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 always had a complicated and ambivalent relationship with the truth. His lack of enthusiasm for facts was again on display when he addressed the nation on Friday night after the Constitution Court found that he had breached his constitutional duty to uphold, defend and respect the Constitution as the supreme law of the Republic.
In March 2003, when he was Deputy President of the country, Jacob Zuma stated in a written reply to a question posed to him by a member of Parliament: “I did not meet [arms deal representative] Alain Thétard on March 11 2000 in Durban or anywhere else in South Africa.”
The High Court later found in the judgment in which it convicted Schabir Shaik of bribing Jacob Zuma, that President Zuma did meet with Shaik and Thétard. The meeting was originally scheduled for 11 March 2000 “but [was] rescheduled at the last minute for 10 March because of some unavoidable commitment on Zuma’s part”.
In that instance President Jacob Zuma skilfully denied specifically what he could not deny in general terms. He did so to avoid implicating himself in potential bribery and corruption. The denial was thus technically true but not truthful: thus not an untypical response for a criminal accused in a corruption case.
The President was less skilful when he made the following false statement regarding the various Nkandla investigations in December 2014: “The reality is, the president did absolutely nothing wrong. There is not a single one [report] that found anything wrong that the president had done.” In fact, the public protector report had emphatically found that the President’s:
failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.
In his address to the nation on Friday evening, President Zuma unfortunately again displayed a rather lackadaisical approach to facts.
The first fib came when President Zuma claimed: “I have consistently stated that I would pay an amount towards the Nkandla non-security upgrades once this had been determined by the correct authority.”
This claim is not entirely correct. In March 2015 President Zuma told Parliament; “Never have I thought of paying back the money.” Instead, the president asked the Minister of Police to determine whether he was liable to pay back any money spent on the renovations of his private home. He suggested that he would only be willing to pay back a portion of the money if the Minister of Police found that he was liable to do so.
At the time President Zuma said he was not obliged to comply with the order of the public protector to pay back the money because, so he claimed: “The public protector made the same finding that I never took a penny. She made recommendations. Recommendations are recommendations, they are not verdicts.”
The second major fib in the President’s address on Friday came when he stated:
I wish to emphasise that I never knowingly or deliberately set out to violate the Constitution, which is the supreme law of the Republic.
The statement of the President is misleading. It suggests that the only breach of the Constitution occurred when the president flouted section 83(b) (his duty to “uphold, defend and respect the Constitution as the supreme law of the Republic”), read with section 181(3) (his duty to “assist and protect the [office of the public protector] to ensure [its] independence, impartiality, dignity and effectiveness”) and section 182(1)(c) (his duty to comply with remedial action imposed by the public protector).
However, the public protector had found in her report (which the President conceded before the Constitutional Court was binding) that the president’s “failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.”
This breach of the Ethics Code and section 96 of the Constitution could not possibly have occurred because the President may have received wrong legal advice. Neither the public protector nor the Constitutional Court found (or even suggested that it was possible) that the President did not deliberately violate section 96 of the Constitution. In fact, both the public protector and the Constitutional Court found the President knowingly allowed the state to pay for non-security related renovations at his private home. This was a knowing and deliberate breach of section 96 of the Constitution.
The third major fib in President Zuma’s address to the nation on Friday is contained in his claim that:
I wish to confirm in line with the findings of both the court and the public protector, that I did not act dishonestly or with any personal knowledge of the irregularities by the Department of Public Works with regards to the Nkandla project.
This statement is not accurate. There are only two references in the Constitutional Court judgment relating to the knowledge of the president about the irregular spending of state funds that enriched the President. None of these found that the President did not act dishonestly or with any knowledge of what was happening.
Instead, it suggests the opposite. First, the Court noted, without comment, that the public protector had found that: “the President failed to act in line with certain of his constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources”.
Second, while discussing the findings of the public protector he Court noted that there was a direct connection between the position of President and the reasonably foreseeable ease with which the specified non-security features, asked for or not, were installed at the private residence.
This naturally extends to the undue enrichment. Also, the mere fact of the President allowing non˗security features, about whose construction he was reportedly aware, to be built at his private residence at government expense, exposed him to a “situation involving the risk of a conflict between [his] official responsibilities and private interests”. The potential conflict lies here. On the one hand, the President has the duty to ensure that State resources are used only for the advancement of State interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise.
More perplexing, perhaps, is the President’s claim that the public protector had found that the President did not act dishonestly or with any personal knowledge of the irregular use of state funds which unduly enriched the president. The public protector explicitly found the opposite. (Of course, the public protector did not make a finding on whether the president was aware of the dishonest inflation of prices by the contractors.)
The following extracts from the public protector’s report demonstrates how difficult it is to reconcile the president’s claim with the truth.
9.5.1. It is common cause that the President was briefed by officials of the SAPS and DOD when the Nkandla Project started on the measures that had to be installed in his private dwellings. He has not denied that he was informed from time to time on certain aspects of the project by Mr Makhanya and Deputy Minister Bogopane-Zulu and reports were occasionally forwarded for his attention.
9.5.2. The President was also provided with a detailed progress report on 5 November 2011 by the former Minister of Public Works.
9.5.3. The President was therefore aware of what the Nkandla Project entailed. He obviously also observed the scale and extent of the project when he visited his private residence during the period of implementation.
9.5.4. The fact that he complained on more than one occasion of the lack of progress made with the project and the impact that it had on his private life and that of his family clearly shows that he was aware of the measures taken and the status of its implementation.
9.5.5. We have also ascertained some direct involvement related to his request that the design of the bullet resistant windows be changed and a kraal be built.
9.5.6. There is no evidence that the President raised his concern or disapproval on the scale of the project that was being implemented at his private residence or the cost thereof with the Ministers or officials involved.
9.5.7. The mere magnitude of the Nkandla Project, the many buildings constructed, including underground facilities and substantial landscaping interventions, the swimming pool and terrace, amphitheater, kraal and culvert, Visitors Centre, elaborate paving and the space created for a marquee tent, would, in my view, have prompted any reasonable person in the position of the President to seriously question the need for certain items and the expense to the fiscus of funds that could have been used somewhere else where there are service delivery needs, poverty and unemployment…
9.5.12. The evidence in connection with the changes that were made in the design of the bullet resistant windows after he complained about it and the building of the kraal, is indicative thereof that any other concerns that he would have raised would have been taken seriously. A substantial amount of public money would have been saved, had the President raised his concerns in time. By failing to do so, the President allowed or caused extensive and excessive upgrades that go beyond necessary security measures to be made to his private residence, at state expense.
Given the explanations provided above, the paragraphs preceding the “apology” offered by the president in his statement appear to be difficult to reconcile with any version of the facts that a rational person could potentially believe to be true.
I wish to reiterate that any action that has been found not to be in keeping with the Constitution happened because of a different approach and different legal advice. It all happened in good faith and there was no deliberate effort or intention to subvert the Constitution on my part.
It must lastly be noted that the president did not apologise for breaching the Constitution and for not upholding, defending and protecting the Constitution. Neither did he apologise for unduly enriching himself at state expense. Instead the president apologised for the fact that the Nkandla scandal had “caused a lot of frustration and confusion”.
It is not known whether the President might have considered that some of the “frustration and confusion” could have been avoided if only he had demonstrated a more assured and intimate relationship with the truth.BACK TO TOP