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.
This is an extract from the Public Protector Report on the Nkandla scandal, setting out in detail how President Jacob Zuma delayed the investigation and failed to answer many of the questions posed to him. It seems that it is partly because of this failure that the Public Protector, being cautious to a fault, found that although President Zuma lied to Parliament he may not have had the intention to do so.
PART G: THE RESPONSES SUBMITTED BY THE PRESIDENT IN REPLY TO QUESTIONS PUT TO HIM DURING THE INVESTIGATION
6.77. On 29 January 2013, I wrote to the President to inform him of my investigation of the complaints referred to in paragraph 2 above. I specifically stated the details of the complaint lodged by Prof De Vos in connection with the statement that the President allegedly made to the National Assembly on 15 November 2012 that the development of the first phase of his private residence was financed by a commercial bank that secured a mortgage bond in respect of the property.
6.78. My letter also stated that:
You will be afforded an opportunity to respond in full to the allegations, once I am in a position to provide you with more detailed information regarding the matters concerned.
It would be of assistance to me to consider the merits of the complaint lodged by Prof De Vos, if you could request the Presidency to provide me with a copy of the registered bond relating to your private residence and any other relevant documentation and/or information pertaining to the funding thereof. Such documentation and information will, due to the nature thereof, be kept secure and handled with the appropriate discretion and confidence.
6.79. I received no response from the Presidency in respect of my request for information, despite having approached it again in this regard on 11 April 2013, 21 June 2013 and 19 August 2013. I also wrote to the President directly in this regard again on 29 July 2013, but received no response.
6.80. Eventually, I personally met with the President in connection with my investigation on 11 August 2013, a day before my inspection of the works implemented by the DPW at his private residence at Nkandla. I have made reference to my discussions with the President on certain aspects of the Nkandla Project under different headings in this report.
6.81. During our meeting, I also provided the President with a set of written questions that related to my investigation and in respect of which I required his response. The President undertook to provide me with a written response.
6.82. As no response to my questions was forthcoming, I approached Dr Lubisi, the Director-General in the Presidency, again requesting his assistance in this regard, on 26 August 2013.
6.83. A copy of my written questions with annexures had to be provided to the Presidency, at its request, on 27 August 2013.
6.84. Eventually, I had to write to the President directly on 16 September 2013 to again request his response to my set of questions.
6.85. My questions were as follows:
1. Did you or the Presidency request that security measures be installed at your private residence at Nkandla after you were appointed as the President in May 2009, as provided for in the Cabinet Policy on Security Measures at the Private Residences of the President, Deputy President and former Presidents and Deputy Presidents, dated 20 August 2003? If so, kindly indicate who made the request, when and how.
2. Were the measures that the Department of Public Works intended to implement at your private residence communicated to you by the Minister of Police, as contemplated by the Cabinet Policy? If so, what were your impressions of the proposed measures and did you formally consent thereto?
3. Where you at any stage informed of the cost of the proposed security measures? If so, who presented the cost to you, what was the amount, and how did you respond to it?
4. Your private residence was declared a National Key Point by the Minister of Police, in terms of the National Key Points Act, on 8 April 2010. According to the evidence obtained during the investigation you were notified accordingly by means of a notice (Annexure A) signed by the Minister of Police. Can you kindly confirm that this notice was served on you?
5. What was you understanding of the declaration of your private residence as a National Key Point in terms as your responsibilities as the owner?
6. Did you at any stage respond in terms of the notice by taking measures to secure your private residence, as required by the National Key Points Act and the notice? If so, what measures were taken?
7. From the evidence it appears that the Minister of Police acted on your behalf, as contemplated by section 3A of the National Key Points Act, when he had your private residence secured. Were you notified of this, as is required by the Act and if so how?
8. Were you ever advised by the Minister of Police that any part of the cost of securing your private residence as a National Key Point would be recovered from you? If so, when and how?
9. According to the evidence, you met with representatives of the Department of Public Works and the South African Police Service at you private residence on 12 August 2009, where you were briefed on the security measures that were to be installed in the three new dwellings that you were constructing. Is this correct, and if so can you kindly explained what transpired at this meeting.
10. The evidence obtained during the investigation also indicates that you complained on several occasions about the slow progress made with the implementation of the security project. Is this correct, and if so can you kindly explain the reasons for your concerns and how it was addressed?
11. According to the evidence, you requested the former Minister of Public Works, Mr G Doidge, to look into the delay. Is that correct? If so, did he report back to you and what were the nature of his reports?
12. Mr M Makhanya, the architect that you appointed in respect of your private construction on the premises, was also appointed by the Department of Public Works as the Principal Agent for the security project. Did he present you with the designs of the Department of Public Works’ security project? If so, can you recall which designs were presented to you and how you responded to it?
13. According to the documentation obtained during the investigation, former Minister of Public Works, Ms G Mahlangu-Nkabinde, informed you in writing of the progress made with the implementation of the security project, shortly after she was appointed, on 5 November 2010. (Annexure B) Can you kindly look at the copy of this letter and indicate whether you received it and how you responded to it.
14. Former Deputy Minister of Public Works, Ms H Bogopane-Zulu indicated during the investigation that she discussed the security measures with you. She also raised the possible apportionment of costs of the security measures between you and the state with you and requested a document to be prepared by the project team in this regard. The document was prepared and delivered to the Ministry of Public Works. (Annexure C) Can you please look at this document and indicate whether it was presented to you, and if so what your response was?
15. If the document was not presented to you, was the apportionment of costs ever discussed with you? If so when and by whom?
16. Did you ever enquire into it, and if so what was the response that you received?
17. Deputy Minister Bogopane-Zulu also indicated that she discussed the conversion of the fire-pool on the premises into a swimming pool with you and that you supported the idea that it could be used to teach children of the village to swim. Is this correct?
18. Kindly indicate whether you are aware of the reasons why the fire-pool was converted into a swimming pool and whether the additional and apportionment of such costs were discussed with you. If so, who discussed it with you, and what was your response?
19. The implementation of the security project resulted in the relocation of four households that were living on the site. Were you consulted in connection with the relocation and, if so, what was your response? Did you issue any instructions in this regard?
20. According to the evidence, you apparently indicated that you were opposed to more contractors working on the site when Phase 2 of the project commenced, that is the construction of staff housing, etc. Is this correct and if so why were you opposed to more contractors? Did you issue any instructions in this regard?
21. Deputy Minister Bogopane-Zulu further indicated during the investigation that you supported her idea that the military clinic should be designed in such a way that it could also be used by members of the community. What is your response to that?
22. It was also indicated during the investigation that you raised concerns about the bullet resistant glass that was installed in your houses. Is this correct and if so, can you kindly explain
23. A newspaper report alleged that two of your brothers, Messrs Joseph and Mike Zuma improperly benefitted from the security project when items that were destined for it were delivered at their houses. What is you comment on this allegation?
24. As indicated in my letter addressed to you on 29 January 2013 (Annexure D), I have also received a complaint in connection with a statement that you made to Parliament about the bond on the property concerned. I have repeatedly requested to be provided with the relevant documents to enable me to deal with this complaint. Are you now in a position to provide these documents?
25. Would you be willing to disclose the amount that you paid for the construction of the three new dwellings?
26. How often do you use your private residence at Nkandla for official purposes?
27. Is there any particular reason why you would prefer to use your private residence for official business rather than any one of the official residences that are available to you?
28. Did you at any stage enquire into the cost of the security project, which was obviously extensive? If not, did you not feel obliged to do so as the head of state and as a substantial amount of public money was obviously being spent?
29. How would you describe your involvement in the security project that was implemented by the Department of Public Works at your private residence?”
6.86. The President provided me with a response under a covering letter from the Acting Secretary of the Cabinet, dated 1 October 2013. His response was in the form of a statement, signed by him on 30 September 2013.
6.87. In the opening paragraphs of his statement, the President denied that he was ever apprised of the fact that his conduct formed part of my investigation.
6.88. He proceeded by explaining the location of his family homestead at Nkandla and the history of his occupation of the property. Of particular significance to the subject of my investigation, is the following extract of the President’s statement:
12 As the political environment stabilized in the coming years with the advent of our new democracy, I now felt more confident to effect improvements to the family homestead in order that it could cater for our needs more adequately.
13 I proceeded to engage a building contractor to effect the improvements to my homestead. Several new rondavels, each self-contained, were constructed.
14 These improvements were financed by a home loan obtained from one of the four largest commercial banking institutions in the Republic upon satisfaction of their collateral requirements. The property is still subject to a mortgage and I continue to meet my financial commitments in terms thereof.
15 In the ensuing years and as I began to play a leading role in government, I had to submit to the security protocols which senior government officials are subjected to. Static security was provided from the South African Police Services (SAPS), (sic) Ulundi, while protection services were provided from SAPS Eshowe.
16 This meant that additional rondavels were constructed on my homestead in order to cater for the accommodation of those police officials assigned for my protection, given the lack of infrastructure in Nkandla. In addition, a car port and storerooms were also constructed.
17 In 1999 I was appointed as the Deputy President of the Republic. As a consequence of my increased responsibilities in government I received a higher volume of frequent guests at my home in Nkandla. This, coupled with the fact that my family had grown over the years, my family and I decided to embark on fairly extensive and modern improvements to the property.
18 To this end we engaged contractors and commissioned the building of three new houses which would be developed in phases over additional neighbouring land which we acquired with the consent of the local chief.
19 The construction of the houses commenced under the direction of Minenhle Makhanya Architects.
20 In 2009 I was appointed as President of the Republic. Immediately upon my inauguration, members of the security cluster informed me regarding the result of the security assessment which attached to the office that I now hold, including my residence at Nkandla.
21 As President of the Republic I have the benefit of residences at Mahlambhandlophu in Pretoria, Genadendal in Cape Town and John Dube House in Durban, all of which I make extensive use of. Equally, I maintain my private residence at Nkandla.
22 Like most South Africans, I am particularly proud of my community and never miss an opportunity to go home to Nkandla-the demands of my work schedule permitting. I sometimes wish it otherwise, but I do not shed my status as President when I am at home in Nkandla. People continually visit me, seek my advice, support and counsel on a whole range of matters. Similarly, matters of government do not grind to a halt during these all too in-frequent visits to my homestead.
23 In the course of the engagements with the security cluster, I initially met with then Minister Doidge, senior SAPS officials and other government officials at my homestead in a consultative process regarding improved security due to my occupying the office of President of the Republic.
24 I thereafter facilitated a meeting between the same grouping of persons and Minenhle Makhanya Architects, the consultant who was already engaged with building work at my home so that there would be as little disruption as possible to the work already commissioned. Secure In Comfort A Report of the March 2014 Public Protector
25 From time to time I received briefings both formally and informally from the various Ministers engaged with the security enhancements although I was not intimately involved with the finer details.
26 At these briefings I expressed concern with what appeared to be inordinately lengthy delays which impacted on my family. Equally, I found some of the security features like the bullets-proof (sic) windows an excessive encroachment on my use and enjoyment of my property.
27 Regarding the rationale for the adoption of particular security features, I deem it neither prudent nor proper for me to comment, particularly where the Public Protector has had access to a range of Ministers and officials properly tasked with this responsibility.
28 The security upgrades are to be distinguished from the construction of buildings which provide infrastructural support for security personal (sic).
29 I take exception to the continued conflation of the security upgrades with the construction of buildings for the benefit of security personnel. Whilst neither were at my behest, the latter is directly attributable to the fact of my residence being located in a rural area with all the attendant challenges. Even people drawn from rural communities can play a role in the development of our constitutional democracy.
30 With regard to my address to parliament, I submit with respect, that insofar as it is alleged that I have misled parliament on the existence of my bond over the Nkandla Property, parliament is best placed to enquire into this matter should it so desire.
31 Likewise, it is not proper for me to account for alleged conduct of members of my family who are not dependents of mine. Transgressions of the law by whomsoever should be reported to the appropriate authorities.
6.89. As the President’s statement did not provide answers to most of my written questions listed above I replied to him on 8 October 2013, listing the outstanding responses that were required and stated that:
I regarded it as prudent to provide you with an opportunity to respond to these matters as part of my investigation and it would be appreciated if you could still consider doing so, to enable me to include your version of the events in my report.
As far as your response in respect of my investigation into the complaint relating to the statement that you reportedly made to Parliament pertaining to the existence or not of a bond over your property is concerned, you will recall that I raised this with you when I informed you of my investigation, in my letter dated 29 January 2013.
I indicated in my said letter that the concern raised by the complainant is the impression that you might have violated the provisions of the Executive Ethics Code by misleading Parliament. I also referred you to the public statement of the Presidency of 20 November 2012 that the information pertaining to your bond would be made available to “an authorized agency or institution empowered by the law of the land”. You will respectfully agree with me that this includes the Public Protector.
In addition to the normal manner in which I approach investigations, I relied on the commitment in the Presidency’s statement when I approached you with the request on this aspect of my investigation.
I accordingly wish to appeal to you to provide me with the relevant documents pertaining to the bond that you referred to. The information contained in these documents will be handled discreetly as it relates to your private affairs. All that I really need to verify in this regard is that the bond exists and that it relates to your private residence at Nkandla. Providing me access to the documents in the presence of your legal advisors or the Secretary to the Cabinet will also suffice in this regard.
6.90. In his reply, dated 24 October 2013, the President indicated that he required copies or excerpts of evidence, reports and documents that were referred to in my questions, before he could respond. He further stated that:
Regarding your request that I make available my personal bond documents for your perusal, I attach hereto the relevant transcript extracted from Hansard which bears out the following:
The Zuma family has built their own home;
The home has been there for a long time;
I engaged the banks and am still paying a bond on the first phase of my home;
I am still paying a bond this day.
Having regard to the content and context, it becomes abundantly clear that such bond relates to the first phase of the development and well before I assumed the office of President. As I understand, it does not relate to the period of your investigation nor does it shed light on any aspect thereof.
Accordingly, I hold the view that the disclosure you seek would be unnecessary.
6.91. I again regarded it as necessary to respond to the President to clarify my earlier requests. In my letter addressed to him on 29 October 2013, I reiterated that the complaint that I received in respect of the bond does not relate to the security measures that were installed and implemented at his private residence, but to the statement that he made in the National Assembly on 15 November 2012, the contents of which are contested. I explained that:
It was in order to clarify this issue that I requested you to provide me with access to the bond documents. As matters stand at the moment, I am not in any position to make a finding on the merit of this complaint and would therefore urge you to reconsider my request in this regard.
6.92. The President was also referred to the fact that a number of my questions do not refer to any evidence, reports or documents. In respect of questions that did relate to documents, I provided him with copies of such, which were also attached to my original questions and later resubmitted to his office. As far as the references to “evidence” were concerned, which only related to three of my questions, I indicated that it would be covered extensively in this Provisional Report, a copy of which will be presented to him for his comments. The President’s reply is still awaited.
6.93. The following excerpt of the Hansard that I was referred to by the President in his letter of 24 October 2013 is of particular significance to the matters considered during the investigation:
When I became the President, all of us in the family agreed to extend our home, as I was extending it. Then government came and said that it had to install security features at my residence. By the time government came, the contractors were on site that had been enlisted by the family and not by the government or Public Works. Government had a plan regarding what it wanted to do. Government wanted to improve the fence, etc. I told government that I had my own plan-which was a comprehensive plan- to extend my home. What then happened was that I allowed government to meet with the contractors who were already on site because government, from a security point of view, insisted that they needed to participate.
So, even the manner in which the question was asked-the question being: have you instructed the Minister to tell the contractors to stop working- suggests that the contractors were brought by Public Works. Public Works found those contractors constructing my home.
They had to agree to what government wanted them to do at my home. The government had specific things they wanted to do to my houses, not build houses for me. A wrong impression has been created in the country, that the government has built a home for me. That is not true.
6.94. I never received a further response from the President to the questions posed to him.BACK TO TOP