As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Details of Request to Public Protector to investigate alleged breaches to the Executive Members Ethics Code by President Jacob Zuma
Pierre de Vos
1.1 In terms of section 6 of the Public Protector Act no 23 of 1994 the Public Protector has the jurisdiction to investigate any complaint by any member of the public in respect of any matter which the Public Protector has jurisdiction over. The Public Protector has the jurisdiction to investigate alleged breaches of the Executive Ethics Code (Proc. No. 41 of 28 July 2000: Government Gazette No. 21399), passed in terms of the Executive Members’ Ethics Act, 1998 (Act No. 82 of 1998). Section 3, read with section 4 of the Executive Members Ethics Act, confirm that not only members of the legislature are entitled to lodge complaints about alleged breaches of the Code as section 4(3) states that: “Nothing in this section may prevent the Public Protector from investigating any complaint by a member of the public in accordance with the Public Protector Act, 1994 (Act No. 23 of 1994).”
1.2 I therefore submit this request to the Public Protector to investigate alleged breaches of the Executive Members Ethics Code. I do so as a private citizen as well as a Constitutional Law Professor with 18 years standing with a keen interest in preserving the integrity of the National Assembly as well as the Office of the President, both constitutional institutions of vital importance for the functioning of our democracy. I set out the relevant facts below before indicating which aspects of the Code might be implicated and which questions I require the Public Protector to answer.
2. The Factual background
2.1 On 15 November 2012 President Jacob Zuma told the National Assembly (Source: Hansard, Unrevised transcript — see also “Full transcript of Parliamentary exchange with President Zuma on Nkandla scandal” at http://constitutionallyspeaking.co.za/full-transcript-of-parliamentary-exchange-with-president-zuma-on-nkandla-scandal),amongst other things that:
“My residence in Nkandla has been paid for by the Zuma family. [Interjections.] All the buildings and every room we use in that residence were built by ourselves as a family and not by government. [Applause.] I have never asked government to build a home for me, and it has not done so. The government has not built a home for me.”…
“We, as the Zuma family have built our home. [Interjections.] Let me give you the background. What, for example, has been shown on television — which has caused a lot of hullaballoo for many people — are my houses, built by me and my family.”…
“I engaged the banks and I am still paying a bond on the first phase of my home. [Applause.] Even at that time, there were many allegations. If hon members remember, it is not the first time that my home has been paraded on television. Those rondavels were paraded accompanied by lots of allegations. Yet, I am still paying a bond to this day.”…
“A wrong impression has been created in the country, that the government has built a home for me. That is not true. People are speaking without knowing, saying I have spent so much of the government’s money. I have never done so. [Applause.] It is unfair, but I do not want to use harsher words, because you believe that people like me cannot build a home.”…
“What has government done? There are two different things: my homes that are built by me and my family, and the security features that the government wanted to attach to satisfy their own requirements. These are basically in my home, in the main, fencing, bullet-proofing windows — not all the windows, specific ones — and the bunker.”…
“What is shown is my house that I have paid for and it is a lie that it has been built by the government. It has not been built by the government.”…
“The Zuma family has built its own home for its own comfort. They have not asked anyone.”…
“I paid for my five additional houses to the rondavels I talked about.”…
In other words the President assured the National Assembly that the Zuma family had built his private home, which the Zuma family inhabit at Nkandla, using its own funds as well as a bond obtained from a bank and which is still being paid off. Neither the state nor anyone else (except the bank via a bond) contributed to the financing of the non-security related building at the President’s Nkandla homestead.
2.2 However, on 18 November 2012, the City Press newspaper reported that (see “Zuma has no bond” accessed at http://www.citypress.co.za/Politics/News/Zuma-has-no-bond-20121117): “There is no bond on President Jacob Zuma’s Nkandla homestead, as the president claimed in Parliament this week. City Press can reveal that no bond is registered against the Zuma family’s property, titled portion 27 of reserve 19 of farm number 15 839, Nkandla.”
2.3 On 20 November 2012 the Presidency issued the following statement (see “President Zuma does have a home loan”, accessed at http://www.thepresidency.gov.za/pebble.asp?relid=7263): “The Presidency has noted weekend newspaper reports implying that President Jacob Zuma may have misled the National Assembly when he said he had a mortgage bond on his residence in Nkandla. We reaffirm that President Zuma does indeed have a bond on the residence with one of the national banks and he is still paying it off monthly. We urge the media to respect the agencies that are investigating the various aspects of the security enhancements at the residence as speculations and rumour-mongering will not assist the process.”
2.4 The Presidency soon followed this statement up with another statement later on the same day, after requests for proof of the bond was requested by several members of the media. In the follow-followup statement the Presidency stated that (see “Proof will be provided”, accessed at http://www.thepresidency.gov.za/pebble.asp?relid=7268): “We have noted requests for proof of the evidence of a mortgage bond for the first phase of the Nkandla residence as mentioned by President Zuma in the National Assembly last week. The evidence will be readily made available to an authorised agency or institution empowered by the law of the land. It is not being released to media to respect the privacy of the President as well as customer-institution confidentiality.”
2.5 After these statements were issued, several newspapers speculated that the bond in question was the one mentioned in the Schabir Shaik fraud and corruption trial. In May 2005 Judge Hillary Squires found that businessman Schabir Shaik was involved in making corrupt payments to Zuma. Buried towards the end of the long document were a couple of phrases that is of importance for the request: “ … [I]t is common cause, or amply proved, that it was [Vivian] Reddy who eventually arranged for the payment of the bulk of the cost of Zuma’s Nkandla home for it was Reddy who arranged the bond … by the time Reddy applied for the bond on Zuma’s behalf … The first application for the Zuma bond was for R650 000 … “ The high court finding, which has never been overturned, does not name First National Bank (FNB), but the indictment it is based on does. Zuma was granted a “bank loan obtained from First National Bank”, the National Prosecuting Authority said, later referring to it as “a home loan bond” and “the FNB bond”. But this week FNB said that could not be true. “FNB does not grant home loans to individual applicants for housing developments that are carried out on tribal land, as the properties are not held under separate title. FNB cannot register a bond over the individual homes,” said Jan Kleynhans, chief executive of FNB Home Loans, in a written response to questions. “Legally, people who currently live on land owned by a tribal authority have no claim to ownership of the land.”
2.6 This means that there is no clarity on whether the non-security related building work at President Zuma’s Nkandla home was indeed financed by President Zuma and his family as President Zuma told the National Assembly or whether any other benefactor or benefactors might have contributed to the financing of any of the non-security related upgrades at Nkandla. Neither is there clarity on whether a bond was ever registered over the Nkandla home and whether President Zuma is indeed still paying off that bond as President Zuma told the National Assembly. The Presidency has said that it would readily make available the proof of the bond “to an authorised agency or institution empowered by the law”. Such an agency is the Public Protector. It is therefore imperative that the Public Protector investigate these matters in order to clear up any possible misconceptions or confusion to confirm that the President did not mislead the National Assembly in contravention of the Executive Members Ethics Code. Such an investigation will also allow the Presidency to provide details of any bond registered over Nkandla to the Public Protector as suggested by Mac Maharaj in his statement declining to provide such details to the media, thus striking the correct balance between the need to respect the privacy of the President with the need for accountability and transparency.
3 Relevant Provisions of the Code
3.1 Section 3(1) of the Executive Members Ethics Act 82 of 1998 requires the Public Protector to investigate any alleged breach of the code of ethics on receipt of a complaint. Section 3(2) of the Act requires the Public Protector to submit a report on the alleged breach of the code of ethics within 30 days after receipt of a complaint. Section 4 of the Act states that the Public Protector must investigate, in accordance with section 3, an alleged breach of the code of ethics on receipt of a complaint by (a) the President, a member of the National Assembly or a permanent delegate to the National Council of Provinces, if the complaint is against a Cabinet member or Deputy Minister. Section 4 confirms that the Public Protector may also consider complaints about such breaches from ordinary members of the public.
3.2 Section 2.3 of the Code of Ethics states that Members of the Executive may not:
(a) wilfully mislead the legislature to which they are accountable;
(b) wilfully mislead the President or Premier, as the case may be;
(c) act in a way that is inconsistent with their position;
(d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person;
(e) use information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;
( f ) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;
(g) receive remuneration for any work or service other than for the performance of their functions as members of the Executive; or
(h) make improper use of any allowance or payment properly made to them, or disregard the administrative rules which apply to such allowances or payments.
3.3 Section 3.1 of the Executive Members Ethics Code states that a member must declare any personal or private financial or business interest that the member may have in a matter:
(a) that is before the Cabinet or an Executive Council;
(b) that is before a Cabinet Committee or Executive Council, on which the member serves; or
(c) in relation to which the member is required to take a decision as a member of the Executive.
3.3 Section 4.1 of the Executive Members Ethics Code further states that a member may not solicit or accept a gift or benefit which:
(a) is in return for any benefit received from the member in the member’s official capacity;
(b) constitutes improper influence on the member, or
(c) constitutes an attempt to influence the member in the performance of the member’s duties.
3.4 Section 5.1 of the Executive Members Ethics Code further requires every member of the Executive – including the President – to disclose to the Secretary particulars of all the financial interests, of the member; and the member’s spouse, permanent companion or dependent children, to the extent that the member is aware of those interests. Section 6 of the Code sets out the various interests that must be declared, and these include, inter alia, shares and other financial interests in companies and other corporate entities; sponsorships, including a description of direct financial sponsorship or assistance from any source other than the member’s party which benefits the member in his or her personal and private capacity and the amount or value of the sponsorship or assistance; gifts and hospitality other than that received from a spouse or permanent companion or family member, including a description, including the value and source of any gift with a value of more than R350; gifts received from a single source which cumulatively exceed the value of R350 in any calendar year; hospitality intended as a personal gift and with a value of more than R350; and hospitality intended as a gift and received from a single source, and which cumulatively exceeds the value of R350 in any calendar year; benefits, the nature and source of any other benefit of a material nature; and the value of that benefit; land and immovable property, including land or property outside South Africa, a description of and the extent of the land or property; area in which it is situated; and nature and value of interest in the land or property.
4 Request to investigate alleged breaches of the Executive Members Ethics Code
4.1 Given these facts and the legal framework set out above, I request the Public Protector to investigate the following possible breaches of the Executive Members Ethics Code with a view to provide clarity to the South African public, to confirm and protect the dignity of the National Assembly as well as the Office of the President.
4.1.1 To confirm that President Zuma did not breach section 2.3(a) of the Code of Ethics and did not wilfully mislead the National Assembly when he told the National Assembly that he and his family built all the non-security related features at Nkandla and that neither the State or any other individual, company or group was involved in this matter.
4.1.2 To confirm that President Zuma did not breach section 2.3(a) of the Code of Ethics when he told the National Assembly that President Zuma and his family paid for all the non-security related building work undertaken at Nkandla in 2000 as well as in 2012. In order to establish this the Public Protector will be required to confirm that no other person or entity contributed to the cost incurred with the building of the original Nkandla homestead as well as all the non-security related Nkandla building work conducted over the past year.
4.1.3 In the event that it transpires that President Zuma and his family did not pay for all the non-security upgrades at Nkandla themselves and if it emerges that other parties contributed to the cost of these upgrades, to confirm that President Zuma is not in breach of sections 3.1, 4.1 or 5 of the Executive Members Ethics Code in that there is a conflict of interest that might have arisen as a result of benefits received from private entities or that any gifts or other financial benefits were not declared as required by the Executive Members Ethics Code.
4.1.4 To confirm that President Zuma has indeed registered a bond with a bank over the Nkandla home and that he is still paying off the bond,as he told the National Assembly.
5.1 In the light of the controversy over the funding of building work at Nkandla, the uncertainty about who paid for the non-security sections of the building work at Nkandla and whether a bond covered the cost of these upgrades, and given the fact that it would not be in the interest of the President, the National Assembly and South Africa as a whole for uncertainty to remain about these issues, I contend that an investigation would be appropriate and indeed in the interests of all parties concerned. As the Presidency declined to provide details of the bond but indicated its willingness to provide details to the appropriate legal authority such as the Public Protector, as the Public Protector is already investigating the alleged use of public funds for security upgrades at the Nkandla home, but as the existing investigation is not focusing on that part of the cost not carried by the state, such an investigation is appropriate. In the event of the Public Protector finding that the President did not wilfully mislead Parliament when he stated that the cost of have all non-security upgrades are being paid by the President as his family and that a bond is indeed registered over Nkandla to help pay for the upgrades, the President’s integrity and the office that he holds) would be preserved and protected while assurances to this effect will also help to protect the integrity of the National Assembly in the eyes of voters who need to have confidence that the National Assembly is respected by members of the Executive and that it is not being misled. In the event of the report finding that other sources of funding contributed to the Nkandla upgrade, the Public Protector will then also be in a position to determine whether these sources were declared as gifts or other financial benefits, strengthening the regime which requires members of the Executive to declare their financial interests.
5.2 It must be pointed out that this request differs from the ongoing investigation into the alleged use of public funds to upgrade security at the Nkandla homestead. This request deals with the use of private funds and whether these private funds came from the President and his family, from a bond, from other sources or from a combination of the above and if it came from other sources whether this was declared by the President as required by the Code. The President has a legal duty not to mislead the National Assembly. There can be no objection to an investigation that once and for all will confirm that the President did indeed not mislead the National Assembly as suggested by some.BACK TO TOP