Constitutional Hill

Nkandla: irrational state-sanctioned corruption

The unfolding scandal about the use of more than R205 million of public funds to upgrade President Jacob Zuma’s private homestead serves as a perfect metaphor for what is wrong with the Zuma government, led by an former criminal accused in a fraud and corruption case. The bizarre secrecy and dissembling, the appeal to national security, the self-enrichment and the misappropriation of funds are the hallmarks of Zuma’s presidency. And as often have been the case in recent years, the judiciary may be the only body who is capable of providing an effective avenue for challenging the abuse of public funds in the Nkandla affair.

As I have argued before, it is generally not desirable for the judiciary to get involved in party political squabbles. Nor is it generally a good idea to ask the judiciary to overturn unwise decisions of the government or to try and stop the selfish and degenerate behaviour of politicians. But our courts have a constitutional duty to uphold and enforce the Constitution. When the venality of politicians become so egregious that it threatens the democracy itself, or poses a serious risk to the Rule of Law, the courts – acting as guardians of the constitutional democracy – may have no other option but to intervene when asked to do so.

There are at least two ways in which the courts could intervene to stop the continued looting of public funds. All we need is a man or woman with deep pockets to fund these challenges. Maybe one of the staunch ANC members, feeling guilty about being silent in the face of such abuse of power, could be persuaded to help. I would gladly donate my time and whatever skills I have.

First, if requested to do so, the Constitutional Court will almost certainly declare the apartheid-era National Key Points Act unconstitutional. The Act empowers the relevant Minister to declare any “place or area” a National Key Point if it “is so important that its loss, damage, disruption or immobilization may prejudice the Republic or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. The Act does not require the Minister to inform the public about which places or areas have been declared National Key Points and Police Minister Nathi Mthethwa has refused to list all national key points “for security” reasons. National Key Points are so secret that we are not even allowed to know where they are.

Section 10 of the Act prohibits any person from obstructing the owner of a Key Point from securing the National Key Point. (Incidentally, the owner of the National Key Point is supposed to secure that place or area “at his own expense”.) The Act also prohibits any person from providing any information “relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so”. If you breach this law, you face a prison sentence of up to three years.

The National Key Points Act therefore creates secret crimes and turns us all into potential criminals. In this Kafkaesque world, the law prohibits us from revealing security measures about a National Key Point, while also making it impossible for us to find out which places or areas have been declared National Key Points. For all we know, all open air toilets in Cape Town and elsewhere and all shopping malls in South Africa have been declared National Key Points and anyone who tells her friend where the security guard looking after the toilets or the mall is sitting is facing a three year prison sentence.

The Rule of Law is a founding value in the Constitution and in Dawood v Minister of Home Affairs the Constitutional Court confirmed that this value includes the requirement that legal rules had to be conveyed in a clear and accessible manner. This requirement that legal rules must be clear and accessible is more pressing in criminal cases, in order to avoid a situation where you could be deprived of your freedom and sent to jail on the basis of a secret law that you could not possibly have known about.

Second, the decision to allocate more than R200 million of public funds to upgrade the private house of a politician, may well be challenged on the basis that it is irrational. President Zuma has three different official residences that are well-protected and secure. If he feels scared or paranoid he can always go and stay in one of these three official residences where one assumes security is tight. Moreover, like every other President in our democracy, he will retire, at the most, after two terms in office. He will then live in a compound valued at more than R200 million. Shortly before he became President, the same property was valued at just over R400 000. In other words, it is as if President Zuma instructed the Treasury to write him a R200 million personal cheque, which officials then spent on renovating his house. Even Schabir Shaik did not have that kind of money to bribe President Zuma with. In short, the spending of R200 million of public funds at Nkandla is a form of state-sanctioned (and defended) personal corruption.

The Constitutional Court has said that the Rule of Law requires the President and all other public officials to exercise their powers in a rational manner. In Prinsloo v van der Linde the Court explained that public officials should not act:

in an arbitrary manner or manifest “naked preferences” that serve no legitimate governmental purpose, for that would be inconsistent with the rule of law and the fundamental premises of the constitutional state….. This has been said to promote the need for governmental action to relate to a defensible vision of the public good…

If the official action is not taken to pursue a legitimate government purpose, or if there is no rational relationship between the legitimate government purpose and the official action, the action is in conflict with the Rule of Law and therefore unconstitutional and invalid.

On Sunday Publics Works Minister Thulas Nxesi claimed that “only” R70 million of the more than R200 million was used for security related upgrades at Nkandla. This presumably includes the cost of the underground bunker as well as the cost of bullet proof windows. More than R135 million was used for “operational needs for state departments”, which includes the cost for a private clinic and other “accommodation”. Money was also used for a private lift, a tuck shop, an Astro Turf soccer field, two guard houses, refuse and electrical rooms, electrical supply, sewer treatment plant, relocation of families forcibly removed from their homes to make way for the Nkandla expansion, the upgrade of water supplies, an entrance by-pass, an entrance road and, last but not the least, a cattle culvert.

Upgrading security arrangements to protect the President would almost certainly be considered to be a legitimate government purpose. The government therefore pursued a legitimate government purpose when it authorised the spending of over R70 million at Nkandla. Whether there was a rational relationship between the legitimate government purpose and the astronomical spending of R70 million is another matter. Can one say that there is a rational connection between the aim of protecting the President by building a bunker under his private home, given the fact that we are not at war with any country and given the fact that his official residences must include the kinds of facilities now replicated at his private house – all at state expense? I doubt it, but I am open to be persuaded otherwise.

But it is the spending of R130 million on “operational expenses” that is never going to fly and must clearly be irrational. These expenses had the sole aim of enriching Zuma and providing him with a huge compound of buildings and other facilities (including a clinic, water plant, sewer treatment plant and a tuck shop) – all paid for by the state. This kind of spending cannot possibly be said to “relate to a defensible vision of the public good.” Is it a defensible vision of the public good that the President be treated differently from every other citizen? How does one defend this spending as demonstrating an acceptable vision of the public good in a democracy when the money was used to doll up the private home of the President by adding a tuck shop, an Astro Turf and a cattle culvert; by adding a private lift and electrical rooms; by building a private sewer treatment plant? (I recall that in some municipalities our people still use the bucket system – and unlike the President they do not earn R2.4 million Rand with which they can build their own toilets.)

The answer can only be that there was no legitimate reason to use state funds to effect this improvements of President Zuma’s compound. If President Zuma wants a private lift or a sewer plant at his private home, he is required to pay for it himself – like every other private citizen in South Africa. Being President does not allow him to dip into public funds to enhance his com fort at his private home. He is not our king or queen and neither is he President-For-Life. President Zuma is merely another politician on the take. His term of office will eventually come to an end, after which he is entitled to a state pension. Unless he is impeached for a serious violation of the Constitution or the law or serious misconduct – in which case he will receive none of the benefits that usually accrue to a former President.

There is no legitimate purpose for spending R130 million of public funds on Jacob Zuma’s private home to enhance his comfort at his private home. The spending is therefore irrational and unlawful and a court could declare it so and order the President and/or the Minister to repay the R130 million to the state.

  • Jeffman

    This is what happens when the fox is put in charge of the chicken coop…

  • Cathy Powell

    Thank you, Pierre. The casual, blatant nature of this corruption is one of the most unsettling signs of where our government and country is going. I also volunteer my time should some person have the money to fund a court challenge.

  • Drx

    Our best hope in SA is for a Nixon-Ford pardon deal. Zuma walks away with his compound, and whatever else he managed to get his hands on over the years without any fear of retribution, and SA makes a clean break. After years of managing to vanquish his foes, and to escape justice, with each ordeal increasing his political strength, it would be a foolhardy soul indeed, who took him on.

  • Benson

    We need these sorts of perspectives..*

  • Chris (Not the right wing guy)

    “He is not our king or queen and neither is he President-For-Life. President Zuma is merely another politician on the take. His term of office will eventually come to an end, after which he is entitled to a state pension.”

    I agree with most of the post, but want to add something to the paragraph quoted above: I’m pretty sure there will be an attempt to get a constitutional amendment and then an attempt at a third term. After that President-For-Life Zuma will be far fetched.

  • malcolm

    I don’t know. Its all so depressing and makes me think the worst. Why do I think the last obstacle in Zuma’s master plan to be eliminated will be the judiciary, or if not eliminate it, disempower it in his march to become supreme potentate holding court in Nkandla.

    Why do I think that Zuma and his imperious henchmen don’t give a damn about the constitution or parliamentary democracy.

    Its because if I look for a definition of a Kleptocracy the Zuma’s ANC stares me in the face.


  • Blue Ozone

    Post 1001 on the same topic.

    Doesn’t help to argue rationally with propaganda. Best is just to restate the facts over and over again.

    “Nxesi now claims that the government allegedly spent a further R135 million on non-security related construction at Nkandla, but none of it was allegedly used to build the private residence of President Zuma or on any of the houses that belongs to him. How can this be true?”

    I have even gone and found the breakdown for you that is openly available on the Internet.

    These principles, among others, resulted in the following measures to satisfy the requirements of the security forces.

    1. The reinforcing of barriers

    2. The erection of high security fences

    3. The provision of local fire fighting capability for the helipad (not security related)

    4. The creation of safe havens as with other sites all over the country

    5. The relocation of pylons to allow a clear access flight path (not security related)

    6. Roads constructions in and around the precincts (not security related)

    7. The building of a security compound to house security and support staff

    8. Improving and rendering the water safe (not security related)

    9. The provision of waterborne sewage systems (not security related)

    10. The provision of an air crew pavilion (not security related)

    11. The provision of a clinic in a lower security area to allow for both dignitary care and later conversion to part of the community health service in the area (not security related)

    12. Security guard houses and stations

    13. Security systems for all areas

    14. The provisions of interim accommodation arrangements with Park homes etc. while the construction was on-going (not security related)

    15. Earthworks and barriers erection. (not security related)

  • Mikhail Dworkin Fassbinder

    “Is it a defensible vision of the public good that the President be treated differently from every other citizen?”

    No, of course not. This is what the National Rifle Association pointed out in its recent devastating post-Sandy Hook TV ad. The spot noted that, while schools unguarded by armed men were deemed good enough for ordinary citizens, the President’s daughters had the benefit of heavily armed Secret Service guards at their fancy private school in D.C.! Brett, WDYS?

  • Villiers

    “But our courts have a constitutional duty to uphold and enforce the Constitution.”

    All three arms of the government have a constitutional duty to uphold and enforce the Constitution, but sadly it seems that it’s only the judicial branch that is performing this duty.

  • Lisbeth

    “All we need is a man or woman with deep pockets to fund these challenges”

    Deep pockets? How deep? Are we taking millions of rands? Any citizen, rich or poor, should be able to challenge “the continued looting of public funds”, without bankrupting themselves. These are your and my taxes we’re talking about!

    Surely there must be an easier way?

  • Maggs Naidu – Yikes, another seven years! (

    “Police Minister Nathi Mthethwa has refused to list all national key points “for security” reasons.”

    Isn’t it the Minister of Defence who is responsible for NKPs?

    Anyway – under the Act, Zuma is liable for expenses, would he still be liable if the Act is declared unconstitutional?

  • Gwebecimele

    So our courts are unable to see beyond their feet and they require deep pockets to do so.

    How do we fly this kite when we finance the likes of King Zwe at R55 million pa or cabinet minister or Chief justice staying in R30 million house. Once you let the sardines out then you have to deal with the sharks.

  • Maggs Naidu – Yikes, another seven years! (

    January 29, 2013 at 20:45 pm


    If it’s not the crooked politicians, it’s the greedy lawyers.

    We’re between a rock and a hard place.

  • mike venter

    Come on Pierre you are the go-to-man for this. What in all likely hood is going happen?

    Will this man walk away like he did with the arms deal and Shaik or will SA see justice done? If he gets away with this, SA is seriously fu()ed! The rest of his help, yes the ones that protect him and others will see how easy it is to shaft us for money and then shooting season is open.

    Please tell us what do you think will be the outcome of this?

    If our courts can not help who the hell can stop this then?

  • Blue Ozone

    So to really understand Pierre De Vos, the Oppenheimer’s, the Menells and the UCT/Claude Leon Foundation: its is a little like the Broederbond but they have no other allegiance other than maintaining capitalist domination of the African people:

    “Like Mandela and many others, he grew disillusioned with the intellectual, almost antipolitical thrust of black consciousness and gravitated toward more of a pragmatic outlook. He took a clerking job with a small-time lawyer and looked for an outlet for his political talents.

    At that time South Africa was governed by Afrikaner nationalists, but much of industry — especially the big mining houses, which pretty much built modern South Africa — was run by dynasties, like the Oppenheimers and the Menells, that favored more liberal treatment of the black majority. They argued that prosperity required a stable, better-trained black work force and a black middle class of consumers. They hoped, too, that a policy of more humane engagement would undermine the campaigns of economic sanctions and disinvestment brewing in Europe and the United States. Years later many of these same industrialists foresaw the twilight of white rule and helped grease the negotiations that ended apartheid, in the hope of retaining influence after liberation. But for now it was about offering blacks a little share of the good life, not actual power.

    One outgrowth of these progressive urges was the Urban Foundation, started by mining titans like the Menell family, owners of the Anglovaal gold house. The foundation invited influential or promising blacks to join in worthy projects for the betterment of African communities. And that is how Ramaphosa acquired an important patron. Clive Menell, the head of the gold-mining conglomerate, recruited him into the Urban Foundation, helped him complete the legal studies interrupted by prison and gave him a measure of credibility with the people who held the real power in South Africa. Clive’s son and heir, Rick Menell, became and remains a close friend.

    The Urban Foundation taught him useful skills for dealing with powerful people and gave him an appreciation of business that was not universal in the anti-apartheid alliance; but helping white do-gooders embellish the status quo did not hold his interest for long. He took a job as legal counsel to a labor group and soon was embarked on an effort to organize the country’s biggest and most impenetrable black work force: the miners.”

  • Gwebecimele


    Ask OUTA, these high flyers can blow holes in your pockets. Lawyers are holding us hostage under this democracy while busy advising Ministers to appeal unwinnable cases.

  • Gwebecimele

    Irrational South Africans!!!
    May the official who is responsible for this burn in hell.

  • Blue Ozone

    January 29, 2013 at 23:11 pm

    “May the official who is responsible for this burn in hell.”

    I guess we are a democratic country now.

    The ANC are elected by the people (again, and again, and again, and again, and again, and again, and … until Jesus comes) therefore it is the people who must burn in hell!

  • Benson


  • Mike

    @PDV – the E Toll saga in Gauteng is also irrational state sanctioned corruption because the collection system is linked to the ANC.

  • Blue Ozone

    So. If we want to know exactly who are these “Whites” who allegedly still “control all the wealth” – you need to look no further.

    “Clive Menell, the head of the gold-mining conglomerate, recruited him into the Urban Foundation, helped him complete the legal studies interrupted by prison and gave him a measure of credibility with the *people who held the real power in South Africa*. Clive’s son and heir, Rick Menell, became and remains a close friend.”

  • Maggs Naidu – Yikes, another seven years! (

    January 29, 2013 at 23:11 pm


    “Irrational South Africans!!!
    May the official who is responsible for this burn in hell.”

    By now you know the drill.

    But just in case you forgot it’s FUCK THE POOR!!!!!!

  • Maggs Naidu – Yikes, another seven years! (

    Johannesburg – More details have emerged of government spending on The New Age newspaper, with Gauteng Premier Nomvula Mokonyane’s office having splurged close to R700 000 for one breakfast briefing last year.

    The money paid by Mokonyane’s office is in addition to the almost R1 million paid by state-owned rail freight firm Transnet, one of the sponsors of the breakfast in question.

    A purchase order seen by The Star shows how R683 095 was paid by Mokonyane’s office for the briefing.

    The premier’s office was also invoiced for 500 guests at R801.78 per head, totalling R400 890; and four front-page advertisements at R44 070 each, amounting to R176 280.

  • Maggs Naidu – Yikes, another seven years! (

    In the course of discussion I asked what the cost would be and the architect, standing next to me (who absolutely stank of booze) grinned and said ‘R12 to R14 million’. I turned to our foundation chief and said that that was about three times what we usually spend and asked what should the cost be for the design we were looking at. The answer: ‘about R5 or R6 million’. So I looked at the architect and asked ‘Where does the rest of the money go?’ He looked across the table at Zuma and Zuma just looked at me with this big smile.

  • Blue Ozone

    Interesting article maggs. This part is quite funny and [sad], ain’t it.

    “The reason I asked for him was because Anglo Gold had brought a real live lion (drugged of course) on to the NYSE stage as a very successful publicity stunt, and as long-time rivals we wanted to upstage them.

    “The effect of Mandela on the floor was electric. We got huge press around it and the stock went up nicely.””

    Anglo Gold with a drugged lion versus GFL with a drugged liberation fighter in a “publicity stunt” that made the stocks go up nicely. And we know how Madiba was smiling all the time too.

  • Zoo Keeper

    When you are convinced the ANC will rule till Jesus comes again (which is never), then this kind of abuse of public funds is simply an entitlement.

    Until the voters wake up, this will continue and we can shake our trees but sweet fuck all is going to happen.

    The ANC will win again in 2014, Zuma will retire to his plush pad with everything paid for by the State, including all running and maintenance costs. It will happen because we saw in Khutsong that despite the township hating the ANC the ANC still won even though only 10 people voted. Until the masses change their allegiance, we’re stuck with it.

  • Maggs Naidu – Yikes, another seven years! (

    Zoo Keeper
    January 30, 2013 at 8:58 am


    “Until the masses change their allegiance, we’re stuck with it.”

    Until an opposition party, which is able to earn the allegiance of the masses, emerges, we’re stuck with it.

  • Blue Ozone

    Maggs Naidu – Yikes, another seven years! (
    January 30, 2013 at 9:22 am

    That is fine. But then just like majority of Whites who voted NP for decades no-matter-what (and are therefore all “guilty” for “benefiting” from the system) the people shall now accept collective responsibility for this moral decay, corruption, crime, poverty and arrested development.

    Stop blaming their leaders and feeling sorry for the poor bastards. These leaders don’t elect themsleves.

  • Graham

    A comprehensive and impeccable summation of the situation, Pierre. Zuma is clearly complicit in this massive fraud and theft. This commentary of yours contains enough fact to warrant an impeachment.

  • Deloris Dolittle

    Just read on News 24 about a school that expelled a girl from its hostel for kissing another girl. This is what the school spokes person said:

    The school’s marketing director Chief Ndlovu told the newspaper it did not tolerate any sexual interaction on the premises.

    “If a particular pupil has a sexual orientation problem, let her practise it at home. Just as boys may like boys. We won’t tolerate sexual activity at the school.”

    The girl’s sexual orientation had not influenced the decision to expel her from the hostel, Ndlovu said.

    Should think Pierre could have some fun with this.

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “Until an opposition party, which is able to earn the allegiance of the masses, emerges, we’re stuck with it.”

    Maggs, it was you who, many years ago, taught me a lesson I will never forget: “ONLY the ANC can represent the aspirations of all our people.”

  • Maggs Naidu – Yikes, another seven years! (

    Mikhail Dworkin Fassbinder
    January 30, 2013 at 10:30 am


    You lie.

    Show me where I said that!

  • Maggs Naidu – Yikes, another seven years! (

    South Africa ranks second out of 100 countries for the transparency and accountability of its budget processes, according to the latest Open Budget Index Survey by the Washington-based International Budget Partnership.

    South Africa scored 90 points out of a possible 100 points in the Open Budget Index report of 2012, standing out as one of only six countries worldwide that releases extensive budget information to the legislature and the public in general.

    The National Treasury said on Monday that it strived to constantly improve public finance management processes to ensure that there was a clear understanding of how public funds were used.

  • Blue Ozone

    Mikhail Dworkin Fassbinder
    January 30, 2013 at 10:30 am

    In fact I said that. That was before it become clear that the ANC is corrupted to its very core, have compromised the integrity of the republic of South Africa and the rule of law and order when they released a “friend of the Mafia” who was National Police Commissioner for almost a decade.

    Now I demand self–determination, or the constitutional right NOT to be “governed” by friends of the Mafia.

  • Gwebecimele

    Who is funding our democracy??
    Zille’s pants on fire, twice this week.

  • Gwebecimele

    Offloading, !!!
    What about transforming the very companies that generate this wealth Sanlam , Harmony etc.

    Good gesture but something is missing here.

  • Blue Ozone

    January 30, 2013 at 12:25 pm

    “Good gesture but something is missing here.”

    Perhaps this?

    “Motsepe also expressed an interest in extending his holding in platinum, leading to discussions that his announcement might be related to the four shafts in Rustenburg that Anglo American Platinum is looking to mothball.”

    “Mothballed” after Marikana?

  • Mikhail Dworkin Fassbinder

    @ OzoneBlue

    “I said that. That was before it become clear that the ANC is corrupted to its very core”

    I understand, OB. Like you, I have beeen STAGGERED by recent revelations about corruption in the ANC. I admit that I, like you, was firmly convinced that the Arms Deal allegations of more than a decade ago, and which led ANC MPs like Feinstein to resign, were largely CONCOCTED. I also assumed that the allegations against MR Zuma were all FABRICATED! Come to think of it, I still say, as you do, that Mr Zuma has been unfairly condemned for the essential security upgrades to his kraal!

  • Gwebecimele

    These naughty workers are not going to get a cent from Mr Motsepe’s generosity.

  • Gwebecimele


    “Looking forward only, OUTA’s quest is to seek justice for that which is has no option but to defend. Comforted by the fact that it has the support of over 90% of South African citizens who are able to express an opinion on the matter, and that it has raised over R8 million in what is probably the biggest public-funded court challenge since our new democracy, OUTA believes society will continue to rise to its defence and donate the remaining R4 million to reach the R11,8 million target.”

    Wayne Duvenage

  • Maggs Naidu – Yikes, another seven years! (

    So Gwebs,

    lawyers have their bets hedged!

    ” the R11,8 million target.”

  • Gwebecimele

    Semenya getting a lecture on muti and tokoloshe’s. NUM members are miners after all.

  • I Tolduso

    Once again you raise an issue that is of critical importance to the future of all South Africans, and once again your resident troglodites reduce your efforts to intellectual rubble.

    Ever considered cancelling your comment section?

  • Mikhail Dworkin Fassbinder

    @ I Tolduso

    Only a long term cave-dweller would misspell Troglodyte.


  • I Tolduso

    Mr Fassbinder……Thank you. In so far as it matters, I stand corrected

  • Maggs Naidu – Yikes, another seven years! (

    I Tolduso
    January 30, 2013 at 18:03 pm

    Hey Cave Guy,

    You and Dworky should start your own satellite blog.

    Perhaps you could call it and you could talk about the appalling dangers of family life.


  • KJMüller

    @Fassbinder – “troglodyte” as per Merriam Webster
    @I-Tolduso – never a truer word spoken

  • Beetle

    Does the tuck shop stock KFC?

  • joeslis


    “Does the tuck shop stock KFC?”

    No, but they’re sure to stock Nkandla Fried Troglobites who reduce the good Prof’s efforts to intellectual rubble.

  • Beetle

    Nxesi did a dive and he ducked
    How R200 million was plucked
    “Its all about key
    So dont ask me…
    You cant know how the poor have been fucked”

  • ozoneblue

    Maggs Naidu – Yikes, another seven years!

    “and you could talk about the appalling dangers of family life.

    Thx maggs. Lets face it is a hellavalot more interesting than JZ/Nkandla no 10001. FUCKING AGAIN.

    And I dont even get any sponsorship from the Claude Leon/ Rickie Menell foundation to come up with my shite!

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