Constitutional Hill

Nkandla: the National Key Points Act must be ignored

The Minister of Public Works must have jumped for joy when he was told that details of the abuse of public funds to upgrade the private home of President Jacob Zuma and Nkandla could be suppressed by invoking the truly authoritarian National Key Points Act. Passed in 1980 – as the finger-wagging, lip-licking, PW Botha and his securocrats were consolidating their autocratic powers and creating new mechanisms to censor the media to prevent another embarrassing Info scandal – the Act is a true relic of an undemocratic and oppressive past. No wonder it is only invoked selectively in an attempt to hide aspects of some – but not other – scandals washing like the proverbial tsunami over the Zuma government.

When journalists reported that a plane full of wedding guests (attending the lavish wedding organised by the politically connected Gupta brothers) had landed at Waterkloof Air Force base, they probably did not realise that they were potentially exposing themselves to the risk of a three-year prison term for breaching the provisions of the National Key Points Act. This is because Waterkloof Air Force base has allegedly been declared a National Key Point – although there is no way of knowing whether this is true or not because the list of National Key Points is itself a state secret. (For all we know there is no list of places declared as National Key Points at all and our government makes up National Key Points as they see fit in order to cover up corruption and maladministration – we simply do not know.)

But when, first, Gwede Mantashe and then later several cabinet ministers also commented on the scandal, they must have known that they were running the risk of breaking an infamous Apartheid law – if Waterkloof Air Force base is indeed a National Key Point as alleged. But because they were trying to protect the president, they seemed to have shown little concern about the possible dangers of breaching the provisions of the National Key Points Act – and rightly so. Pity the same level-headed attitude about this Act is not in evidence as far as the corrupt use of public funds to upgrade the private home of President Zuma at Nkandla is concerned.

Section 10(2)(c) of the National Key Points Act states that any person who:

furnishes in any manner whatsoever 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, or without the disclosure or publication of the said information being empowered by or on the authority of the Minister… shall be guilty of an offence and on conviction liable to a fine not exceeding R10,000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

This section is rather broad. It prohibits any person from revealing any information about any “security measures” (or lack of security measures, one would assume) applicable at a National Key Point. It also prohibits anyone from furnishing any information on “any incident” of terrorism or subversion that had occurred at the National Key Point. However, we are not allowed to know which areas have been declared National Key Points and we are asked to trust the relevant Minister who claims at will that this or that site has indeed been declared a National Key Point.

This means that the journalists and the ministers who furnished information to the public about the landing of a private plane at Waterkloof Air Force base and the relative absence of security measures at the time, as well as the manner in which the guests on that plane was dealt with, might – at a stretch – inadvertently have revealed information about “security measures” applicable at Waterkloof and in theory might have committed an offence in terms of the National Key Points Act.

But I suspect the journalists and the ministers will be safe from criminal prosecution. Although the section is indeed absurdly broad, the Act does not prohibit anyone from providing any information about the National Key Point at all. It is clear that the Act does not prohibit anyone from revealing any information on non-security related measures or incidents at a National Key Point. On this basis the journalists and the ministers who revealed information about the landing of a private plane at a National Key Point might escape criminal prosecution. They might argue that they only revealed information on events that took place there and did not reveal what security measures are in fact in place at Waterkloof.

If this is correct and if the journalists and Ministers did not commit a criminal offence when they revealed details of the Gupta plane landing, then the claim by the Minister of Public Works that the report on the Nkandla scandal cannot be made public and must be discussed behind closed doors because Nkandla is a National Key Point is demonstrated to be pure nonsense invented to hide the truth about the abuse of public funds. Just as the journalists and the ministers were allowed to reveal information around the landing of a plane at Watekloof, we are also allowed to reveal information about the use of public funds for the upgrade of the private home of President Zuma at Nkandla.

Soon the Public Protector will finalise her report on the Nkandla scandal. In a futile attempt to protect the president, the very cabinet ministers who ignored the possible infringement of the National Key Points Act in the Guptagate saga will invoke this law to try and suppress that report. Those of us who might obtain a copy of the Public Protector’s report might do well to follow the example of the various ministers by ignoring the absurd law and publishing the Public Protector’s report.

As a complainant in the matter I expect to receive a copy of that report. Taking my cue from the Minister Jeff Radebe, I promise to publish it on my blog as soon as I receive a final version of that report. After all, I have no evidence that President Zuma’s Nkandla home has indeed been declared a National Key Point, and would take any claim to the contrary by the Minister of Public Works with a pinch of salt.

And even if Nkandla had indeed been declared a National Key Point as claimed, a report dealing with the use of public funds to upgrade the private home of the president will surely not reveal information about existing security measures at Nkandla. For the same reasons the Ministers ignored section 10(2)(c) of the National Key Points Act when they discussed the landing of a private plane at Waterkloof, I will also ignore that section when provided with the Nkandla Report by the Public Protector.

Surely, if we agree with Minister Jeff Radebe, who said during the Guptagate scandal that “the truth shall set you free”, we all have a duty to expose rather than cover up corruption. It is for that reason – and because it will not break any law – that the Public Protector’s Report on Nkandla must and will be made public.

  • Maggs Naidu – Zuma : “That’s how democracy works!” (maggsnaidu@hotmail.com)

    @ Pierre : “I promise to publish it on my blog as soon as I receive a final version of that report.”

    That’s great news.

    And I’ll spread it wherever I can!

  • Brett Nortje – The New South Africa COULD have worked! Unfortunately the ANC kept getting in the way.

    Way to draw a line in the sand!

    I disagree about the ‘abominable’ NKPA though.

    I think the beancounters and penpushers did us a huge favour when this Act was drafted, especially looking at S3B.

    The rights culture has penetrated only superficially in all of us, and we need to learn PAIA is our friend.

  • Justin

    Well done Pierre!

  • Chris

    Maggs Naidu – Zuma : “That’s how democracy works!” (maggsnaidu@hotmail.com) says:
    May 16, 2013 at 8:20 am

    Haha, so you are going to jail with Prof De Vos!

  • Maggs Naidu – Zuma : “That’s how democracy works!” (maggsnaidu@hotmail.com)

    Chris
    May 16, 2013 at 12:14 pm

    Hey Right-Wing-Guy

    “Haha, so you are going to jail with Prof De Vos!”

    In the words of our wise leader “(t)hat’s how democracy works!”

  • http://www.ozoneblue.co.za/ Ozoneblue

    YAWN. Nkandla story sequel_10001.

    Yes liewe Pierretjie, Zuma and his Guptas are very, very EVIL. They had a volksvreemde Indian wedding at Sun City nogal (Sol Kerzner would be spinning in his grave if he was dead) while Cyril Ramaphosa braaied 18 mil worth of prime cut Buffalo bull not long ago.

    I mean – how fucking mucho is that Cyril. You should be invited for the next buffalo braai, I have heard that the Africans and the British are well presented in the Claude Leon Foundation despite for the obvious lack of demographic representivity for the racist Boers and those stinking bargaining Guptas.

  • http://www.ozoneblue.co.za/ Ozoneblue

    “The proposal for a ‘Chair in Constitutional Governance’ was the initiative of the Chairman in discussion with Prof Hugh Corder, then Dean of the Law Faculty at the University of Cape Town in 2008. This was a period of heightened drama and tension in legal circles, but also more widely in society as the events surrounding Judge President Hlophe, the Constitutional Court and the Zuma trials began to play themselves out.

    In its motivation for a ‘Chair in Constitutional Governance’, UCT’s Law Faculty argued that the new battle-ground within the constitutional law field will concentrate less on the human-rights area and more on the relationships between the institutions and levels of government and their accountability to the public through their constitutional obligations.
    Prof Pierre de Vos was appointed the Claude Leon Foundation Chair in Constitutional Governance in 2009. He has a B Comm (Law), LLB and LLM (cum laude) from the University of Stellenbosch, an LLM from Columbia University in New York, and an LLD from the University of Western Cape. He taught at the University of Western Cape from 1993 to June 2009.

    The Claude Leon Foundation has agreed to fund the establishment of this Chair for five years (2009-2014). Thereafter, the faculty has undertaken to continue the funding of the Chair through the general operating budget as a permanent fixture of its academic offerings.”

    http://www.leonfoundation.co.za/uct.htm

  • http://www.ozoneblue.co.za/ Ozoneblue

    Nkandla story sequel_10001.

    In its motivation for a ‘Chair in Constitutional Governance’, UCT’s Law Faculty argued that the new battle-ground within the constitutional law field will concentrate less on the human-rights..

  • http://www.ozoneblue.co.za/ Ozoneblue

    LOL.

    Real tragedy for the evening.

    http://www.citypress.co.za/wp-content/themes/canvas/functions/630xNxthumb.php,qsrc=wp-content,_uploads,_2013,_05,_ANC.jpg,aw=630,ah=0,azc=1,aq=90.pagespeed.ic.OoU9tIEgsQ.jpg

    I can just imagine them so deeply inspired by ANC “revolution” message – we hate those fucking white males and kill those boers.

  • Gwebecimele

    Maggs

    Can you organise for OB to visit ME so that he can investigate the “Karabus hospitality” for about a year?

  • Gwebecimele

    How different are the Court and NPA officials involved in this case to another civil servant who just wasted R30 million of taxpayers money?

    http://mg.co.za/article/2013-05-16-who-is-j-arthur-brown-and-how-much-of-your-money-did-he-waste

    The victims are right to suggest that they” We would be better off if Brown was never arrested.” Thats justice Mzansi style at HUGE COST for you.

  • beetle

    Kids die in circumcision school and the Minister says she can’t interfere because she’s a woman and this is verboten big-deal, traditional healer, voodoo, cultural issue.
    What a disgrace!
    What an insult to women and to mothers.
    …. and I bet the survivors have been serially HIV infected.

  • http://www.ozoneblue.co.za ozoneblue

    Gwebecimele May 17, 2013 at 13:33 pm

    Ag shame gwebs. You recon their are some white scumbags who are almost just corrupt as our democratically elected ANC leaders who are supposed to be our peoples GOVERNMENT.

    Life just isn’t fair if you are Black but as long as you can blame it on a White male it is always ok.

  • Mikhail Dworkin Fassbinder

    Colin! Everyone is looking forward to the study tour next week, in which Cape Town City (read DA) people will visit their counterparts in Jhb and Durban (read ANC) people to LEARN from them how to deal with landless people with GRACE! Are you still going to join us at the reception at Mill Park Holiday Inn on Wed. evening?

    Looking foward!

  • Brett Nortje – 19 years of ANC rule! Is South Africa FUBAR?

    Dworky sounds like a GCIS advert:

    “Looking foward!” (But not moving forward an inch! We’re still talking about planning….)

  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    Gwebecimele
    May 17, 2013 at 13:11 pm

    Hey Gwebs,

    “Can you organise for OB to visit ME”

    I would like to assist.

    I really would.

    But as you may have noticed, OB has been appointed the WHITE Messiah of Indian people EVERYWHERE!!!!!

    We need him close by.

  • http://www.ozoneblue.co.za/ Ozoneblue

    Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)
    May 17, 2013 at 15:15 pm

    “But as you may have noticed, OB has been appointed the WHITE Messiah of Indian people EVERYWHERE!!!!!”

    True enough, compation and Ubuntu, civilisation itself means we can put ourselves in other people’s shoes:

    First they came for the Whites, and I did not speak out–
    Because I was not a White.

    Then they came for the Indians, and I did not speak out–
    Because I was not a Indian.

    Then they came for the Coloureds, and I did not speak out–
    Because I was not a Coloured.

    Then they came for me–and there was no one left to speak for me.

    http://www.ushmm.org/wlc/en/article.php?ModuleId=10007392

  • Maggs Naidu – Come out of the cupboard Dmwangi, don’t be shy you’re among friends! (maggsnaidu@hotmail.com)

    Ozoneblue
    May 17, 2013 at 16:26 pm

    OB

    “Then they came for me–and there was no one left to speak for me.”

    Not to worry, if they come for you, I will speak for you.

    I will tell “them” to place you in a straight jacket and put you in a padded cell for a loooooooong time!

  • ozoneblue

    @maggs
    lol.

    I think living in Africa drives rational white people bit crazy. Especially when you travel around read the news and know that whites and indians have .been ethnically cleansed on many occasions.

    And how many whites brutally murdered since 1994?

  • joeslis

    Maggs

    “I will tell “them” to place you in a straight jacket” …”

    That’s “straitjacket”, Margaret. Nothing straight about it. :-(

  • http://www.ozoneblue.co.za/ Ozoneblue

    And now coming back to what the Struggle is all about.

    Especially for you PdV, Brett, Maggs, Dworks and Gwebs. It is not about “identity politics”, it is not about “demographics”, it is not about amplifying ethnic divisions and racial hatred. It is about this.

    Why is violent crime so rare in Iceland?

    “First – and arguably foremost – there is virtually no difference among upper, middle and lower classes in Iceland. And with that, tension between economic classes is non-existent, a rare occurrence for any country. A study of the Icelandic class system done by a University of Missouri master’s student found only 1.1% of participants identified themselves as upper class, while 1.5% saw themselves as lower class. The remaining 97% identified themselves as upper-middle class, lower-middle class, or working class. On one of three visits to Althing, the Icelandic parliament, I met Bjorgvin Sigurdsson, former chairman of the parliamentary group of the Social Democratic Alliance. In his eyes – as well as those of many Icelanders I spoke with – equality was the biggest reason for the nation’s relative lack of crime. “Here you can have the tycoon’s children go to school with everyone else,” Sigurdsson says, adding that the country’s social welfare and education systems promoted an egalitarian culture.”

    http://www.bbc.co.uk/news/magazine-22288564

    It is time to learn the real meaning of Ubuntu from the WHITE people.

  • http://www.ozoneblue.co.za/ Ozoneblue

    And Dan Roodt of all people stands up for Herr Mngxitama:

    “This phrase must be seen in context. First of all, Mngxitama is known for his polemical and sometimes controversial statements. He writes a column in the Mail & Guardian and has written regularly for City Press and The Sowetan, putting forward so-called “black consciousness” views. Many editors, organisers of conferences and so on, solicit Mngxitama’s views, knowing that he sometimes comes across as a “radical”.”

    Dan Roodt sounding so much like a Jullian Scutte or Pierretjie De Vos.

    Is it possible they are all batting in the same team?

  • http://www.ozoneblue.co.za/ Ozoneblue
  • Maggs Naidu – Zuma knows what he is doing! (maggsnaidu@hotmail.com)

    joeslis
    May 17, 2013 at 18:08 pm

    Joey Guy,

    “Nothing straight about it.”

    We’re not talking our Presidency (this time)!

  • Maggs Naidu – The DA fought apartheid! (maggsnaidu@hotmail.com)

    Ozoneblue
    May 17, 2013 at 21:22 pm

    OB

    “Why is violent crime so rare in Iceland?”

    So there’s no WHITE people in Iceland?

  • Gwebecimele
  • Maggs Naidu – Poor people should have joined the struggle! (maggsnaidu@hotmail.com)

    Johannesburg – The value of a property owned by the Gupta family in Johannesburg has dropped from R16.8m to R490 000, the Saturday Star reported.

    According to the latest municipal valuation roll the large 4 207m² Saxonwold property’s value dropped lower than the price it was sold for in May 1994 – when it was sold for R559 000.

    http://www.news24.com/SouthAfrica/News/Swanky-Gupta-property-valued-at-paltry-R490k-20130518

  • guest