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.
President Jacob Zuma gave an emotional performance in Parliament this week when questioned about the R250 million renovation at his Nkandla compound. Confirming the existence of a bunker at his Nkandla home (and even quoting former President PW Botha), Zuma claimed that his family had paid for the entire cost of his Nkandla residence. The only problem is that this claim cannot be true.
Zuma did not dispute the claim that almost R250 million of public funds were used for various buildings and renovations at his Nkandla home. Neither did he dispute the fact that the Ministerial Handbook does not allow security upgrades at the private residence of a public official (whether used as an official residence or not) for more than R100 000.
All the buildings and every room we use in that residence, was built by ourselves as family and not by government. I have never asked government to build a home for me, and it has not done so. Government did not build a home for me.
He said he was still paying off the bond for the five family buildings in the compound. What President Zuma did not say is that his family can hardly be said to have paid for the full cost of his Nkandla home. As judge Hillary Squires found when he convicted Schabir Shaik of fraud and corruption, several other sources initially bankrolled the Nkandla building project. Squires pointed out that in 2000, as a certain Mr. Malengret was undertaking work at Nkandla, payments to the builders:
came in odd sums and from odd sources. On 14 August 2000 two cheques drawn by a Nelspruit business, which turned out to be owned by Mrs Ngubane, and totalling R90 000, together with a cash payment in the sum of R10 000, was deposited into Malengret’s bank account. That was the first payment he received. On 4 October another cheque for R40 000, drawn by the same Nelspruit enterprise, and on 18 October some unidentified person made a cash deposit of R50 000, again both being made into Malengret’s bank account. So by 5 October, when the next incident involving Shaik occurred, Malengret had done about R226 000 worth of construction, for which he had only received R140 000…
There is therefore a long history of others paying for building work at Nkandla. However, before he became President, the South African public never carried the cost for the various upgrades at Nkandla. In October of that year Shaik learnt of the Nkandla project from Zuma himself. Squires noted that back in 2000 Shaik seemed to have been dismayed, if not shocked, when informed about the cost of the Nkandla project (maybe that is the source of Shaik’s terminal illness), asking Malengret if “Zuma (thought) money grew on trees”. For President Zuma, so it seems, money has always grown on trees — other people’s trees.
Back in 2000, when no more money was paid to him for work done at Nkandla, Malengret ordered building at Nkandla to be stopped. As the arms deal inquiry gained steam and as arms companies began to squirm under the pressure, Mr. Vivian Reddy, a Durban-based businessman, who also seems to have taken on the task of advising Jacob Zuma about his financial affairs, lent Malengret R50 000 to enable him to continue with the Nkandla project. A bond financed part of the rest of the cost of the initial Nkandla building project.
But, as Squires found, part of the cost was paid by an entity called Development Africa, in which the first part of a R500 000 a year bribe from Thompson (the arms deal company) was deposited. Squires found that Thomson had corruptly offered (the offer having been communicated to Shaik) to give a bribe of R500 000 a year, which was not legally due, to Jacob Zuma (who was by then the Deputy President), with the understanding that Zuma would use his position as Deputy President to assist Thompson and protect it from exposure for its part in arms deal corruption.
As Zuma has managed to avoid standing trial for his involvement in this scandal, we do not know if there is enough evidence to convict him for being party to the bribe. In the event, Thompson only paid R250 000 of this money, into an entity called Development Africa, which eventually paid for part of the building of the Nkandla home.
Thompson, Reddy and Ngubane, who all contributed to the building of the original Nkandla compound, are not members of President Zuma’s family. President Zuma’s claim that his family carried the entire cost for the building of Nkandla can therefore not be true. In fact, part of the cost for the original Nkandla building came from an arms deal bribe.
Incidentally, judge Squires had found that Zuma had met Mr Alain Thetard, a representatives of Thompson, at a meeting where the bribe was discussed. Zuma had to give a secret code (given to him by Shaik) to signal his agreement with the bribe arrangement, which he duly did. In response to a Parliamentary question by Raenette Taljaard, Zuma told Parliament: “I did not meet Alain Thetard on 11 March 2000 in Durban or elsewhere.”
As Squires had found, Zuma had indeed met Alain Thetard – but on 10 March 2000, not on 11 March of that year. In his sworn affidavit to the Pretoria High Court in August 2003 (made during his application to secure Thetard’s encrypted fax which is said to prove he solicited a bribe from Thetard) Zuma claimed even more emphatically about this meeting with Thetard: “I have repeatedly stated that I did not attend any such meeting”. Zuma was never charged with perjury, which (if the Squires judgment is to be believed) he committed when he denied in a sworn statement that he had ever met Mr. Thetard.
It might well be that President Zuma was completely candid when he claimed this week that his family contributed to the cost of the latest Nkandla upgrade. Such a contribution could have come from his salary, from a bank loan or from donations made by benefactors hoping to gain some influence with the President of the ANC and the country. Unfortunately, we simply do not know what is true, as President Zuma has not provided any evidence to back up his claims. This uncertainty could easily be remedied if Zuma was prepared to take the country into his confidence by providing documentary proof of such payments.
In the absence of such proof (and in the light of the secrecy around the State’s R250 million contribution to the latest Nkandla upgrade), it is impossible to say whether the latest claim is true or whether its veracity is on par with his previous claims that he never attended a meeting with Thetard. What is certain is that neither President Zuma nor his family can be said to have carried the cost for all the building work at Nkandla.
There are still many unanswered questions about the latest Nkandla corruption scandal. If Zuma is indeed the President of the country, why did he not stop the R250 million “security upgrade” at his house? Can security officials order the President what to do and what not to do? Is he so weak or unprincipled that he is incapable or unwilling to do what is right and legal? How on earth is it possible to spend R250 million on “security upgrades” when that money could build at least two or three palaces with gold fittings and marble floors?
These questions could easily be answered. All that is needed is for the Government to stop hiding behind a draconian piece of apartheid era security legislation, called the National Key Points Act. It would then be able to provide us with the exact breakdown of cost contributed by taxpayers to the Nkandla home and what it was spent on. Given the fact that we already know that money was used to build a bunker, install bulletproof windows, a lift and air conditioning as well as a gym, an astro-turf soccer pitch a hospital and two helicopter pads, there is no conceivable reason not to reveal how much we had paid for these luxuries. We already know what “security” measures were taken; we just do not know how much of our money (which could have been used to build new school libraries or pay for essential health care facilities) was wasted on each item.
Even if security was indeed a concern (which is a ludicrous claim), no one has ever been able to show how security could be compromised by revealing how much South Africans paid for all these “security upgrades”, which we already know exist. Unless, of course, what is being protected is not the security of the President and his family, but rather the ever-diminishing reputation of the President and the political party he fronts – if not leads.BACK TO TOP