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.
Is Public Works Minister Thulas Nxesi a secret admirer of Albert Einstein? Einstein once remarked that: “When I examine myself and my methods of thought, I come to the conclusion that the gift of fantasy has meant more to me than any talent for abstract, positive thinking.” It can only be the “gift of fantasy” sustaining the Minister in his belief that the R250 million “security” renovation at President Zuma’s private home at Nkandla was authorised by the Ministerial Handbook.
In a letter to Corruption Watch, the Minister again claims that the renovation at President Zuma’s private home (which may or may not be called a compound) was “in line with the Ministerial Handbook”. He concedes that — as I have pointed out before – Annexure E to the Handbook limits the state contribution to security upgrades at the private homes of public office bearers to R100 000.
But the Minister is not one to let mere facts come in the way of justifying the unlawful expenditure on his boss’s private crib (also sometimes — but never on the SABC – called a compound). As the Minister informed Corruption Watch:
It should be noted that the residence in question is a private residence but is also used for official purposes. The Annexure E as referred to by your so-called ‘constitutional expert’ refers to private residences of office bearers that are used for private purposes only. The residence in question is used for both private and official purposes.
There are several fatal problems with this explanation. (Hint: it is untrue.)
First, there is no evidence that Nkandla has ever been used for official purposes. As far as I am aware, no head of state has ever been entertained at Nkandla. (However, now would be a good time to tell us whether any very rich and generous foreign leaders – Dos Santos from Angola, Gaddafi from Libya? — have secretly visited Nkandla). When was Nkandla ever used for official purposes, why were we never told about these official visits and why was one of the President’s three official state residences in Cape Town, Pretoria and Durban not used for such purposes?
Second, the Ministerial Handbook obviously does not allow Nkandla to be used for official purposes. It is true that an office bearer (like the President) can designate either a privately owned residence or a State-owned residence as his or her official residence. However, Section 1.2 of Chapter 4 of the Ministerial Handbook states that only a residence at the seat of office (which would be in Pretoria and Cape Town) could be designated as an official residence. One cannot designate one’s private residence as an official residence if that residence is not situated in Pretoria or Cape Town. If a Minister had a private home in, say, Paris or in the Cayman islands, that home could not be designated as an official residence.
Furthermore, one cannot designate several private residences as official residences. This would allow cabinet ministers so “double-dip” as the state would have to pay for security and some of the upkeep at all the residences designated as official residences. The Handbook is rather emphatic about the fact that one has a choice: one cannot designate a private residence as an official residence if one already has a state owned official residence in that city.
One official residence “at the seat of office” is all that the Ministerial Handbook allows. To hold otherwise would mean that any member of cabinet could buy several houses in various parts of the country (or elsewhere in the world – Switzerland, maybe?) and then designate all these houses as official residences so that the state could pick up the tab for security improvements as well as for certain costs associated with its upkeep. Not even the Ministerial Handbook allows for such outrages looting of public funds.
Minister Nxesi’s claim that Nkandla is being used for official purposes — if true — would therefore serve as an admission that the President is in breach of the Ministerial Handbook. If he has indeed used his Nkandla home as an official residence despite the fact that it is not situated in either Pretoria or Cape Town and despite the fact that he has state-owned official residences in these two capitals, the President would be in breach of the Handbook. (However, I will assume for present purposes that the President is not in breach of the Handbook because the Minister’s claim is not true.)
Third, the prohibition on the spending of more than R100 000 on security upgrades of an official residence actually refers to a privately owned residence designated as an official residence. This means that even if Nkandla were designated as an official residence (which would not be allowed), Annexure E to the Handbook would limit the cost of security upgrades at Nkandla to R100 000. Section 2.2 of Chapter 4 of the Ministerial Handbook makes this crystal clear (although it refers to a cabinet decision now superseded by the decision contained in Annexure E). The Minister is being less than truthful when he claims otherwise.
So, what can be done about this flagrant abuse of public funds? Can something be done to hold anyone responsible for the use of public funds to enrich the President? Here are some ideas.
One can request the Minister of Defence to provide us with information about which sites have been declared National Key Points, what set of criteria (if any) had been used when making these declarations and whether these criteria made a distinction between private property and property owned or leased by the state. One could also request information from the Minister about the Special Account for the Safeguarding of National Key Points, whether money is allocated to it every year and how much have been disbursed from this fund over the past five years. The request will probably be denied after which one could obtain a court order to force the revelation of this information. It would be interesting to see which National Key Point declarations were retained from the apartheid era.
One could challenge the constitutionality of several aspects of the National Key Points Act. As I have argued before, the fact that the Act creates criminal offences regarding National Key Points, but allows the Minister the discretion to decide what these Key Points are and does not require the Minister to make this public, almost certainly renders the Act unconstitutional.
One could approach a court and ask it to declare that the Nkandla upgrade was not authorised by the Ministerial Handbook as alleged, that the decision to allocate money to this project based on the Ministerial Handbook was therefore unlawful and/or irrational and/or in bad faith and to order the Minister to repay the wasted funds. The exercise of public power — including the allocation of resources — has to be authorised by law and has to be rational. Where the Minister allocated R250 million to a project based on the fantasy that the Ministerial Handbook authorised this (when it authorises the spending of only R100 000), the allocation cannot be said to be lawful.
It is also irrational because the Minister claims that the purpose of the spending was to improve security for the President at a private home used as an official home. But Nkandla is not a private home used as an official residence, so there is no rational relationship between the purpose of providing security at an official residence and the spending to upgrade the private home of the President. Nkandla being a private home (one that is not and cannot legally be designated an official residence), the spending of R250 million on security upgrades to protect the home used as an official residence is completely irrational.
If the State had spent R250 million to upgrade one of the President’s official residences, many of us would have been deeply upset about this scandalous waste of public funds, but legally we would probably not have had a leg to stand on. But because Zuma has three official residences where the President can receive any dignitary on official business, there are no rational legal grounds to waste this money on Nkandla and enrich the President and his family in the process. (And if the President is scared of a citizens uprising, he would have to build a bunker at an official residence, not at his private home.) And, ironically, the fact that the Minister of Public Works continues to cling to the fantasy that the Ministerial Handbook authorises this waste of public funds, would make it far easier to challenge his decision to allocate this money in court as the justification is so clearly false.
And when the courts make such a finding — on sound legal grounds — it would actually have the added benefit of enhancing the standing of the judiciary in the eyes of ordinary citizens who cannot understand that our government took until October this year to deliver textbooks to children in Polokwane, while it was far more efficient in wasting billions of Rand on improving Ministerial Homes and the private residence of a politician who could (theoretically, at least) be voted out of office at the next election.BACK TO TOP