Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
20 July 2010

Nyanda: Maybe immoral AND illegal after all

It is rather difficult to get hold of a copy of the Ministerial Handbook (also known as A Handbook for Members of the Executive and Presiding Officers). I searched the Internet for more than an hour yesterday (which included a search on the government’s own website as well as several legal databases) – all to no avail.

Those Ministers sure do not want us ordinary folk to know what is in this mysterious Handbook of theirs. Finally, after contacting DA MP, Dene Smuts, an efficient DA researcher provided me with a copy of the Handbook (and as any good PR person would, also included DA proposals for changes to the handbook).

After studying the Handbook I understand why its content is being kept half-secret. 

This is the thing: It is far from clear that claims by a spokesperson of Communications Minister, Siphiwe Nyanda, that the Ministerial Handbook had entitled the Minister to stay in the most luxurious 5 Star Hotels for 6 months at a cost of more than R500 000 could be squared with the actual provisions of the Handbook.

Why did Nyanda not stay in the house allocated to him after he became the Minister of Communications? Why was the poor man made to suffer for six months by having to stay at the most expensive Hotels in Cape Town? Personally I would not be seen dead at these terrible, inhumane, dumps and would rather sleep in the boot of my car.

Who could possible live in a “spacious, grand and elegant suit” with “spectacular views of Table Mountain”, have access to “two heated swimming pools”, “magnificent flood-lit tennis courts”, a yoga centre “complete with feature inspiring music, fresh flowers, candlelight, therapeutic scents and post-yoga refreshments”, an “on-site golf practice net”, “on-site hair salon” and a “world class holistic spa experience, where the trilogy of mind, body and spirit is nurtured”?

Sounds awful, doesn’t it? Who would not rather stay in a lovely state owned house in Upper Claremont?

(By the way, it’s a good thing Minister Nyanda was not allocated a house in lower Claremont because he would surely then have been entitled not to occupy a house in such a bad neighbourhood and would have been forced to stay at the Mount Nelson for another few years, poor man.)

Well, the Mail & Guardian reported as follows on the poor Minister’s woes:

A Cabinet colleague of Nyanda told the Mail & Guardian that the reason Nyanda had apparently given for refusing to move into his Hooggelegen residence in sought-after Upper Claremont was because the public works department had not bought him a bed. A senior communications department source confirmed this explanation was also doing the rounds in the department, but added that Nyanda was allegedly also unhappy that his house did not have a view.

Although Nyanda’s spokesperson strongly denied this, the department of public works confirmed on Thursday that Nyanda hadn’t moved in because of a delay with the delivery of furniture “to accommodate him”. Public works spokesperson Thamsanqa Mchunu confirmed that Nyanda’s furniture finally arrived on February 5 and February 26.

So, one explanation for his splurge was that while the house was furnished and he could have stayed in it (sleeping on one of the other beds in the house, one presumes) or could have bought his own bed (I am told one can buy a very nice bed for about R10 000 – a bit less than the R500 000 us tax payers eventually spent on the Hotel Bills), the house needed a bed for the General to sleep on. We all need a good night’s rest, after all, and national security, the national interest and the public good required the Minister to be alert at all times in case he had to deal with yet more reports of the SABC banning an old leader of the party from its airwaves.

Another, unconfirmed, explanation was that he was not happy with the view (even though the house was in upper Claremont). The official version was that new furniture (obviously replacing existing furniture) had to be provided “to accommodate” the General. One assumes this means the General was not happy with the original furniture (which was obviously not up to the standard of the Mount Nelson) and he thus ordered new furniture which would “accommodate” him and would ensure he would stay in the style and comfort that he had become accustomed to.

This kind of thing is covered by the Ministerial Handbook, which states in chapter 2:

If, owing to exceptional circumstances, a State-owned residence is not immediately available for Members upon assumption of duty of office, expenses in connection with alternative accommodation may be debited to the State until an official residence becomes available.

The first question would be whether the absence of one bed or unhappiness with the existing furniture would constitute “exceptional circumstances” as required by the Handbook. The second question would be whether a house is “not available” if some of the furnishings in the house are not to the liking of the new resident.

Now, maybe I am just not used to the millionaire’s lifestyle, but I find it rather difficult to believe that the absence of one bed or unhappiness with the state of the existing furniture could possibly have legally constituted “exceptional circumstances” as required by the Handbook. In a country where many people live in shacks, one could hardly argue with a straight face that unhappiness with the quality of furniture constituted “exceptional circumstances” that mandated an extended stay at tax payers expense in some of South Africa’s most expensive Hotels. 

This conclusion seems irresistible if one reads the clause in conjunction with the provisions in Chapter 4 of the Handbook which stipulates what the Department of Public Works is required to provide to an official accommodated in official state housing:

The furnishing of State-owned residences is limited to the provision, and maintenance, of ordinary household furniture, mattresses, pillows, carpets, curtains, beds, stoves, refrigerators, freezers, washing machines, tumble dryers and heaters, micro-wave ovens and dishwashers on request….. If a piece of furniture becomes redundant in a State-owned residence, the Office of the Member concerned should make the necessary arrangements in consultation with the Office of the Minister of Public Works to have the article/s removed and the inventories amended accordingly.

These provisions confirm that the Department would only provide the bare minimum of furniture for a house and would also – as a matter of course – replace “redundant” furniture. Such replacements are not treated as “exceptional circumstances” but are treated as ordinary day-to-day arrangements that should be made between the official and the Department. The sections in chapter 4 do not provide for a Minister to vacate his or her residence while the furniture are being replaced and it is thus not viewed as exceptional circumstances when any piece of state owned furniture is not up to the exacting standards of the relevant Minister.

More damning perhaps is that the residence was obviously “immediately available”. There it was standing – in upper Claremont nogal –  a shiny house, shimmering in the morning light, furnished and ready to be used by any good servant of the masses of our people. Although the furniture were not to the Minister’s liking, that did not make the house “not available”. It just made the house not to the taste of the Minister (whom it turned out, had rather more expensive tastes than the previous owners).

All this suggests that the Minister was not allowed by the Ministerial Handbook to stay in 5 Star Hotels for six months at a cost of  more than R500 000 and that he is legally required to pay back the money he had wasted. Maybe the Public Protector – who seems to be taking her job rather seriously and is acting without fear, favour or prejudice – should be asked to investigate this matter?

Meanwhile, the President might take up the suggestion of Cosatu’s Zwelenzima Vavi (is he finally regretting  the fact that he gunned for the abolition of the Scorpions?) to have the serious allegations of corruption levelled against Minister Nyanda investigated. Just because General Nyanda has displayed a taste for the good life and seems to have flouted the Ministerial Handbook does not, of course, mean that he is a corrupt businessman too.  But it does make one wonder.

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