Nkandla: DA’s review application before SCA next month on powers of Public Protector

7 August 2015

The ANC in in the Nkandla Ad Hoc Committee predictably rubberstamped the Nhleko report that we assert should have never even been considered in place of the Public Protector’s report in the first instance. 

The DA therefore looks forward to our review application before the Supreme Court of Appeal (SCA) in the SABC matter that will, in part, provide greater legal clarity on the powers of the Public Protector and how the Chapter Nine institution’s remedial action is to be engaged.

By an ordinary judicial process it is for the SCA to come this determination before the Constitutional Court contrary to the assertions made by one opposition party not featured in our minority report

Last night the DA, together with other opposition parties that participated in the Committee, submitted a minority report to the Nkandla Ad Hoc Committee established by Parliament to consider the Minister of Police, Nathi Nhleko’s report commissioned by President Jacob Zuma relating to the spending of R246 million at Mr Zuma’s private residence at Nkandla.

In the minority report submitted in response to the rubberstamping report by the ANC that was unsuprisingly adopted last night, the DA and other opposition parties, reassert that the report authored by Minister Nhleko is deeply flawed and unconstitutional by its very existence.

It is important to reiterate that our participation in the Ad Hoc Committee was never to rubberstamp the Nhleko report but rather was an effort to, in good faith, properly interrogate the Police Minister’s report, and to ensure that the Committee pursued the true facts. The ANC having blocked all such attempts, the DA is left with no option but to reject the Nhleko report in its entirety on the basis that it is at odds with due process and the Constitution and should be declared irrational and set aside.

Because the President does not like the remedial action ordered by the Public Protector, he is now replacing the remedial action with a recommendation from the Minister of Police, an action which is indefensible in law. For the President to direct the Minister of Police to report to Cabinet on a determination on whether the President is liable for any contribution in respect of the security upgrades at his private residence is deeply flawed and conflicted.

The process to be followed is clearly set out in the Schippers judgement . If President Zuma did not like the Public Protector’s remedial action he should take the matter on review - which is a function of the courts. In the absence of such a review application he does not have the authority to contemptuously dispatch Minister Nhleko to contradict the Public Protector’s report.

The Minister of Police is appointed to the Cabinet by the President, and serves on the Cabinet at the pleasure of the President. For him to sit in judgement on this matter is a clear conflict of interest, and made it impossible for the Minister of Police to give an honest and dispassionate assessment. In fact, by assuming this responsibility, the Minister of Police potentially violated section 96(2)(b) of the Constitution, which reads as follows –

Members of the Cabinet and Deputy Ministers may not –

(b) act in a way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;

On the 23rd of June 2015 the DA tabled detailed submissions as to why the report by the Minister of Police has no legal standing and should be summarily rejected by the Committee. The reasons include but are not limited to the following:

The report assumes a status equivalent to that of the Public Protector, a Chapter 9 institution, that can only be challenged through a court of law.

It is poorly drafted, superficial and is, in places, factually inaccurate.

In arriving at its conclusions, the Police Minister’s report deliberately obfuscates and contradicts the Public Protector’s and SIU’s findings, without rational grounds.

If the ANC again uses its majority to bulldoze the ratification of the Police Minister’s irrational report on the floor of Parliament instead of doing its work diligently, we will consider every option available to us to ensure that the President is held accountable for “unduly benefit[ing]” from the upgrades at Nkandla.

Statement issued by Adv Glynnis Breytenbach MP, DA Shadow Minister of Justice, August 7 2015