Nkandla: Is this the end of the controversy?

Matthew Kruger writes that Zuma might owe us more than the R7.8m Treasury says he has to pay

After the president pays back some money, is that the end?

2 August 2016

Last week, the Constitutional Court approved the Report by National Treasury relating to construction at the President’s private residence in Nkandla. He will have to pay back some money: R 7 814 155.

Apart from speculation about how he will satisfy this debt and questions about taxes, many people are under the impression that he will have fully and finally complied with his legal duties after effecting this payment. Indeed, the President believes he is only liable for the reasonable percentage of the costs of five non-security items: the amphitheatre, cattle kraal, visitors’ centre, chicken run and swimming pool, i.e. R 7 814 155. This belief is widespread in the media, e.g. see herehereherehere and here. It also seems to be the belief of theEFF and DA, the litigants who pursued the President.

The belief is false. When read together with the Public Protector’s report, the court’s orderobliges the President to do a fair bit more. Far from coming to an end, the President’s journey still has some way to go. In this brief, I try to explain why.

The Public Protector’s report

We must begin with the Public Protector’s report, obliging the President to take ‘steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW [Department of Public Works] at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool’ (para. 11.1.1).

For lawyers, the emphasised phrase, ‘which include’, has a settled meaning. When a list in a legal instrument—statute, contract, report—is accompanied by the phrase it means the list is not exhaustive of what is covered by the instrument. The items are concrete examples, but other items might also be covered. Whether an item is covered depends on other facts, e.g. occurrence of an event, happening of unforeseen circumstances, or discovery of particular facts unknown to the drafters.

The last of these examples is relevant here. The President must determine the reasonable costs of the non-security DPW measures. These measures include, but are not limited to, the five specified items. The steps he must take, therefore, include those necessary to determine if other DPW measures are not related to security. Indeed, this is why the SAPS is obliged to assist the President in making this determination—neither the President nor Treasury, presumably, would have the expertise necessary to determine what is and what is not a security measure.

According to the report, the President’s duty is to pay a reasonable percentage of the costs of all the non-security measures at Nkandla (para. 11.1.2). So, it is wrong to think that the report only obliges the President to pay a reasonable percentage of the costs of the visitors’ centre, amphitheatre, cattle kraal, chicken run, and swimming pool. He must investigate and possibly pay for more.

The court order

The view that the President’s duty is limited to paying a reasonable percentage of the costs of these five items is grounded in an unfortunate, though not insurmountable, lack of clarity in the order of the Constitutional Court.

We should start with paragraph 5 of the order: ‘The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only’.

The President’s position hinges on the emphasised word ‘only’, for he seems to rely on it to argue that the order requires him only to pay a reasonable percentage of the costs of the five measures specified in this paragraph. This position appears to be supported by paragraphs 6, 7 and 8 of the order, which oblige the National Treasury to ‘determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President’ (para. 6) and ‘report back to this Court on the outcome of its determination’ (para. 7), and which oblige the President to ‘personally pay the amount determined by the National Treasury in terms of paragraphs 5 and 6 above within 45 days of this Court’s signification of its approval of the report’ (para. 8).

As noted, the report obliges the President to take steps, with the assistance of Treasury and the SAPS, to determine what other DPW measures do not relate to security. So, if the President’s obligations are fully satisfied by paying a reasonable percentage of the costs of the five items referred to in paragraph 5, the court order would be inconsistent with the report. Whilst the court is empowered to make an order that differs from the report, we have good reason to resist this interpretation of the court order.

1. The scope of the judgment: Central to the court’s judgment was whether the remedial action taken by the Public Protector is binding. Ignoring certain irrelevant nuances, the court concluded that it was binding. It was not open to the President or Parliament to ignore this remedial action. At most, they could challenge it in court. Because they did not, the remedial action was binding in full. Since no aspect of the remedial action was challenged, it would be peculiar for the court to grant an order that diminishes the scope of the remedial action. It is simply inconceivable that it would do this implicitly, without justifying its decision. In fact, as we see in (2) below, its reasoning suggests the opposite.

2. The judgment: Any doubt about the court’s intentions is surely extinguished by the following paragraph from the judgment:

[77] Concrete and specific steps were therefore to be taken by the President.  Barring the need to ascertain and challenge the correctness of the report, it was not really necessary to investigate whether the specified non-security features were in fact non-security features.  Features bearing no relationship to the President’s security had already been identified.  The President was enjoined to take definite steps to determine how much he was supposed to pay for the listed non-security features.  If any investigation were to be embarked upon, to determine whether some installations were non-security in nature, it was to be in relation to those additional to the list of five for which some payment was certainly required.  The reporting to the National Assembly and the reprimand of the affected Ministers also required no further investigation.’

The emphasised words acknowledge the non-exhaustive nature of the report—that is, the fact that the measures for which the President is liable ‘include’ the specified items, but is not limited to these items. The court expressly says that additional investigations may be required to determine whether other DPW measures were non-security in nature. The specified items are those ‘for which some payment was certainly required’. There might be other measures. Indeed, as we see next, this is precisely why the court included paragraph 3 in its order.

3. Binding remedial action: Paragraph 3 of the court order says: ‘The remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding.’ The plain wording of this paragraph is clear: the action taken by the Public Protector against the President is binding in full, including paragraph 11.1.1 of the report. Should we depart from its plain wording? For the following reasons, I think not.

(a) Paragraph 3 is not internally qualified, so there is nothing here to warrant a reading that departs from its plain meaning. For a departure to be justified, we must look elsewhere. As we have seen, the scope of the judgment and the court’s own reasoning do not support an alternative interpretation. So, all we are left with is paragraph 5 and its use of the word ‘only’. But, as we see from (b), (c) and (d), paragraph 5 does not necessitate a departure from the plain meaning of paragraph 3.

(b) Whereas the subject of paragraph 5 is Treasury, the subject of paragraph 3 is the President. This is important because the obligations imposed by the two paragraphs concern different parties. Paragraph 3 confirms that all of the remedial action of the Public Protector binds the President. Paragraph 5, by contrast, only binds Treasury. As such, the latter paragraph, which contains the word ‘only’, does not qualify or limit the comprehensive nature of the declaration in paragraph 3.

(c) Paragraph 11.1.1 of the report says the SAPS must assist the President in his determination of a reasonable percentage of all the costs of non-security DPW measures. There is no mention of either the President or SAPS in paragraph 5. Rather, Treasury is the obligated party. Again, this suggests that paragraph 5 does not purport to qualify paragraph 3—but rather creates a specific obligation that applies only to Treasury, and does not purport to limit the President’s duty to comply with all of the remedial action taken against him by the Public Protector.

(d) If the remedial action taken by the Public Protector is binding in full, what is the relevance of the word ‘only’ in paragraph 5? It seems that it was meant to serve two related purposes:

(i) Only after the President, assisted by Treasury and the SAPS, conducts his investigation will we know if other measures do not relate to security. Because we do not know what such an investigation will reveal, paragraph 5 limited Treasury’s immediate obligation to establish the reasonable costs of the DPW measures to the specified items—that is, to the measures ‘for which some payment was certainly required’. The word ‘only’ was included, it seems, in an effort to emphasise this point.

(ii) Paragraph 7 obliged Treasury to report to court on the outcome of its determination of the costs of these five items. Because it had to report back within 60 days—and because it was unlikely that the President would have taken the steps necessary to determine whether other DPW measures did not relate to security within that timeframe—the court emphasised the limited reach of Treasury’s duty, i.e. it had to report on its determination of the reasonable costs of these five items ‘only’.

Ironically, the word ‘only’ was probably included for the sake of promoting clarity, but it has ended up causing a great deal of confusion. Despite some ambiguity, however, there is no error in the order, nor is it so vague as to require amendment. We must stick to what paragraph 3, read with the scope of the judgment and the court's own reasoning, actually says: the remedial action, all of it, taken by the Public Protector against the President is binding.

The President must do more than pay back R 7.8 million. He must also take ‘steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security’. With help, he must determine if DPW measures other than the five specified in the court order were not related to security. If such measures exist, he is obliged to pay a reasonable percentage of the costs of these other measures.

The end of the beginning

When the President pays back the amount of R 7 814 155, this must not be seen as the end, or even as the beginning of the end. At best, it is the end of the beginning of the sustained effort to hold a man—more lilliputian libertine than leader, more impenitent prodigal than ‘personification of this nation’s constitutional project’—to account for his naked self-enrichment.

Matthew Kruger is Legal Researcher at the Helen Suzman Foundation.

This article first appeared as an HSF Brief.