions during the investigation to submit the relevant documents and/or correspondence indicating that the president was informed of the actions taken by the Minister as far as securing his private residence was concerned, that he consented to it, that a decision was taken accordingly and that he was informed of his liability for the costs involved.

No such documents and/or correspondence could be provided and I could find no evidence or indication that the minister invoked the provisions of section 3A of the National Key Points Act at any time.

There was also no explanation of why the Minister of Police’s order, issued with the declaration of President Zuma’s private home as a National Key Point, that the president himself had to pay for security upgrades at Nkandla was ignored.

It may be that after the order was made, the president refused to obey the law and to carry the cost. It may also be that the order was never meant to be taken seriously but was merely issued to provide a smokescreen, creating the impression that the president would pay for all security related upgrades. It may also be that all concerned had forgotten about the order or discovered after it was made that the construction at Nkandla may legally be justified by invoking the Cabinet Policy discussed above.

As I tried to make clear, the Report of the Public Protector does not answer all the questions relating to the unlawful and unauthorized expenditure of R246 million on President Zuma’s private home. Most of the unanswered questions can only be answered by the president or by his closest allies in the Cabinet. If the president and Ministers in the Security Cluster were to take their constitutional obligation to account for their actions seriously, they would attempt to answer these questions.

But they probably never will.

Nkandla Report exposes President Zuma’s personal involvement in the project

President Jacob Zuma has consistently claimed to know little about the taxpayer-funded aspects of the construction at his homestead near Nkandla. As the Public Protector Report on Nkandla makes abundantly clear, the President was intimately involved in (and had extensive knowledge of) the state-sponsored aspects of the construction at his private home. Claims to the contrary are therefore untrue.

The full extent of the Nkandla scandal only becomes apparent when you carefully read all 447 pages of the Public Protector’s Report. Although the Public Protector made damaging findings in her Report about the unconstitutional and unlawful actions of President Jacob Zuma and about the improper benefits derived from the Nkandla construction by President Zuma and his family, it is only when you study the full Report that it becomes apparent to what extent the President was directly involved in the scandal.

One aspect that bears scrutiny is the extensive evidence contained in the Report of President Zuma’s personal involvement in (and knowledge of) the taxpayer-funded aspects of the construction at Nkandla.

In February this year President Jacob Zuma, in an interview with ENCA – partially aimed at distancing himself from the state’s Nkandla construction project — claimed that as president, one did not ask about or debate matters relating to one’s personal security.  “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.”

In an interview in the same week with Independent newspapers he again denied any involvement in the state-sponsored construction at Nkandla, seeking to draw (what now appears to be an artificial) distinction between security upgrades and the building of private houses for him and his family.

The government came very late to introduce security features at the level that they were being introduced before Zuma became the president. It was their confidential things. They never discussed with anyone of the family. So even if you wanted to talk, the family didn’t know. The very government… they are the ones who know better.

As the Public Protector’s Report on the Nkandla scandal makes clear, these statements create the wrong impression. Although it may have been possible to argue that one or two references relating to President Zuma’s involvement in the Nkandla project can be misinterpreted or may be based on lies told by those involved, the many references of President Zuma’s involvement in the project which are contained in the Report provide striking evidence of President Zuma’s intimate involvement in (and knowledge of) the Nkandla project, which was paid for from public funds.

I list some of this evidence contained in the Public Protector’s Report here in order for readers to make up their own minds and to ask themselves to what extent President Zuma had knowledge of (and was involved in) the construction project paid for by taxpayers money.

Paragraph 6.10.5 of the Report contains an extract from a letter from the SAPS Divisional Commissioner: Supply Chain Management (written on 23 October 2009), informing the Director-General of the Department of Public Works:

By instruction of the State President, President Zuma the existing house at Nkandla currently accommodates SAPS members, (sic) must be converted as part of the President’s household. To cater for the needs of the members currently accommodated in the house as referred to above, additional bachelor flats need to be added to the needs assessment previously provided to your department.

Paragraph 6.19.2 indicates that much pressure was applied on various officials involved in the implementation of the Nkandla Project “due to the fact that the President had complained about the slow progress made and the negative impact it had on the finalisation of the construction of his private dwellings”.

In the minutes of a Progress Meeting (quoted in paragraph 6.22.2 of the Report) it was recorded that the architect (who was also Mr Zuma’s private architect for the residential dwellings built at Nkandla) “would discuss the road surface required for the driving of tractors with the principal (the President)”.

The minutes of a meeting held on 19 August 2010 (discussing the landscaping at Nkandla the Report) contains the following telling passage (at paragraph 6.24.2):

After discussions on the progress made in respect of a number of items, Mr Rindel suggested that Mr Makhanya meet with the President, “for signing off of documents.” He indicated during the investigation that both Mr Makhanya and the appointed Landscape Architect were tasked at the meeting to obtain approval of the landscape design from the President…. No further evidence was provided indicating that the President was indeed consulted in this regard.

Mr Zuma was also apparently kept abreast by his cabinet colleagues about progress with the Nkandla Project. As paragraph 6.32.1 of the Report makes clear, on 5 November 2010 then Minister Mahlangu-Nkabinde addressed a letter to President Zuma providing him with a detailed progress report on the cattle culvert; perimeter fence; inner high security fence; Guard House, Tuck Shop, Refuse and electrical rooms; electrical supply; sewer treatment plant; relocation of families; upgrade of water supply; helipad; excavation for clinic; entrance by-pass; services to park homes and the bunker.

In minutes of a further progress meeting held on 16 November 2010 (and reported on in paragraph 6.35.1 of the Report), it is noted that the architect “indicated that he was advised by the President that the households to be relocated ‘is waiting for a family member to arrive before relocation can take place’”. And in the next paragraph it is noted that:

At the progress meeting held on 23 November 2010, it was recorded that the President had requested to be informed about the delay in their relocation from the site.

It appears that the President was also well aware of the construction of a swimming pool at state expense at Nkandla. In paragraph 6.44.3 of the Report (reflecting a progress meeting held o 1 April 2011) it is noted that the then Deputy Minister stated that she would discuss the use of the swimming pool by surrounding schools with the President.

At a subsequent meeting on 11 May 2011 it was reported that the construction of the swimming pool was put on hold “due to uncertainty about the apportionment of costs in respect thereof”. The architect “confirmed that the design of the fire-pool was presented to the President”. In paragraph 6.45.7 of the Report it is again noted that at a meeting on 25 May 2011the architect was requested to discuss the swimming pool with the President.

The swimming pool again came up at a meeting held on 4 July 2011. In paragraph 6.45.14 it is noted that at the meeting it:

was further recorded that the fire-pool submission was with the Bid Committee for approval and that all outstanding matters discussed between the Deputy Minister and the President had been resolved. No details were provided in this regard. This confirms the evidence of Deputy Minister Bogopane-Zulu that the matter of the swimming pool was discussed with the President.

At a meeting held on 11 May 2011 it was recorded (as reported in paragraph 6.45.2 of the Report) “that the implementation of landscaping had not been approved and that the Deputy Minister had discussions with the President in regard thereto”.

The minutes of this meeting noted that the architect “was requested to submit the landscaping changes that were made by the DPW to the President for his approval”. In paragraph 6.45.5 it is confirmed that at a meeting of 25 May the architect confirmed that he had discussed the landscaping with the President. In paragraph 6.45.10, based on minutes from a meeting held on 22 June 2011, it is recorded that the architect:

was to have further discussions with the President on infrastructure requirements. Mr Rindel indicated that the Landscape Architect was in the process of updating the design on what had been agreed with the President.

The Minutes of a meeting held on 28 September 2011 indicate that the architect once again reported that the President was concerned about the progress made on the site and that it might not be available for him to use during December 2011 (see paragraph 6.48.4 of the Report).

The President himself, in an interview with the Public Protector held on 11 August 2013, indicated that he (President Zuma) had requested the building of the kraal “as the number of his cattle had increased. He also stated that he would be willing to refund the state for the cost incurred in this regard” (see paragraph 6.63.2 of the Report).

Witnesses also indicated (according to paragraph 6.65.6 of the Report) that the then Deputy Minister had discussed the matter of the removal of adjacent families with President Zuma.

Evidence also emerged that the President was aware that a clinic would be built at Nkandla. According to the Report, the Deputy Minister discussed the matter with the President to determine whether the President “would be okay that the clinic also serves the community”. Paragraph of the Report then notes that:

Lt Gen Ramlakan was opposed to the idea. However, she discussed it with the President. He stated that he wanted the community to benefit. According to her, President Zuma said: ‘If they give you grief, tell them they must come and talk to me.’

From this evidence it appears that the President was aware of various aspects of the lavish Nkandla construction.

Yet, there is no evidence that he questioned the expenditure (as some officials, to their credit, did) and took no steps to reduce the lavish expenditure on various features of the building programme. Some of these features were security related but had not originally been proposed as necessary to protect the President by the security team. Some of the features related purely to the personal enhancements of the Nkandla homestead.

The preliminary question that every South African may ask is why the President allowed himself and his family improperly to benefit from the Nkandla project. A subsequent question would be whether, given this lack of concern for the spending on public funds for his own benefit, the President can be trusted to head the government.

The Public Protector’s Report: Who’s got the power and what is at stake

The Public Protector is about to release the long awaited Report investigating the alleged “security upgrades” at President Jacob Zuma’s private homestead near Nkandla as well as whether the President was truthful when he claimed to the National Assembly that he and his family had paid for all non-security related upgrades of his home. But what are the powers of the Public Protector and why was the institution created in the first place?

In law there is a long standing principle that no person can be a judge in his or her own cause (in Latin it sounds even sexier: nemo iudex in sua causa). Underlying this principle is the assumption that a person will not be able to make an impartial finding about a specific matter (or will not be perceived by others of being capable of making an impartial finding) if he or she has a direct interest in the outcome of that matter.

This means that when a large company is alleged to have acted improperly by, say, bribing a foreign government in order to receive a tender, an investigation by employees of the accused company will have little credibility. Neither will it be appropriate for a family member of Oscar Pistorius to sit as the trial judge in his murder case as an acquittal of the accused will carry little or no credibility due to the (real or perceived) lack of impartiality of the presiding judge. Only an impartial person or body with no direct interest in the outcome of the matter will be able to reach a credible finding on such matters.

Similarly, when allegations are made that the government misused funds to enrich the head of the government or that the head of the government mislead Parliament when he or she denied that he or she was personally enriched by the misuse of government funds, an investigation by members of the government will not be credible as those government Ministers or officials are in effect employees of the President and therefore will have a direct interest in the outcome of the investigation.

This is why a Report by the security cluster into the Nkandla “security upgrades” will – in legal terms – have far less credibility than any report prepared by an independent institution such as the Public Protector.

If there are any discrepancies between the government report and the report of the Public Protector, it would be difficult to argue that the former should be believed above the latter, given that individuals prepared the former with a direct interest in the outcome of their own investigation.

It is party because of such difficulties with the credibility of internal investigations that the South African Constitution created the office of the Public Protector. Because any investigation by state officials or government Ministers of maladministration or misuse of funds by fellow officials, Ministers or the President would be tainted because of the nemo iudex in sua causa principle, the Constitution created an independent and impartial body to do credible investigations into such matters and – if breaches were to be found – to make recommendations for remedial action to be taken.

Section 181 of the Constitution reminds us that – as is the case with other Chapter 9 institutions – the Public Protector is independent and impartial and must exercise her powers and perform their functions without fear, favour or prejudice.

Other organs of state have a duty to assist and protect the Public Protector to ensure the independence, impartiality, dignity and effectiveness of these institutions. This section of the Constitution also prohibits any person or organ of state from interfering with the functioning of the Public Protector.

Section 9 of the Public Protector Act underscores the impartiality of the Public Protector and indicates that her status is similar to that of a High Court judge.

In terms of this section it is a criminal offense to insult the Public Protector or the Deputy Public Protector. It is also a criminal offense for any person to do anything in connection with an investigation, which, “if the said investigation had been proceedings in a court of law, would have constituted contempt of court”.

Any person convicted of such an offence will be liable to a fine not exceeding R40 000 or to imprisonment for a period not exceeding 12 months or to both such fine and such imprisonment.

These sections do not prohibit anyone from criticizing a specific finding of the Public Protector on sounds factual or legal grounds. Just as we may all criticize a court judgment on the grounds that we disagree with a judge’s interpretation of the facts or application of the legal principles, we are also entitled to criticize a Public Protector report on such grounds.

To use a purely imaginary example, challenging a finding of the Public Protector that a pool constructed at the President’s private home was indeed a swimming pool and not a fire fighting feature (on the basis that several buckets have been placed next to the pool to dip into the water in case of fire) would be perfectly legitimate.

But where an individual politician or member of the public wishes to discredit a report by the Public Protector he or she may not question the impartiality or integrity of the Public Protector and may not allege that the Public Protector made a finding animated by political considerations, corruption or malice as this would constitute a criminal offense in breach of section 9 of the Public Protector Act.

The powers of the Public Protector are far reaching. Section 182 of the Constitution empowers the Public Protector to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action.

The Public Protector Act elaborates on this and makes clear that the Public Protector has wide powers to investigate conduct by organs of state, politicians and other public bodies. She also has wide powers to obtain a warrant to search premises and to seize documents needed for an investigation.

Section 7 of the Act states that the Public Protector may investigate corruption, improper or unlawful enrichment, maladministration in connection with the affairs of government at any level; abuse or unjustifiable exercise of power or unfair, capricious, discourteous or other improper conduct or undue delay by a person performing a public function; or improper or dishonest conduct.

In terms of the Executive Members’ Ethics Act of 1998 the Public Protector is also empowered to investigate breaches of the Executive Ethics Code passed in terms of the Act.

Section 2.3 of the Code of Ethics state that Members of the Executive (which includes the President and any other member of the cabinet) may not wilfully mislead the legislature to which they are accountable; act in a way that is inconsistent with their position; use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; or receive remuneration for any work or service other than for the performance of their functions as members of the Executive.

Once the Public Protector has concluded an investigation she has to draft a report with her findings and any recommendations relating to those findings.

If the Public Protector is of the opinion that the facts disclose the commission of an offence by any person, she must bring the matter to the notice of the prosecuting authority.

She is also empowered to refer a report to the National Assembly if she deems it necessary; or she deems it in the public interest.

Of course, as far as possible breaches of the Executive Members Ethics Code by members of the Cabinet are concerned she is required to submit her report to the President for action.

As the Public Protector pointed out when she previously found President Zuma in breach of the Code, there is a lacuna in the Executive Members Ethics Act, as it does not provide for a situation where the President himself has been found in breach of the Code. Unfortunately this gap in the Act has not been corrected as requested by the Public Protector.

This means that in the event of the Public Protector finding that the President himself is in breach of the Code (and I am not making any assumptions in this regard), the Act requires him to received and act on the Report against himself. Given the absurdity of this situation I would assume that the Public Protector would be entitled in terms of the Public Protector Act to also submit this aspect of any report to the National Assembly for possible action against the President.

It is important to keep these general principles in mind when perusing the Public Protector’s report on the Nkandla security upgrade. Whatever the report may contain – and I have not seen the report and do not in any way wish to pre-empt any of its findings, those of us who comment on the report may do well to keep in mind that when we comment we are not allowed to insult the Public Protector or act in contempt of her office.

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

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.

Water is life, but the struggle for it is deadly

The death of at least three people protesting against the lack of access to water in Mothotlung in the Madibeng municipality, all allegedly due to action by members of the South African Police Service (SAPS), brings into sharp focus the failure of some municipalities to fulfil their constitutional obligations. It also raises the spectre of an out-of-control police force using excessive violence to punish protestors for challenging the authority of the government or the police.

“Water is life,” wrote Justice Kate O’Reagan in the Constitutional Court judgment of Mazibuko and Others v City of Johannesburg and Others. “Without it, nothing organic grows. Human beings need water to drink, to cook, to wash and to grow our food. Without it, we will die. It is not surprising, then, that our Constitution entrenches the right of access to water.”

It may well be that “water is life”, as the Constitutional Court claimed, but the killings in Mothotlung also demonstrate that the struggle for access to water in rural South Africa can itself be deadly.

For the residents of Mothotlung, the Constitutional promise of access to water, contained in section 27 of the Bill of Rights, must ring hollow. In December the inhabitants of Mothotlung were without access to water for almost two weeks. Water again stopped flowing in Mothotlung last Friday with no indication of when the problems would be solved, sparking the most recent protests.

As Merle Dipua Seema, a local resident (who also helpfully provided the correct spelling for Mothotlung) explained to me on Facebook, even when water is available in the area, its quality is of a dubious standard, with devastating consequences for the poor:

The water, when available, may be scientifically potable ,but not according to the greasy rim it leaves in my bath nor toilet. Running a water bottled water bizniz has become a lucrative opportunity. The need to boil tap water for those that can’t afford further strains the household budget.

It goes without saying that this is not the state of affairs promised by the Constitution. Section 27 of the Constitution requires the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right of access to water.

To give meaningful content to this constitutional obligation, Parliament has enacted the Water Services Act, which regulates the right of access to water and sets out the exact obligations placed on the state regarding the provision of access to clean water. Section 3 of the Act confirms that every municipality has a duty to take reasonable measures to realise the right to a “basic water supply”.

“Basic water supply” is defined in the Act as “the prescribed minimum standard of water supply services necessary for the reliable supply of a sufficient quantity and quality of water to households, including informal households, to support life and personal hygiene.”

In terms of section 9 of the Act the Minister can prescribe a compulsory national minimum standard of water supply that must be provided to residents by all municipalities. The regulations issued by the Minister determine that every municipality is legally required to provide a:

minimum quantity of potable water of 25 litres per person per day or six kilolitres per household per month at a minimum flow rate of not less than 10 litres per minute; within 200 metres of a household; and with an effectiveness such that no consumer is without a supply for more than seven full days in any year.

It is clear that the Madibeng municipality has consistently failed to meet its basic constitutional and legislative obligations as set out above. The municipality is therefore flouting the Constitution and the law and seems either incapable or unwilling to comply with it.

As the Daily Maverick reported earlier this week, it is perhaps not surprising that the Madibeng municipality is unable to provide some of its citizens with regular adequate quality supply of running water.

In March 2010, the Madibeng municipality was placed under administration after an audit exposed financial mismanagement to the tune of R100 million. In June 2011, newspapers exposed the fact that the new executive mayor was renting a BMW at the cost of R2,025 per day. In April last year, it was reported that R1 billion of assets, supposedly owned by the municipality, were missing.

The case highlights the limits of the law in situations where the political process has broken down. People living in Mothotlung do not have the funds to finance court action to have the abuse of their rights halted. (This is unlike the – mostly middle class – Gauteng residents who opposed paying e-tolls, who funded several failed court bids to stop the implementation of e-tolls.)

What are the residents of Mothotlung to do to force the municipality to comply with its legal obligations? Yes, they could try to vote out the Madibeng councillors at the next local government election, but given the organisational muscle and financial resources available to the governing party it is not clear that they would actually succeed in doing so. In any case, that election is still several years away.

They could theoretically also place pressure on ward councillors to take up their case. But the ward councillors are beholden to the governing party – not the voters – as they were nominated as ward councillors by the leadership of the governing party and depend on the patronage of the party leadership to remain in office.

And – this is just a hunch – but I suspect that a mayor of a relatively small municipality who splurged more than R2,000 of taxpayers’ money a day on renting a BMW is probably not going to respond promptly to a petition handed to him at a genteel and peaceful picket.

The theory of participatory democracy breaks down when elected officials – beholden to financial benefactors or party bosses instead of their voters – do not feel pressured to act in an open and transparent manner or to account to those whom they were elected to serve. When the elected officials are too corrupt, too heartless or too incompetent to provide residents with the most basic life-saving resources and when they utterly fail to respond to complaints by those who voted for them, it is unclear what democratic avenues are open to residents to secure access to life-saving water.

Predictably the residents of Mothotlung resorted to protest action in the wake of yet another water shutdown and, just as predictably, the protest action turned violent. The ensuing violence and the resultant police brutality finally grabbed the attention of the media and therefore also the politicians from the national government anxious about an upcoming election.

It was during these protests that the police shot and killed two protestors with live ammunition and a third protestor mysteriously fell out of a police vehicle (providing uncomfortable echoes of the Apartheid years, when detainees often “slipped on soap” or “jumped” to their deaths out of the 18th story of John Vorster Square).

Remarkably, on Twitter and other social media platforms, some commentators suggested that because the protest was not entirely peaceful, the police was perfectly justified in killing the protestors. This view is not only barbaric; it also flies in the face of the Constitution and the law.

Of course, the SAPS is legally required to protect property and to maintain or restore calm in a community. However, police officers are constitutionally and legally required to do so by using the minimum amount of force. Police officers are very seldom justified in killing anyone and are not allowed to use live ammunition on protestors unless their lives are under imminent threat.

This is so, not only because the right of everyone to life and bodily integrity is protected in the Constitution, but also because police officers are not magistrates or judges and hence do not have the power to determine the criminal guilt of protestors or to punish protestors for allegedly taking part in illegal activities. When police officers use maximum force against unarmed protestors where large scale damage to property is not threatened and subsequently maim or kill some of the protestors, they are no more than vigilantes who have unlawfully arrogated to themselves the right to judge and punish fellow citizens.

When police officers use maximum force to kill protestors who do not threaten their lives, they are doing no less than meting out the death penalty to citizens who have not been found guilty of any crime. It seems that some members of the police force, and some of their supporters who cheer on their brutality, yearn to bring back the death penalty which was found to be unconstitutional in 1995.

It’s a shocking turn of events. Parliament should, of course, call the Police Commissioner, the minister of police and ultimately the president who heads the government under whose watch these extra-judicial killings are occurring, to account. But because the majority of members in Parliament are beholden for their jobs to the leadership of the governing party (including the president and the police minister), this is not going to happen.

Love me tender: Constitutional Court gives guidance on nullifying tenders

As the Nkandla scandal – and the various attempts to cover it up, twist the facts and discredit the messengers – demonstrates, public money (in other words, our tax money supposed to be used for the betterment of all South Africans) is often used and abused to enrich the well connected and the powerful. However, it is important to remember that it is not only politicians who benefit from this form of endemic corruption. Private companies play a large role in corrupting our system – often through the manipulation of tenders. A recent Constitutional Court judgment confirmed the importance of adhering to fair and equitable tender processes to avoid corruption or even the perception of corruption.

When the South African Social Security Agency (SASSA) decided to improve the efficiency and security of its system to pay social grants to more than 15 million South Africans who desperately need these grants, it issued a tender worth billions of Rand to select a service provider. Ultimately, it awarded the tender to Cash Paymaster Services. An unsuccessful tenderer, AllPay Consolidated Investment Holdings, eventually challenged the validity of the awarding of this tender all the way to the Constitutional Court.

In Allpay Consolidated Investment Holdings (Pty) Ltd and Others v Chief Executive Officer of the South African Social Security Agency and Others the Constitutional Court (in unanimous judgment authored by justice Froneman) declared the awarding of the tender invalid. The Court did not find that any corruption was involved in the awarding of the tender. However, it did find that the awarding of the tender was invalid and has left open the possibility of nullifying Cash Paymaster’s contract to distribute social grants.

The case is important for two related reasons.

First, the Constitutional Court rejected the Supreme Court of Appeal’s (SCA’s) more permissive approach to reviewing the awarding of tenders. The SCA had declined to interfere with the awarding of the tender, holding that even if proven irregularities exist, the inevitability of a certain outcome is a factor that should be considered in determining the validity of administrative action. If the Constitutional Court had not rejected this approach of the SCA, it would have made it far more difficult for unsuccessful tender applicants to challenge the validity of the awarding of tenders.

According to the Constitutional Court the suggestion that “inconsequential irregularities” in a tender process are irrelevant when reviewing the awarding of a tender “conflates the test for irregularities and their import”. This would be problematic as it would minimise the role that procedural requirements play in ensuring equal and fair treatment of all bidders. It would also overlook the fact that the purpose of a fair process is to ensure the best outcome; the two cannot be severed.  Moreover, as the Court pointed out:

deviations from fair process may themselves all too often be symptoms of corruption or malfeasance in the process. In other words, an unfair process may betoken a deliberately skewed process. Hence insistence on compliance with process formalities has a three-fold purpose: (a) it ensures fairness to participants in the bid process; (b) it enhances the likelihood of efficiency and optimality in the outcome; and (c) it serves as a guardian against a process skewed by corrupt influences.

The second important principle confirmed by the Constitutional Court in this case is that the awarding of tenders must normally be reviewed by using the provisions of the Promotion of Administrative Justice Act (PAJA). It is true the starting point for an evaluation of the proper approach to an assessment of the constitutional validity of outcomes under the state procurement process is section 217 of the Constitution. After all section 217 lays down the requirement that the tendering system must be fair, equitable, transparent, competitive and cost-effective.

But the legislative framework for procurement policy under section 217 of the Constitution (and the appropriate legislation) does not seek to give exclusive content to that section, nor does it grant jurisdictional competence to decide matters under it to a court. The framework provided by section 217 provides the context within which judicial review of state procurement decisions under PAJA review grounds must be assessed.

The requirements of a constitutionally fair, equitable, transparent, competitive and cost-effective procurement system will thus inform, enrich and give particular content to the applicable grounds of review under PAJA in a given case.

This means that PAJA will usually be the first port of call but that PAJA will have to be interpreted in the light of the various provisions in the Constitution dealing with procurement and the administration of the state as well as the applicable legislation.

In this case there were serious irregularities with the tender process, which rendered it invalid. First, when making the initial assessment about the tender bids, the tender committee failed to ask probing questions about the Black Economic Empowerment (BEE) aspects of the bids.

The Constitutional Court confirmed for the umpteenth time that economic redress for previously disadvantaged people (which focuses in our law on disadvantage because of racism, sexism and discrimination on the basis of disability) “lies at the heart of our constitutional and legislative procurement framework”.  (This reminds us again that those who oppose fundamental race-based economic empowerment measures, oppose fundamental aspects of the Constitution and can rightly be termed anti-constitutionalists.) What is important is that when considering the BEE credentials of a company and its bid, the tender committee had to look past the possible BEE window dressing that the company put in place to pull the wool over the eyes of the members of the bid committee.

This is so, amongst other reasons, because the purpose of the Constitution – read with the relevant legislation – is not merely to afford inclusion or redistribution, but to involve black people in management and control of businesses, and to facilitate skills development. As the Court pointed out, there are grave dangers in focusing on form and not on the substance of BEE:

Substantive empowerment, not mere formal compliance, is what matters. It makes a mockery of true empowerment if two opposite ends of the spectrum are allowed to be passed off as compliance with the substantive demands of empowerment. The one is a misrepresentation that historically disadvantaged people are in control and exercising managerial power even when that is not the case.  That amounts to exploitation. The other is to misrepresent that people who hold political power necessarily also possess managerial and business skills. Neither situation advances the kind of economic empowerment that the Procurement and Empowerment Acts envisage. Both employ charades.

SASSA’s failure to ensure that the claimed empowerment credentials of those who tendered for this huge project were objectively confirmed when it looked into who should be on the shortlist for the awarding of this tender, was therefore fatally defective in terms of PAJA as it amounted to non-compliance with a mandatory and material condition of the tender. This also amounted to a failure to consider a relevant consideration for awarding the tender as required by PAJA.

The tender was also invalidated because of the vagueness of the tender specifications. Although vagueness is not specifically mentioned in PAJA as a ground for review, it falls within the ambit of administrative action that is otherwise “unconstitutional or unlawful”.  As the Constitutional Court has held in the past, the doctrine of vagueness is based on the rule of law which is a foundational value of the South African Constitution.

The scope of the tender was vague because SASSA did not at first specify that the successful tenderer would not only have to provide biometric verification of the identity of grant beneficiaries when they registered, but also every time they are paid a grant.

Given the confusion over the requirements of the tender on the part of both bidders and members of the Bid Evaluation Committee, the notice given by the tender documents in this case was inadequate.  It did not specify with sufficient clarity what was required of bidders. As the Constitutional Court pointed out, the “purpose of a tender is not to reward bidders who are clever enough to decipher unclear directions”.  It is in fact to elicit the best solution through a process that is fair, equitable, transparent, cost-effective and competitive.

This did not happen in the case under discussion.

Because difficult factual and legal issues arose from the invalidation of the tender, and because the information before the Court was outdated and inadequate, the Court felt that it was not be appropriate to make a decision on a just and equitable remedy in the absence of further information and argument on these issues. The Court therefore ordered the parties to tender further submissions with a view to holding another hearing on the issue of a just and equitable remedy. This will happen early next year.

Nkandla scandal: attacking Public Protector must be seen as admission of wrongdoing

In the weeks and months to come, irrelevant technical arguments, procedural legal points, false comparisons, red herrings, shameless lies, intelligence driven smears and innuendo will almost certainly all be deployed to try and discredit the Public Protector, her office and – most importantly – her report on the use of more than R200 million of taxpayers money to “enhance” the private home of President Jacob Zuma at Nkandla. When you cannot justify something, your only option is to either admit to wrongdoing or to attack the messenger, which is the same thing as admitting to wrongdoing. This means that all reasonable South Africans must view these attacks – when they come, as they already are – as no more than an admission of guilt on the part of those who orchestrate and sanction them.

Certain incontrovertible facts about the Nkandla scandal are very difficult to ignore or explain. These facts stand independent of the content of the alleged leaked report of the Public Protector on Nkandla.

It is beyond controversy that the people of South Africa were forced to donate more than R200 million of their money to “enhance” President Jacob Zuma’s private homestead and surrounding area, despite the fact that he already has access to no less than three well-protected and secure official residences (whose considerable upkeep South Africans already fund). In a universe in which morals and ethics are known terms, this can only be viewed as a scandalous misuse of public funds for private gain.

It is an incontrovertible fact that a President and a government who respected and cared for the people of South Africa and was eager to manage their money carefully in order to do the most good with this money would not have spent more than R200 million of taxpayers money on the private home of a person who – in less than 6 years – will again become a private citizen. Such a person would have stayed at his official residences where security was tight in order to save taxpayers money for the use of the betterment of the people of South Africa – many of whom are desperately poor and in need of assistance from the state.

It is an incontrovertible fact that the President’s private architect spearheaded this project (as the President himself admitted this in Parliament) and that some of the tax-payer funded “enhancements” at his Nkandla home (clearly visible on photographs of Nkandla that we were briefly told were illegal to publish), such as a swimming pool (renamed a “fire pool” with a cynicism that would have made the rulers in 1984 blush), a cattle kraal, a chicken coop, a visitor’s centre, an amphitheatre and houses for relatives, could not possibly be related to the security of the President.

It is an incontrovertible fact that it would be impossible for any owner of a property who is of sound mind and who regularly visited and stayed at that property while more than R200 million of construction work was carried out at that property, not to be aware of the scale of the construction (or, that the construction included the building of a swimming pool and other non-security related “enhancements” which would have made the presenters of Top Billing swoon with fake enthusiasm).

It is an incontrovertible fact that R200 million of public funds could have been used to build houses, to provide sanitation, to pay teacher’s or nurses salaries, to fix potholes, to fund school feeding schemes, to train police officers, to provide clean water, or to provide an array of other goods and services to the people of South Africa who need them.

It is also an incontrovertible fact that after the Public Protector finalised a provisional report she shared it with Ministers within the security cluster, providing them with a secret pass word. The Ministers then shared this report with a several of their officials. This means that it is at least as likely that the provisional report on Nkandla was leaked by a Minister or an official in the security cluster (and we do not know whether these Ministers shared the report with their boss – number 1 or his lawyers) than it is that the report was leaked by somebody in the Public Protector’s office.

As the Public Protector remarked: “We work with sensitive information for months without any leakages. It cannot be a coincidence that the so-called leaks only occur after the reports leave our offices into the hands of parties.”  It is thus an incontrovertible truth that the ANC Youth League, the SACP (and now the ANC) who are accusing the Public Protector of leaking the report have not a shred of evidence to back up this accusation and that they are in fact smearing her to turn attention away from the unpalatable facts around the misuse of more than R200 million of public funds for the private benefit of the President.

It is also an incontrovertible fact that the ANC Youth League, the SACP and ANC leaders in the past argued (when the President was accused of taking bribes and was facing criminal charges before they were mysteriously and incomprehensibly dropped) that a person should be considered innocent until proven guilty and that no one should ever accuse a person of wrongdoing when they have no evidence to base that accusation on.

It is also an incontrovertible fact that the last time the President was in serious trouble with the law and he was facing corruption charges and the Constitutional Court decided to uphold the Constitution, thus posing a threat to the President’s long term freedom and his political career, those who protect the President attacked the credibility of the Constitutional Court and called some of its judges “counter-revolutionary” and asked whether their powers should not be curtailed. There is therefore a pattern of failing to deal with credible accusations against the President and, instead, of doing everything to discredit those who engage with the incriminating facts in a logical and rational manner.

What we do not know (and, at this stage, we cannot know now) is what exactly the final report of the Public Protector’s Report on Nkandla will say. For example, if it is correct that the provisional report found that the President lied to Parliament in breach of the Executive Members Ethics Act, by saying all the non-security related “enhancements” were paid for by President Zuma and his family, President Zuma and his lawyers may convince the Public Protector (through legal arguments and other less legally tenable pressures) that he was only speaking of his family’s “homes” and not of the swimming pool, the amphitheatre or the other enhancements. They may use the Bill Clinton type: “it depends what the definition of ‘is’ is” defence to argue that, although misleading, the President did not actually, really and blatantly lied to Parliament but only misled Parliament.

Or they can argue that the state paid for these “enhancements” but that the President always had the intention of asking his Gupta friends to repay the state and that technically he did not intend to lie.

But, given the known facts, it is difficult to see how – ethically and politically – this should be of much relevance. Regardless of what the final report of the Public Protector finds, all of us (including all the Ministers in President Zuma’s cabinet) know in our hearts that the incontrovertible facts as set out above reveal a scandal of immense proportions and that no person with a conscience can actually justify this spending of public funds on the private house of a politician, nor the attempts by the security cluster ministers to use “national security” to try and suppress and censor the Public Protector’s report on Nkandla.

It is for this reason that I won’t be surprised if the President and his lawyers invoke section 7(9)(a) of the Public Protector Act (and perhaps will also use the intelligence services) to put pressure on the Public Protector to water down any adverse findings she might have made against the President and to try and stall the publication of the report for as long as possible – at least until henchmen have managed thoroughly to discredit the Public Protector, her office and the Nkandla report in the eyes of some gullible voters.

This section states that:

If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.

Of course the section does not say that this must be done only after a provisional report has been finalized. If the President, through his lawyers, already had an opportunity to comment on the evidence of wrongdoing allegedly found against him, then the section would already have been complied with. Neither does it say that the legality or even legitimacy of the report will be compromised if some aspects of a draft report leaks to the media. The alleged leaking of the report therefore has very little effect on the legal force of any final report that may be published.

But it will not be surprising if this section is used as the basis for drawn out litigation to try and distract the public from the incontrovertible facts and to paint President Zuma as the innocent victim of a conspiracy or a plot by his enemies or (my favourite!) foreign agents and dark forces. Richard Mdluli you are needed! Before long we might be told that it is the media and the Public Protector who had decided to build that “fire pool” at Nkandla and that they are the one’s who wrote President Zuma’s remarks to Parliament in which he had denied that any public funds were used for non-security related enhancements.

The attacks on the Public Protector have already started, probably in contravention of section 9 of the Public Protector Act. This section states that:

(1) No person shall: (a) insult the Public Protector or the Deputy Public Protector; (b) in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.

The SACP has already suggested that this section should be amended because, one assumes, the only way in which one can minimize the potential damage of adverse findings against your boss and benefactor (when it is impossible to justify the misuse of funds for the benefit of your boss) is by discrediting the person or body who made those findings. And how can one discredit that person or body if one cannot insult her and the office she holds?

In the weeks and months to come every member of President Zuma’s cabinet should be asked at every opportunity whether – regardless of what the final report of the Public Protector may contain – they personally find the spending of R200 million of public funds on the “enhancements” of a private home morally acceptable (given that the home owner has access to no less than three official residences), whether they truly believe that the President knew nothing about this construction at his own house, whether they support the attempts to undermine the credibility of the Public Protector and her office and whether they plan to resign as cabinet Ministers out of protest and if not, how they are managing to live with their consciences – if any.

What President Zuma told Parliament about the Nkandla “enhancements”

Today the Mail & Guardian published details of what it claims is the provisional Report of the Public Protector on the spending of more than R200 million of public funds on President Jacob Zuma’s private home at Nkandla. One of the most shocking and scandalous aspects of this report is that the Public Protectors draft report allegedly found that President Zuma lied to Parliament (and hence to the nation) about the use of public funds for his personal enrichment.

The newspaper claims that the provisional report finds that President Jacob Zuma has derived “substantial” personal benefit from works that exceeded security needs at his Nkandla homestead and must repay the state, public protector Thuli Madonsela has provisionally found: a swimming pool, visitors’ centre, amphitheatre, cattle kraal, marquee area, extensive paving and new houses for relocated relatives were all improperly included in the security upgrade at “enormous cost” to the taxpayer, Madonsela is alleged to have found.

Here is the original speech made by President Zuma in the National Assembly in which he claimed the state only paid for security enhancements at Nkandla.