Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
16 May 2013

Nkandla: the National Key Points Act must be ignored

The Minister of Public Works must have jumped for joy when he was told that details of the abuse of public funds to upgrade the private home of President Jacob Zuma and Nkandla could be suppressed by invoking the truly authoritarian National Key Points Act. Passed in 1980 – as the finger-wagging, lip-licking, PW Botha and his securocrats were consolidating their autocratic powers and creating new mechanisms to censor the media to prevent another embarrassing Info scandal – the Act is a true relic of an undemocratic and oppressive past. No wonder it is only invoked selectively in an attempt to hide aspects of some – but not other – scandals washing like the proverbial tsunami over the Zuma government.

When journalists reported that a plane full of wedding guests (attending the lavish wedding organised by the politically connected Gupta brothers) had landed at Waterkloof Air Force base, they probably did not realise that they were potentially exposing themselves to the risk of a three-year prison term for breaching the provisions of the National Key Points Act. This is because Waterkloof Air Force base has allegedly been declared a National Key Point – although there is no way of knowing whether this is true or not because the list of National Key Points is itself a state secret. (For all we know there is no list of places declared as National Key Points at all and our government makes up National Key Points as they see fit in order to cover up corruption and maladministration – we simply do not know.)

But when, first, Gwede Mantashe and then later several cabinet ministers also commented on the scandal, they must have known that they were running the risk of breaking an infamous Apartheid law – if Waterkloof Air Force base is indeed a National Key Point as alleged. But because they were trying to protect the president, they seemed to have shown little concern about the possible dangers of breaching the provisions of the National Key Points Act – and rightly so. Pity the same level-headed attitude about this Act is not in evidence as far as the corrupt use of public funds to upgrade the private home of President Zuma at Nkandla is concerned.

Section 10(2)(c) of the National Key Points Act states that any person who:

furnishes in any manner whatsoever any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so, or without the disclosure or publication of the said information being empowered by or on the authority of the Minister… shall be guilty of an offence and on conviction liable to a fine not exceeding R10,000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

This section is rather broad. It prohibits any person from revealing any information about any “security measures” (or lack of security measures, one would assume) applicable at a National Key Point. It also prohibits anyone from furnishing any information on “any incident” of terrorism or subversion that had occurred at the National Key Point. However, we are not allowed to know which areas have been declared National Key Points and we are asked to trust the relevant Minister who claims at will that this or that site has indeed been declared a National Key Point.

This means that the journalists and the ministers who furnished information to the public about the landing of a private plane at Waterkloof Air Force base and the relative absence of security measures at the time, as well as the manner in which the guests on that plane was dealt with, might – at a stretch – inadvertently have revealed information about “security measures” applicable at Waterkloof and in theory might have committed an offence in terms of the National Key Points Act.

But I suspect the journalists and the ministers will be safe from criminal prosecution. Although the section is indeed absurdly broad, the Act does not prohibit anyone from providing any information about the National Key Point at all. It is clear that the Act does not prohibit anyone from revealing any information on non-security related measures or incidents at a National Key Point. On this basis the journalists and the ministers who revealed information about the landing of a private plane at a National Key Point might escape criminal prosecution. They might argue that they only revealed information on events that took place there and did not reveal what security measures are in fact in place at Waterkloof.

If this is correct and if the journalists and Ministers did not commit a criminal offence when they revealed details of the Gupta plane landing, then the claim by the Minister of Public Works that the report on the Nkandla scandal cannot be made public and must be discussed behind closed doors because Nkandla is a National Key Point is demonstrated to be pure nonsense invented to hide the truth about the abuse of public funds. Just as the journalists and the ministers were allowed to reveal information around the landing of a plane at Watekloof, we are also allowed to reveal information about the use of public funds for the upgrade of the private home of President Zuma at Nkandla.

Soon the Public Protector will finalise her report on the Nkandla scandal. In a futile attempt to protect the president, the very cabinet ministers who ignored the possible infringement of the National Key Points Act in the Guptagate saga will invoke this law to try and suppress that report. Those of us who might obtain a copy of the Public Protector’s report might do well to follow the example of the various ministers by ignoring the absurd law and publishing the Public Protector’s report.

As a complainant in the matter I expect to receive a copy of that report. Taking my cue from the Minister Jeff Radebe, I promise to publish it on my blog as soon as I receive a final version of that report. After all, I have no evidence that President Zuma’s Nkandla home has indeed been declared a National Key Point, and would take any claim to the contrary by the Minister of Public Works with a pinch of salt.

And even if Nkandla had indeed been declared a National Key Point as claimed, a report dealing with the use of public funds to upgrade the private home of the president will surely not reveal information about existing security measures at Nkandla. For the same reasons the Ministers ignored section 10(2)(c) of the National Key Points Act when they discussed the landing of a private plane at Waterkloof, I will also ignore that section when provided with the Nkandla Report by the Public Protector.

Surely, if we agree with Minister Jeff Radebe, who said during the Guptagate scandal that “the truth shall set you free”, we all have a duty to expose rather than cover up corruption. It is for that reason – and because it will not break any law – that the Public Protector’s Report on Nkandla must and will be made public.

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