Constitutional Hill

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.

  • Demi-Jane Lyons

    Although it is abundantly clear that the President of our ‘democratic’ nation is not innocent to the full extent that he claims to be, we must look at the entire situation with as much objectivity as possible. Judging from the certain failures, as mentioned in the article of the Public Protector to develop a complete and thorough investigation, criticism can be drawn up from the Nkandla report.

    More forceful and legally affirmative action should have been used against Jacob Zuma, regardless of his status he should be treated equally before the law as any other suspect undergoing criminal investigation. I wonder to myself, if Zuma is so prominently guilty why is he still able to delay his response and the Nkandla investigation.
    Why has the report not provided enough substantial evidence to aid the allegations of Zuma committing a criminal offence?

    It is given that Zuma did not comply with his legal duties and failed to answer the relevant questions and provide important evidence needed for the investigation. Such incompetence
    taints Zuma’s innocent image but it also questions the Public Protectors thoroughness and accuracy to carry out such a controversial ingestion as these failures from Zuma were so easily disregarded.

    I am not whole heartedly criticizing the report and do not condone the ANC party and its followers eagerness to protect corrupt politicians by overly criticising the Nkandla report to unjustified lengths. However, I am agreeing to the fact that more affirmative action should have been used when conducting the report.

  • Antonie Klopper

    Firstly professor, thank you for referencing the act. I was wondering where to get hold of the laws regarding the powers of the public protector.

    Secondly as you said Proffesor the Act clearly states in Section 6(4) that if the “public protector is of the opinion that the facts disclose the commission of an offense by ANY person”…but the act also states that she may bring the facts to” the authority charged with prosecutions” at ANY time…”A time prior to, during or AFTER an investigation”. Maybe she wants to wait till after the elections. Maybe she’s stalling. It saves her time to get as many facts for the case as possible and it also spares her the legislation she has to deal with if she takes the president to court during elections. The ANC are already agitated with the DA’s SMS’s…

    Stalling gives her the advantage of time and preparation. The Nkandla report will most likely not change the leadership of the ANC, so Adv. Madonsela will still have the chance to give the president over to the prosecuting authority if and when she is ready…

    Well professor in actual fact I hope she is stalling…that is all explanation I have.

    Hopefully she is also sitting on a lot more than she was willing to disclose to the public.

  • Bontle Molefe

    The point made is this article about the intentions of those who have voiced their critique towards this report is are not those of good faith. These individuals and structures are more concerned with the issue of the money used in this project than the fact that the money was used at all.

    Fact is, the issue goes way beyond the millions that we so clearly have been yearning for for years as if we expect that it would have had any better use in this very administration that misused it in the first place, would have put it to good use. The undeniable problem that we have to face here is that we have an administration leading us, and administrations filled with people we cannot trust and therefore cannot respect.

    This leads to a loss of respect within and outside the country. Such damage has no monetary value apart from the changes we will only notice in the economy in the long run. What this says is that the focus must be shifted from the issue of the exact amount of money used and every little detail about it. Fact is, it has already been established that the expenditure was overly extravagant and unlawful on many levels, and that is what we must be focusing on.

    In my opinion, all the hype that has surrounded this issue has been made to lean towards the monetary damage that has been incurred so as to pull the wool over out eyes as to the real problem at hand. Clearly no one is ready to address the fact that the president must be held liable for his actions as it had so far been established that he was not acting in good faith.

    The question is, why is this not being done? Why are the people in the right authority to effect this change ‘afraid’?

  • Sewela 14216117

    Recently with the Oscar case everyone was going on about how justice will and must be seen to be done by the public. However the delay by the president to answer questions about the report raises even further questions about equality before the law and the supremacy of the constitution in practice. On paper we say its so but the president the one who is supposed to uphold the constitution and rule of law (all citizens also should) is clearly disregarding it.

  • Erika Potgieter 14139414

    When reading the Public Protector Act, especially section 4, a few questions are raised. The Public Protector is supposed to be someone who has a good grasp on the law. She obviously did not apply the laws correctly. Does she not know them or does she simply not care about them?

    As mentioned in the article she did not follow correct procedures when pres. Zuma refused to comply. Furthermore, she did not report him to the police as she was legally compelled to do.

    Could it be that the Public Protector did not know the full extent of the laws? Or could it be that she was too afraid of repercussions considering the status of the official she was investigating?

    I do not wish to insult her in any way through this. I do not envy her her job. I think it can be a very difficult task at times, especially regarding the Nkandla matter. However I do not agree with the way she handled the matter. If our government officials do not have to follow the law, why should we?

    The one thing that this whole matter has brought to light for me is how far off the path we have gone. When reading the 1996 constitution we get this beautiful ideal of what we can be as a country. Instead we now have corrupt officials, a president who doesn’t feel he is subject to our laws and an economy that leaves a lot to be desired.

  • Karl-Heinz Sittlinger

    Even someone as fearless as the PP, will be careful of directly accusing Zuma, leading to loss of power and maybe even jail (those 700+ charges are still out there) for our number 1.
    We have seen what happens to people that cross Zuma’s path to long…

  • Miss M Freeman

    Criticism of the government should always be met with open
    arms as it is a means of collectively bettering the current circumstance.
    The criticism here of the public protector’s lack of determination to obtain the truth is definitely required.
    Bringing this issue to light is (in my opinion) the best way to ensure that something is done about it and the sooner the wrongs can be righted. Even the people in the highest positions are subject to
    making mistakes, the public protector included.
    I do, however, feel that in order for one to criticize another, one must ensure that one’s claims are well substantiated and accompanied by helpful solutions. There is no use telling someone that they are wrong if you do not also tell them what they can do to improve it.
    As Mr de Vos has pointed out, certain others feel the need to
    criticize without any factual basis and seem to do so just for the sake of having an opinion. This should be seen as opinion, not criticism, and should be treated accordingly.

  • Tiffany Crous 14080797

    Government officials are appointed into their respective positions to fulfil the very purpose of a democratic government – to act in the interests of the citizens; the general public. By not exercising her full legal authority and powers, not only is the Public Protector failing to promote the interests of the people but she is not fulfilling her own duties.
    However, she did act in the full interests of the public, bringing to light many issues of which most people were unaware. She tried to do a lot within her own capacities in order to expose the misuse of tax money to fund the Nkandla project.

  • Johan Taljaard (14012252)

    Ek bedank die Openbare Beskermer vir die feit dat sy werklik bereid is om ieder en elke te ondersoek, ongeag die pos van die persoon of die moontlike kritiek wat sy dalk mag ontvang.

    Daar is min mense in Suid Afrika wat deesdae bereid is om tot die uiterstes te gaan om vir ander mense se regte op te staan en om bepaalde waarhede aan die lig te bring, ongeag die moontlike gevolge daarvan.

    Ja, toegegee, die Openbare Beskermer het ook foute. Haar verslag oor Nkandla, soos uitgewys deur mnr. De Vos, is nie perfek nie. Dit is egter ontoelaatbaar dat sy deur onkundiges in die openbaar uitgejou word, bloot omdat hul politieke agenda nie bevorder word deur die gevolgtrekking van haar verslag nie.
    Dit is nie haar skuld as haar bevindinge bewys dat President Zuma onregmatig opgetree het nie.

    Dit is tyd dat politici verantwoordelikheid vir hul dade begin neem.
    Dit is ook tyd dat Suid Afrikaners kollektiewe verantwoordelik neem (tesame met individue soos Thuli Madonsela) om korrupsie uit ons pragtige reënboognasie uit te roei.

    Dit is ontoelaatbaar dat individue ons land se blink toekoms bedreig, as ons iets daaraan kan doen.

  • jenna hilton 14030927

    14030927 – With the failure to provide evidence of the “alleged
    bond” and the uncooperative response from Jacob Zuma in responding to the Public Protector, it clearly portrays the lack of commitment form our president. Our Public Protector’s imperfect report also portrays the corrupt government our country has. So why does our country keep the ANC in authority? I do not know. In section 7 (4) of the constitution it stipulates that it is unlawful to refuse to answer questions asked by the Public Protector. The worst thing is that the Public Protector did not force Zuma to abide by the law and she did not institute action on his wrongfulness. Troubling? I think so!

    Getting back to the topic of the article by Pierre above, I
    fully agree with Bontle Molefe’s point of view. Krish Naidoo was completely biased in his reasoning in his article. The article is also proved in Pierre de Vos’ article to be untrue. Our country clearly needs better attorneys when dealing with criticising the Public Protector’s report.

    The faults in the Public Protector’s report are evident and
    should therefore be criticised by professionals who have experience in being a critic. Plagiarism and untrue statements by Mr. Naidoo are unacceptable and embarrassing towards the public.

    It makes me question whether the Public Protector’s report
    should, in actual fact, be criticised more than the article by Mr. Naidoo himself.

  • Carlia Pienaar

    I agree with the writer that criticism in the law should be welcomed. I also agree that some of the criticism given on the Report is without grounds and irrational.
    It is clear that some of the critics did not even read the whole Report and therefore made irrelevant arguments. Instead of criticising the Public Protector on small matters, it should not be ignored that president Zuma used public funds for personal matters.

  • Michelle Schoeman

    I agree with Pierre de Vos. It should be encouraging to leave comments, but the people who comment should have a good understanding of the Report before doing so. They shouldn’t leave insulting comments towards the Public Protector that can be seen as a criminal offence. The criticism on the Public Protector’s Nkandla Report should have been appropriate in this matter.

    The attention should be focused on the President’s way of handling the Nkandla project. He refused to use legal authority and go through legal measures to make sure it is done constitutionally. He illegally used public funds for private interests instead of security measures. He failed to provide evidence and answer relevant questions regarding the investigation, which is seen as a criminal offence.

    All the blame is on the Public Protector for not forcing the president enough to cooperate or not using her legal powers to prevent him from sabotaging the investigation. The president should have known he had to comply with his legal duties. He must be held responsible for his actions.

    The people who have been criticizing the Nkandla Report is defending the president for his corruption, they are also against the fact that he was asked to repay a small part of the amount that he and his family received from the public funds. They are using their own opinion on this without actually reading the Report. Critics like Mr Naidoo claims that the Public Protector’s Report includes sections that she did not include at all. She even quoted sections of the Constitution to support her Report. He accused her of plagiarism without having his facts straight.

    The president didn’t act ethically and his best interest was in himself and not in good government. If this corruption continues, the other countries of the world might reconsider doing business and investing in South Africa in the future. The people of South Africa need to put their focus on the importance of the type of president that is leading our country. The president is doing his business unconstitutionally and stealing public funds to satisfy his private interests while other important needs of South Africa is left untouched.

  • 14095476

    The first issue being brought to our attention through this article is that our Public Protector has performed with an inadequacy that should not merely be accepted by the public.
    Executive Members Ethics Act places a legal duty on the public protector to investigate any breaches of the Executive Members Ethics Code. However, not only has she failed to act decisively, force compliance from the president or obtain a warrant to search his home and offices (as mentioned in this article) but she also failed to inform the National Prosecuting Authority or the police on the president’s lack of compliance. The most obvious reason for her reluctance to conduct a thorough investigation can be directly linked to the fact that a public protector is appointed by the president himself on the recommendation of the National Assembly. Should this not be a concern for the public? Should there not be consequences in place for lack of action from the public protector’s side? This is someone who should have the public’s best interests at heart and yet she fails to conduct a fair investigation. The public should immediately question who can be trusted when it comes to their interest’s as there are far too many people protecting the corrupt members within our government.

    It is blatantly obvious that he is guilty of the misuse of public funds and since he failed to provide the required evidence of the alleged bond as well as refuse to answer any questions posed to him by the public protector, his actions (or lack thereof) give him the status of a criminal therefore he should be treated as any other criminal would be in this situation.

    The second issue would be that critics are making claims that cannot be justified or substantiated. This, too, should be a concern for the public as this leads to them being mislead. The claim of the public protector wrongfully invoking section 140 of the Constitution as well as the plagiarism claim that attorney, Krish Naidoo, has made with regards to the Nkandla report are inaccurate and misinformed, so much so that it can be concluded that the public protector’s report was not read at all. Even with these false claims having been made, his article was published in the New Age. The fact that false claims with the intention of discrediting the report are concerning. Does this mean that critics are unable to fully comprehend the report or are they purposefully trying to mislead the public?

    Both of these issues are ultimately linked to the fact that we live under an ANC majority. The fact that they are the current majority gives them a sense of entitlement and maybe even arrogance. This is clear as the president feels he is above the law. This in itself should alert us to the fact that the supremacy of our constitution is being undermined. Parliamentary sovereignty is something of the past and the constitution should serve as our main guideline yet the question is, what is being done about the fact that the president is in clear violation of the constitution?
    Overall, the constitution imposes a duty on the president to protect state resources. The policy on wasteful expenditure should be considered in this situation.
    As the head cabinet member he is ultimately responsible for the use of state resources and yet there is no evidence or record that he did anything to prevent or stop the misuse of funds.

    While the Oscar trial is definitely a popular case right now, the public should focus on what is happening with their funds and what is being done to keep their interests as a priority as it is this that will have a direct impact on the public in the long run.

  • 10106228

    I agree with the view that many critics base their criticisms on their own political ideals instead of the arguments set out in the report. If we are realistic and consider the fact that the report is 447 pages long, it is evident that the majority of critics would not have read the whole report. This is clearly pointed out by Professor de Vos with regard to Mr Naidoo’s criticism. How can we take criticisms made by such individuals seriously? One would not even write a movie review without having watched the whole movie, in fear that an unforeseen twist in the plot would discredit your review. Individuals should be cautious in criticising the Public Prosecutor in this regard. It does not only damage the credibility of your reputation, but it also places the morale of the community in a bad light. We are entitled to our opinions, but public criticisms should not be made on unsubstantiated claims. We should leave the criticism to those who are dedicated enough to read the report and give knowledgeable feedback.

  • u14030005

    The fact that our president felt the need to withhold evidence from the NA is the wrong message to send to his followers. Would this have been the same case if he was not the president?

    President Zuma should be the one to follow the constitution of South Africa 100%, leading his country down the right path. Is our country safe if this (not searching beyond what is being presented in court) is allowed to happen in our backyard, so to speak?

    It is only just that President Zuma is to be treated the same way as any other citizen of this country no matter what their status is. Evidence should not be withheld, as well as every question to be answered with the utter most truth.

    I feel that the Public Protector should have made use of section 7 A of the Act to obtain a search and seizure warrant, to search President Zuma’s office and obtain the needed documents and/or evidence needed to make the correct conclusion to the case.

    If all our laws are followed by each and every person in this country, especially those laws in the court and those that enforce the laws, then it will already fix the broken parts of South Africa.

  • 14020752

    It is clear that the President breached his responsibilities towards the constitution and his nation by benefiting from resources from the public and not of his own and should definitely be held responsible for his actions. He breached section 2 of the Executive Members Ethics Code by not following it at all! He also failed to answer the questions from the Public Protector which leads to thinking – “Zuma is guilty”. President Jacob Zuma must be treated as an equal in the law regardless of his status and the Public Protector or anyone else should not be afraid to hold the president responsible for corruption.
    The Public Protector should manage the Nkandla issue like any other criminal situation because she is assigned to that position to protect and be in favor of the public.

    On a different note, like Prof. Pierre de Vos said, people should be encouraged to make comments regarding the report BUT critics should make sure of all the facts and understand and the report before criticizing incorrectly.

  • Monique LJacobs

    The idea of a false impression being given by the media is incomprehensible, as one would think that in order for the media to benefit they would create stories that would breed distrust toward the president. One may grow to think that either they have become frightened or are being influenced in some other manner. In South Africa the constitution is supreme and it seems that many citizens are unaware of the contents of it. I therefore feel that if false information i s fed to the public they would blindly believe and then try to teach. it cannot have a good affect on the general knowledge of the citizens of South Africa!!

  • Tyla M’Crystal

    After reading this article, I find myself stuck on the fence of whether to fight for or against the public protector- but tend to sway more to be a proud supporter of the public protector. The public protector seems to be the only person in this country trying to right the wrongs of the government. This cannot be an easy task, however she has manage to stand out, bring to the public’s attention to this wrong doing and try to fix it. This lady has stood tall and has not stood down after numerous threats on her life aswell as her career, not to mention articles which are complete lies. The public proteector has taken her time on this case to make sure she has all the facts correct, she has not taken any trouble from the government and yet she still receives criticism.
    Yes, I agree that she should have pressed the president for answers, that she should have followed certain laws, or even have used her legal powers to recieve all the information . Nevertheless, she has done something where many have not. It would be ideal if she had done a job worthy of a hundred percent, but I shall not fault her on an eighty percent job. I believe she has tried her best, having the best interest of the public in mind as well as to avoid participation in political activites (which is stated in the code of conduct for members of national prosecuting authority, subsection C(b)).
    The public protector may not have pleased everyone, but one never can. The most important thing from this point forward, is whether she makes sure that the president pays the money back to the country. If she fails in this regard, I feel she would then have failed the country and wasted her time fighting this battle.

  • natala petrus 14196078

    When ANC came in authority in 1994,there was a light of hope that ther won’t be any oppression of one person by another.It is a responsibility of the President to ensure that basic services are provided to citizens.But with this cabinet is an oppossite of what South Africans fought for.Instead the President is the one who is unjustly enriched from the tax of the community.After the Nkandla report it came to my intention that our government wants to manipulate a justice system to its favour.The aim of judicial authority is to protect citizens from abuse of power and ensure that courts apply law without fear and prejidice,only constitution is supreme in our coutry not the President.I strongly condemn the statements posed after the report by the very same members of the ruling party,it makes our democracy inferior.The should be a call of protection for our Public protector.these attacks are out of order

  • J.M Makhubela

    It is the medias role to inform the public about everything happening in the country and the world at large. With the constitution being supreme, the media is actually proving to us that the fact that no one is above the law is actually ironic. Many people, especially politicians have been playing dirty too long. I am happy they are exposing then and i know there is still more of those who are going to be exposed.

  • L.D11282551

    The arguments raised in this article highlight the ongoing corruption and misconduct by high ranking officials and government members.This is not a new topic to the ears of South African citizens.

    Due to the gross expenditure on enlarging private assets of the President, many are outraged once again.I agree with Pierre de Vos in the sense that the public protector has not used her “extensive legal powers” in this matter. Is this once again due to corruption, or to the failure to keep those in power accountable to their actions? What moral example does President Jacob Zuma portray to citizens of South Africa in this context? With the high crime rates should our leader not abstain from dubious activities? These questions penetrate the hope for a fair and just South Africa where the constitution is supreme and all citizens are held accountable for breaches in law. Positions of power come with a responsibility
    to uphold the law and provide an uncontaminated and respectable role model for others to follow. Is this the case with the South African government at present? Too many “mistakes” are forgiven with regards to those in power.

  • L.D11282551

    The arguments raised in this article highlight the ongoing
    corruption and misconduct by high ranking officials and government members.This is not a new topic to the ears of South African citizens. Due to the gross expenditure on enlarging private assets of the president, many are outraged once again. I agree with Pierre de Vos in the sense that the public protector has not used her “extensive legal powers” in this matter. Is this once again due to corruption, or to the failure to keep those in power accountable to their actions? What moral example does President Jacob Zuma portray to citizens of South Africa in this context? With the high crime rates should our leader not abstain from dubious activities? These questions penetrate the hope for a fair and just South Africa where the constitution is supreme and all citizens are held accountable for breaches in law. Positions of power come with a responsibility
    to uphold the law and provide an uncontaminated and respectable role model for others to follow. Is this the case with the South African government at present? Too many “mistakes” are forgiven with regards to those in power.

  • MelAC1801

    After reading this article and the comments posted , I have to say I agree with the many opinions that have been put forth regarding the Nkandle Report. My first initial thoughts while reading this article were:

    1) The lack of legal and affirmative action taken by the Public Protector when she has full evidence of President Jacob Zuma’s guilt in the use of public funds on his Nkandle home.
    2) The Presidents incompetence when refusing to answer questions or provide documentation of the bond when it is his legal duty to comply with The Public Protectors Act and the Public Protector should not let him refuse his duties.
    3) What is the underlying reasons for the Public Protector to not act with her full capacity when she has the Public Protectors Act , as well as the finding that the President is in breach of section 2 of the Executive Members Ethics Code. This enables the Public Protector to gain a warrant to search the President’s home. All the evidence that is needed in right there for the taking and I believe the public will feel more of a relief if they see the legal justice system put more into effect with its purpose.
    It is understandable that the Public Protector has a difficult job on her hands as she faces dealing with such a corrupt organisation. Our President should comply with his legal duties and not lay his duties on his own benefits. With Zuma’s lack of proper participation in the case and his approach to legal aspects, what is to say these actions and behaviour do not reflect his role in running the country.
    There should be firm legal action that follows the Constitution in order for justice to prevail. Our legal system is already considered ineffective in the eyes of many of the public. In many opinions I have heard, people feel that a case involving our ”democratic” country’s president is often overlooked as a result of corruption. And ironically this case happens to occur before election time, so is this the South African spirit in the legal sense.
    What are other countries suppose to reflect on South Africa if we cannot even bring justice upon our own president and the messages that would be conveyed will take South Africa off of anyone’s list of places to go or invest.

  • Yishika Moodley 14005329

    Thank you Professor, on a well-structured and substantial article with very helpful referencing to specific acts.

    Raising a very controversial topic, in terms of whether fingers should be pointed to the Public Prosecutor for her lack of authority or towards the President for his abuse of authority?

    In section 7 (4) of the constitution it stipulates that it is unlawful to refuse to answer questions asked by the Public Protector for an investigation or to withhold an evidence or proof. Yet, when the President did refuse, the Public Prosecutor did not enforce section 7(4).

    Should our President get free reign, regardless of the consequences, just because those who have the “power” to enforce the law are intimidated? Or even more surprising, afraid?

    In terms of our basis, democracy is the ultimate foundation. democracy, which is in it’s own form, power. Government officials are thus trusted with this power, to be just and honour the law.

    In this article, it is clearly understood that we have placed our trust in the hands of people who are demeaning the nature of our laws, for personal endeavours or to obtain good will from the President.

  • C.J. Joubert

    I CALL CORRUPTION! Blatant corruption! Plain Jane, chip off the ol’ block corruption!

    How could it be anything else in a country renowned for ‘striving for equality’ yet, as in the novel by George Orwell and subsequent film, “All animals are equal, but some animals are more equal than others.”? Here – in South Africa – the president (animal number 1) is more equal to the rest of us (animals number 2 through 53 million). It is evident that Pres. Zuma has lied to his administration about many aspects of the Nkandla saga and despite the Public “Protector’s” best efforts, not ALL of these lies can be swept under the ever-mounting rug as just another “bona fide mistake.”

    The Public Protector Act renders the following a criminal offence (according to the article): “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, as well as to refuse to answer questions duly put to that person by the Public Protector about an investigation”. This alone is grounds to criminally charge Pres. Zuma as he has not provided all the necessary documentation, nor has he fully answered, or even attempted to answer, all the questions posed to him by the Public Protector (with reference to another article by Mr Pierre De Vos, Extract from Nkandla Report: How Zuma stymied investigation). The
    inconsistencies in the report lead me to think that the Public Protector is
    actually a private (interest) protector.

    I further opine that Pres. Zuma will ‘stymy investigation’ until after the upcoming elections as to not lose the vote of those he has successfully mislead in the past.

    Nkandla will fit nicely in the ever-expanding trophy case of political scandal and South Africa’s egregious degeneration into corruption and cronyism. The 1999 Arms Deal (partly resulting in the trial of Schabir Shaik), Travelgate, docket-tampering (particularly in relation to Tony Yengeni’s arrest for drunken driving in 2007), the 2010 conviction of Jackie
    Selebi for bribery. The list seems endless, but my internet bundle isn’t…


  • Michelle Uys

    The Public Protector is self explanatory, as for its name. Therefore they should be looking into the matters of the president, fully, and not to a degree which makes people question their judgement. Since the Public Protector is dealing with the president, they should make their main focus on this case. The President is someone to be looked up to and if a half-hearted investigation is launched into an accusation this big, then how are we to trust any investigation by the Public Protector? As for the criticisms against the Public Protector, it is scary to think that reading a report on an issue can easily be mistaken for the truth.

  • nicole 14393655

    The Public Protector’s report on Nkandla has made it clear that the President is guilty of spending state money negligently. The legislation used by Mr Naidoo is incorrect given the situation. Thus to try and defend the President with that legislation is pointless. The loyalty shown to the President id quite touching but in the bigger piccture it is unsettling. It makes me wonder why they are showing him loyalty. The consequences this could have for the President in the future is a scary thought. What worries me more is that the Public Protector has the power to make the President answer her questons and has chosen not to use it. Her job is to protect the public’s interest not to protect government from public scrutiny. President Zuma puts government officials out of office every year for being corrupt. We as the public should put corrupt leadership out of office as we are the ones who put them there in the first place. The lack of “backbone” from the president is amazing. We as a nation deserve leaders who make mistakes but apologise for it and right their wrongs. This unethical and negligent behaviour from our President and the parties involved has taken our country back a few steps. Lastly our only hope is that the delay from the Public Protector to use her full powers to get answers to questions posed by her, the public and government is her way of doing a thorough investigation and ensuring that these questions are finally answered.

  • Mbal’entle LoveChild Languza

    After the deficiency observed in the Nkandla Report done by public protector Thuli Madonsela a couple of weeks ago. It comes as no surprise the blatant disregard of criticism, opinions or the voices of the masses by relevant authority. If they are able to act in such immorality so conspicuously then what weight could a critic possibly have. The most alarming facts about the report disclosed in this article are the various incriminating actions carried out by the president at no consequence. The presidency and the executive, public protector Thuli Madonsela being no exception have not shown competency from the beginning of this debacle. The president has thus been able to build a R246 million private residence with state resources, without having to legitimately answer for his actions or to satisfaction of the public.

  • GavinBotha ‘14063566’

    With the vast amounts of criticism raised with regards to the Nkandla Report, it has been showcased publicly that many faults appear
    within the report itself. The further mentioning of the critics making mistakes while criticizing the Nkandla Report leaves one flabbergasted at how the critics focused merely on the technical aspects of the report rather than the seriousness of the allegations apparent within the report itself.

    Furthermore, the current acting president’s lack of adherence
    to his constitutional obligations is an upsetting indication of how he goes about ruling our democratic country. Not acting in a transparent manner leaves us wondering how many skeletons there are hidden in our president’s cabinet that we are unaware of.

    Moreover, that he allows his hand-picked puppets to pull
    their own strings and without question, is yet another disconcerting fact. In so doing, he is not complying with the constitution as he is the final deciding factor in every choice that has an effect on the use of state resources. As president, he ultimately needs to be held individually and collectively accountable for the actions of his government.

    The people of our beloved country need to fall into a realization of their power, rather than to devote it to the current executive capacity, whom so obviously abuses it.

  • 11174049 M.N

    This report cleary indicates the corruption that is taking place by government officials. With Jacob Zuma being our president he is supposed to make sure that everything he does is in accordance with the law. “He 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 a man representing the country I feel you should be as transparent as possible,and adhere to the rules just like everyone else and if you break the rules you should be punished just like any normal human being. The public protector’s lack of affirmitive action is another indication that if you are wealthy and well known in South Africa you can get away with a lot in this case misusing public funds. Mr Naidoo’s allegation of plagiarism was unnessessary, given the fact that it could not be sustained. SECTION 2 places a set of legal rules on the president, with that said he contravened a few of those rules and should be punished accordingly.

  • Fanu Steyn

    Dit lyk vir my of geskiedenis die gewoonte het om hom self te herhaal want voor die verkiesing in 2009 is die korrupsie aanklagtes teen Pres. Zuma weer herstel maar ten spyte daarvan het die ANC gewen.Ek is van mening dat ons baie bly moet wees dat die openbare beskermer wel n verslag opgestel het waarin sy die korrupsie van persone in gesags posisies blootstel.Sy het wel n paar van haar voorregte volgens die Openbare Beskermers Wet nie gebruik nie maar sy het ten minste die president se optrede in verband met Nkandla bevraagteken.Ek voel ook dat die media deeglik moet navorsing doen voordat hulle enige aantuigings maak. Wat vir my egter skokkend is , is die feit dat die president leuens aan die nasionale vergadering vertel, dit laat my weereens net die integriteit van die president bevraagteken. Ek hoop hierdie verslag maak die oe van die kiesiers in die verkiesing oop…

  • Kyle Grunewald – 14094925

    I find the fact that not only the President, but also the
    Public Protector are both failing to perform within their specified office
    deeply concerning. Firstly the President, abandons his legal duties and misuses state funds for personal gain, but then the public protector, who is meant to protect the interests of the state and it’s citizens, clearly fails to do so. How are the citizens of South Africa expected to uphold and comply with the laws, when not even the president of the republic or it’s public protector are able to do so? The performance of the President and the Public Protector clearly highlight the major issues of corruption and incompetence within the government.

    The criticism of the report further concerns me, due to the blatant disregard for the facts. Mr Naidoo clearly had an alternative agenda when making completely biased and unsubstantiated comments with regard to the report.Comments such as Mr Naidoo’s amount to nothing more than false claims and propaganda, attempting to remove the president from the spotlight.

    I can only hope that the national outrage and pressure being created by the media, might force the public protector to perform her stipulated duties and finally get some answers from the president or force him to deal with the consequences of withholding said information.

  • Nqobile Van Der Madida

    Is it not ironic that this report comes right before the
    elections? Personally i think that as a a country we should consider the well
    being of our president, i.e him having a proper place to stay at. look at the
    president of America, the status of the white house, Nkandla is not close to
    that(the white house). with this in mind, is it not our duty as a country to
    take care of our president, so that he too, can represent us properly to other
    countries. In response to Pierre, i understand the frustrations of the Public
    Prosecutor not taking action, not getting warrants and so forth, however, the
    Public Prosecutor has to thread very carefully with this matter, it took her
    ages and even beyond the deadline for her to release the report, why should she
    be rash to take steps on this matter.

    Another response to your argument Pierre, this is a
    democratic country, no one, not even the president himself, is allowed to be
    forced to do something. In terms of section 7(4) that you have quoted, has
    there been a specification or deadline as to when documents and answers are to
    be given? because if that is not so, i think Mr President should be given time
    to compile his documents and seek legal (appropriate) advice before doing what
    has been asked. Mr President did not in any way say he was not going to give us
    answers. it just so happens that it won’t be now.

    What happens to those that have judged that the president
    has wasted state money without full proof and judgement from the court? What
    happened to being innocent till proven guilty, why should they be let Scott

  • Nqobile Van Der Madida

    what exactly happens to those that cross Zuma’s path? Are we now saying that, nothing is done to Zuma because we, including the legal systems put in place fear him?

  • Nqobile Van Der Madida

    where do we draw the line between critisising and accusing without concrete evidence and court rulings being brought foward?

  • Else

    Even though it does seem that Zuma has to be guilty to some extent in the Nkandla ‘scandal’, the Nkandla report does warrant some criticism.

    If Zuma is as guilty as is commonly put forth, then why is the Nkandla report insufficient to bring us to some kind of conclusion? For example, Zuma is allowed to leave many questions unanswered – ones that might have provided substantial evidence.

    Such a lack of information from Zuma manifested itself in his avoidance of the correct legal procedures as well as the lack of evidence he provided for the investigation.

    On the one hand it is of concern that Zuma is unable to convincingly maintain his innocence and on the other one, one wonders how in depth and thorough the Nkandla investigation was to have left such gaps.

  • Kyra South (14022304)

    On a continent where there are few truly democratic
    countries, it is essential for South Africa to uphold its democracy and
    constitutional supremacy. The Public Protector’s
    Nkandla report is therefore a crucial document as it in theory should prove to
    not only South Africa, but the entire African continent, that South Africa is
    keeping to its 1994 democracy by showing that not even the President of the Republic
    is above the South African justice system. It takes an incredibly brave Public Protector
    to investigate the president of any country, and South Africa is no exception. But
    one has to wonder what political interference, real or perceived, the Public Protector
    may be facing for her to not to compel Zuma
    to comply with the law by not exercising her right to obtain a search and
    seizure warrant for Zuma’s Nkandla homestead. One also wonders whether by not fully
    enforcing those rights if that will impact on the credibility of South Africa’s
    democracy and the integrity of legal processes.

  • Graham Mathews

    It is evident that the public protector did not perform her duty efficiently, as there were several mistakes made and areas that the Public Protector did not delve intoenough, thus the criticism in the report. Firstly, it can be said that in a country where there is so much poverty, it is important that South Africa resources are used economically and efficiently, so that these peoples second generation rights, such as the right to reasonable housing, can be fulfilled by the state.

    This therefore raises a concern when the president uses the taxpayers money, who trustingly pay tax so that the people in the countries standard of living can be improved, find out that the president is using this money to his own benefit, instead of trying to improve the people of South Africa’s standard of living.It is the one of the duties of the public protector to investigate the improper use of the public’s money and expose corruption within the government.

    This raises a concern because if the public protector was unable to investigate the use of the public funds on the large scale construction of Jacob Zumas house then the effectiveness of the public protectors responsibility to expose corruption within the government may be questioned.

  • Medina 13135661

    We should be able to have full faith in our public protecter and that she knows well enough what procedures need to be done when investigating something. We shouldnt be hearing that she let the President of the hook by allowing him to get away with unanswered questions. I must say im very worried

  • Medina 13135661

    Reading this article leaves room for so many unanswered questions.

    1) How does it make sense that our president , head of executive authority can refuse to abide by the law and everyone else is expected to follow the laws?

    2) Why was there no legal action taken on the fact that President Zuma didn’t answer the questions requested by the Public Protector.

    3) Is this not the exact thing our public protecter should be investigating thoroughly to make sure we are protected from the governments abuse of power?

    4) why is our government not operating openly and with transparency so that we can prevent such situations.

    There is so much information being held from the public so much uncertainty.
    After this many scandals involving president Zuma isn’t it clear that we can’t trust him even if he claims to not have known about tax payers funds being used ?

  • Mahdiyyah Patel(14024706)

    The Public Protectors’ report most definitely needs to be criticized. The lax manner in which she carried out the investigation and the questions she let go unanswered, creates some doubt in the authenticity of the report. It also makes one question just how just our legal system is.

    However, what is even more sad is how blind the the masses are.Even the educated masses.Many,like the ATTORNEY Mr Naidoo will continue to defend the President despite his obvious guilt.This is not igorance and it is not because they didn’t read the report.This is politics.And in politics,loyalty goes a very very long way.I would know.Being an undying ANC supporter,i will defend the President no matter what. But enough is enough.R246 million is alot of money that could have changed the lives of many.

    Mr Naidoo’s article brought tears to my eyes.Not from sadness but from laughter.Despite it having made me laugh,it also highlights two very important facts.Firstly,no matter what,the ANC supporters will remains loyal to the black,green and gold flag as well as the man who represents it.And secondly ,they will defend the President even if they are ridiculed

  • Nelisiwe

    12032124NM- This Nkandla report indicates to us that the President does not take value in what is happening and does not care to respond to the people. People are waiting for clarification from him about the report. Failure to respond about the report shows lack committment to his work and position. By keeping quiet, i wonder if the President is waiting for the buzz of the report to blow over??.

  • Nelisiwe

    The President failing to respong to the Nkandla report shows to us that he takes no interest on the allegations made. His silence on the report cares to make us thing that maybe he his hiding something that he wishes not to be revealed to the public. This silence will cause the President to loose votes on the upcoming election. In addition, his silence will result in people loosing trust and respect in the president.What country will we be living in if we cant trust our president and have no respect for him?.

  • Belinda Gerber #12020533

    This Nkandla saga has really opened the eyes of most people in South Africa. It made people realize that our president, Jacob Zuma, is definitely not above any laws. The Public Prosecutor had every right to report the president on his wrongdoings and trying to let justice be served. In my opinion the public prosecutor was only her job, but I think that she should have been more successful in her way of doing it. There are a few laws and acts against the president, to support her arguments, but it’s very difficult when the president is non compliant or has no comments about that. He cant justify any of his actions and doesn’t care what happens to the public’s money.

  • Onalenna Matshego

    The report can be criticized for many things…including the fact that in some people’s opinion the public protector was to leniant on the president but other just comment without even checking if what they are saying can be backed up…it makes you question their morals because they are willing to just write such nonsense even if it affects people’s perception of them as journalists and it makes you question the publications that publish such things. They want to stay in favour with the ruling party at whatever cost without thinking about how the public will percieve it. All for a little funding

  • Antonie Klopper

    Ek twyfel dat dit ‘n groot verskil gaan maak , aangesien meeste van die ANC se ondersteuners sommer sonder om eers daaroor te dink steeds hulle steun vir Zuma wys by sy verkiesingsrontes(na die Nkandla verslag die lig gesien het). Die stank van sy lee beloftes hang oor die arm gebiede in hierdie land van ons. So Fanu ek hoop ook so maar ek twyfel…

  • fatima

    11103788-This article gives rise to many questions to normal people who do not have a vast background of law in depth. What does all this mean to the average man on the street? How do we have faith in the public protector? According to the above article the public protector did not go to the extent of demanding answers of which she was by law allowed to do so. Does this mean she is incompetent in what she is doing or was this done with a different motive one that actually logically points to protecting the public? I do not know, as these questions can only be answered by her. The fact that Zuma is not willing to take responsibility for using R246 million of public funds is already immoral and unethical. as a leader you should lead by example. Back to the effects of the public protector not demanding that the funds be paid back, this robs the well-being of the nation of R246million or the education of the nation and even improvement of health facilities. If you do not have the funds to pay a bank back for a bond you took out your house is sold in order to do so; so why not do the same? As for Mr Naidoo its as if he had no grounds for justification on accusing the public protector with what was mentioned in the above article, yet he did so. Which was rather shocking for all readers.

  • 11123185

    There are similarities between a president of a country and a CEO of a corporation. It is only magnitude and scale that differentiates the one from the other. Both have responsibilities to their stakeholders in terms of good governance and compliance. The president of South Africa is required to fulfill their obligations in terms of the South African Constitution and the CEO of a corporation, their fiduciary obligations.

    If a CEO had not fulfilled their fiduciary obligations, behaved in a manner that could be construed as unethical or involved in any situation where a potential conflict of interest exists between personal and company interests, they would be immediately summoned to appear before the board. The board could demand their resignation or they would gracefully step down themselves. There are clear legal consequences and liability.

    The findings of the Nkandla report clearly demonstrate that the president has been lax in all the examples cited above. Why should he be treated any differently? Why should we as stakeholders expect any less just because it is the president? Does it make it okay? This sort of behaviour demonstrates a clear disregard for the people, the stakeholders and the most ‘sacred cow’, our Constitution. The office of the president is the ultimate office that should be respected, respected because it should be above reproach. They should be leading from the front like any good CEO does. They lead by example, from the top down. It is by leaders doing exactly that, leading, that the moral compass of our culture here in South Africa could be adjusted.

    The Constitution was formulated to ensure that all citizens are looked after and treated the same. Section 9 of the Constitution provides for equality but here we see how one rule is applied to one person and
    not equally to another. The law should apply equally to everyone and it should not make any difference whether you are a CEO of a corporation or the president of a country. Why should we as citizens expect differences?

    The Public Protector had the law on her side. If you are required by law to comply, you have to comply. You do not have an option.
    The president was treated in a different manner when he failed to provide the evidence of his alleged bond. It all goes back to good governance and compliance. He was required to comply and he did not.

  • Nina Robertson-14072000

    It is extremely disappointing to read this article. One can go as far as to say that it is shameful to comprehend just what is happening in an already inexcusable series of events. What is hard to decipher is what the public Protectors motive really is. Is this a case of complete innocent oblivion which, just to be clear is no excuse whatsoever considering you would think that at least the Public Protector would hold some sort of stringent power amongst others or something somewhat resembling that or is this really an attempted to along with Mr Naidoo delude the public from a corruption filled nightmare as Pierre says.
    What seems to be most shocking however is the fact that Mr Naidoo can make such ridiculous statements and wildly reaching accusations that can be debunked so easily. President Jacob Zuma is blatantly breaking the law before the Public Protected herself and less than nothing is being done about it. Here we have an example of three seemingly influential people who are committing one discrepancy after the next. The question is, do we do something about it, or do we wait for them to break themselves?

  • Nina Robertson-14072000

    It is extremely disappointing to read this article.
    One can go as far as to say that it is shameful to comprehend just what ishappening in an already inexcusable series of events. What is hard to decipher is what the public Protectors motive really is. Is this a case of complete innocent oblivion which, just to be clear is no excuse whatsoever considering you would think that at least the Public Protector would hold some sort of stringent power amongst others or something somewhat resembling that or is this really an attempted to along with Mr Naidoo delude the public from a corruption filled nightmare as Pierre says.
    That being said it is not so much so that the Public Protector at least at some point was trying to bring justice back into the government. Did she go about it the right way? perhaps not.
    What seems to be most shocking however is the fact that Mr Naidoo can make such ridiculous statements and wildly reaching accusations that can be debunked so easily. Never mind the unethical factors behind it all, it just seems so unprofessional and like child’s play in terms of what they are trying to get away with here and in m opinion to no avail. President Jacob Zuma is blatantly breaking the law before the Public Protected herself and less than nothing is being done about it. Here we have an example of three seemingly influential people who are committing onediscrepancy after the next. The question is, do we do something about it, or do we wait for them to break themselves?

  • Dr. M. Adam Human Rights Forum

    Prof De Vos. You make some good points in this article.