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 has consistently claimed to know little about the taxpayer-funded aspects of the construction at his homestead near Nkandla. As the Public Protector Report on Nkandla makes abundantly clear, the President was intimately involved in (and had extensive knowledge of) the state-sponsored aspects of the construction at his private home. Claims to the contrary are therefore untrue.
The full extent of the Nkandla scandal only becomes apparent when you carefully read all 447 pages of the Public Protector’s Report. Although the Public Protector made damaging findings in her Report about the unconstitutional and unlawful actions of President Jacob Zuma and about the improper benefits derived from the Nkandla construction by President Zuma and his family, it is only when you study the full Report that it becomes apparent to what extent the President was directly involved in the scandal.
One aspect that bears scrutiny is the extensive evidence contained in the Report of President Zuma’s personal involvement in (and knowledge of) the taxpayer-funded aspects of the construction at Nkandla.
In February this year President Jacob Zuma, in an interview with ENCA – partially aimed at distancing himself from the state’s Nkandla construction project — claimed that as president, one did not ask about or debate matters relating to one’s personal security. “You don’t,” he said. “No president asks that question…. I can tell you sitting here — there are things that they have done that I don’t know. In fact, they will tell you [that you are] not supposed to know.”
In an interview in the same week with Independent newspapers he again denied any involvement in the state-sponsored construction at Nkandla, seeking to draw (what now appears to be an artificial) distinction between security upgrades and the building of private houses for him and his family.
The government came very late to introduce security features at the level that they were being introduced before Zuma became the president. It was their confidential things. They never discussed with anyone of the family. So even if you wanted to talk, the family didn’t know. The very government… they are the ones who know better.
As the Public Protector’s Report on the Nkandla scandal makes clear, these statements create the wrong impression. Although it may have been possible to argue that one or two references relating to President Zuma’s involvement in the Nkandla project can be misinterpreted or may be based on lies told by those involved, the many references of President Zuma’s involvement in the project which are contained in the Report provide striking evidence of President Zuma’s intimate involvement in (and knowledge of) the Nkandla project, which was paid for from public funds.
I list some of this evidence contained in the Public Protector’s Report here in order for readers to make up their own minds and to ask themselves to what extent President Zuma had knowledge of (and was involved in) the construction project paid for by taxpayers money.
Paragraph 6.10.5 of the Report contains an extract from a letter from the SAPS Divisional Commissioner: Supply Chain Management (written on 23 October 2009), informing the Director-General of the Department of Public Works:
By instruction of the State President, President Zuma the existing house at Nkandla currently accommodates SAPS members, (sic) must be converted as part of the President’s household. To cater for the needs of the members currently accommodated in the house as referred to above, additional bachelor flats need to be added to the needs assessment previously provided to your department.
Paragraph 6.19.2 indicates that much pressure was applied on various officials involved in the implementation of the Nkandla Project “due to the fact that the President had complained about the slow progress made and the negative impact it had on the finalisation of the construction of his private dwellings”.
In the minutes of a Progress Meeting (quoted in paragraph 6.22.2 of the Report) it was recorded that the architect (who was also Mr Zuma’s private architect for the residential dwellings built at Nkandla) “would discuss the road surface required for the driving of tractors with the principal (the President)”.
The minutes of a meeting held on 19 August 2010 (discussing the landscaping at Nkandla the Report) contains the following telling passage (at paragraph 6.24.2):
After discussions on the progress made in respect of a number of items, Mr Rindel suggested that Mr Makhanya meet with the President, “for signing off of documents.” He indicated during the investigation that both Mr Makhanya and the appointed Landscape Architect were tasked at the meeting to obtain approval of the landscape design from the President…. No further evidence was provided indicating that the President was indeed consulted in this regard.
Mr Zuma was also apparently kept abreast by his cabinet colleagues about progress with the Nkandla Project. As paragraph 6.32.1 of the Report makes clear, on 5 November 2010 then Minister Mahlangu-Nkabinde addressed a letter to President Zuma providing him with a detailed progress report on the cattle culvert; perimeter fence; inner high security fence; Guard House, Tuck Shop, Refuse and electrical rooms; electrical supply; sewer treatment plant; relocation of families; upgrade of water supply; helipad; excavation for clinic; entrance by-pass; services to park homes and the bunker.
In minutes of a further progress meeting held on 16 November 2010 (and reported on in paragraph 6.35.1 of the Report), it is noted that the architect “indicated that he was advised by the President that the households to be relocated ‘is waiting for a family member to arrive before relocation can take place’”. And in the next paragraph it is noted that:
At the progress meeting held on 23 November 2010, it was recorded that the President had requested to be informed about the delay in their relocation from the site.
It appears that the President was also well aware of the construction of a swimming pool at state expense at Nkandla. In paragraph 6.44.3 of the Report (reflecting a progress meeting held o 1 April 2011) it is noted that the then Deputy Minister stated that she would discuss the use of the swimming pool by surrounding schools with the President.
At a subsequent meeting on 11 May 2011 it was reported that the construction of the swimming pool was put on hold “due to uncertainty about the apportionment of costs in respect thereof”. The architect “confirmed that the design of the fire-pool was presented to the President”. In paragraph 6.45.7 of the Report it is again noted that at a meeting on 25 May 2011the architect was requested to discuss the swimming pool with the President.
The swimming pool again came up at a meeting held on 4 July 2011. In paragraph 6.45.14 it is noted that at the meeting it:
was further recorded that the fire-pool submission was with the Bid Committee for approval and that all outstanding matters discussed between the Deputy Minister and the President had been resolved. No details were provided in this regard. This confirms the evidence of Deputy Minister Bogopane-Zulu that the matter of the swimming pool was discussed with the President.
At a meeting held on 11 May 2011 it was recorded (as reported in paragraph 6.45.2 of the Report) “that the implementation of landscaping had not been approved and that the Deputy Minister had discussions with the President in regard thereto”.
The minutes of this meeting noted that the architect “was requested to submit the landscaping changes that were made by the DPW to the President for his approval”. In paragraph 6.45.5 it is confirmed that at a meeting of 25 May the architect confirmed that he had discussed the landscaping with the President. In paragraph 6.45.10, based on minutes from a meeting held on 22 June 2011, it is recorded that the architect:
was to have further discussions with the President on infrastructure requirements. Mr Rindel indicated that the Landscape Architect was in the process of updating the design on what had been agreed with the President.
The Minutes of a meeting held on 28 September 2011 indicate that the architect once again reported that the President was concerned about the progress made on the site and that it might not be available for him to use during December 2011 (see paragraph 6.48.4 of the Report).
The President himself, in an interview with the Public Protector held on 11 August 2013, indicated that he (President Zuma) had requested the building of the kraal “as the number of his cattle had increased. He also stated that he would be willing to refund the state for the cost incurred in this regard” (see paragraph 6.63.2 of the Report).
Witnesses also indicated (according to paragraph 6.65.6 of the Report) that the then Deputy Minister had discussed the matter of the removal of adjacent families with President Zuma.
Evidence also emerged that the President was aware that a clinic would be built at Nkandla. According to the Report, the Deputy Minister discussed the matter with the President to determine whether the President “would be okay that the clinic also serves the community”. Paragraph 126.96.36.199 of the Report then notes that:
Lt Gen Ramlakan was opposed to the idea. However, she discussed it with the President. He stated that he wanted the community to benefit. According to her, President Zuma said: ‘If they give you grief, tell them they must come and talk to me.’
From this evidence it appears that the President was aware of various aspects of the lavish Nkandla construction.
Yet, there is no evidence that he questioned the expenditure (as some officials, to their credit, did) and took no steps to reduce the lavish expenditure on various features of the building programme. Some of these features were security related but had not originally been proposed as necessary to protect the President by the security team. Some of the features related purely to the personal enhancements of the Nkandla homestead.
The preliminary question that every South African may ask is why the President allowed himself and his family improperly to benefit from the Nkandla project. A subsequent question would be whether, given this lack of concern for the spending on public funds for his own benefit, the President can be trusted to head the government.BACK TO TOP