DA to submit proposed amendments to National Key Point Act to Speaker Max Sisulu

Note to editors: The following statement was distributed at a press conference held in Parliament today by DA Parliamentary Leader Lindiwe Mazibuko MP, DA Chief Whip Watty Watson MP, and DA Shadow Minister of Public Works Anchen Dreyer MP. 

Reports that the Department of Public Works will be spending nearly R250 million on President Zuma's private homestead in Nkandla point to a serious abuse of public funds by a department that is failing in almost every other key responsibility. The reports also indicate that President Zuma will cover only 5% of this amount.

The extravagant Nkandla upgrade is therefore not only a scandalous waste of public money, but it also bolsters the perception that President Zuma considers himself to be above the law. It contradicts the animating values and principles of public service embodied in our Constitution.

The Presidency's response to scandal now known as ‘Nkandlagate' has been largely muted.  Indeed, government has done little to shed light on the details regarding the upgrade of President Zuma's private home, and specifically how much money is being spent by the state. 

The government has instead proffered a series of weak excuses for sidestepping the issue:

• The Minister of Public Works, Thulas Nxesi, has used the National Key Point Act of 1980 as justification for his refusal to release details of the upgrade, claiming that it has been declared a national key point in terms of the legislation. This has allowed him to hide the details regarding the upgrade, as well as requests through the Promotion of Access to Information Act.
• The Executive Ethics Act contains serious flaws and loopholes, which allows for abuse by the President. These include the fact that the President is the adjudicator where conflicts of interests exist, and that the he is able to determine for himself whether or not he has abided by the code.  
• The President remains unaccountable to Parliament, where no oversight committee exists for the Presidency. There are thus few significant mechanisms that enable MPs to hold President Zuma directly accountable in Parliament for these actions, other than through questions to the President.
• If reports about the upgrade are accurate, then the President has violated the terms of the Ministerial Handbook, without any accountability or transparency mechanisms to constrain him.

The DA will continue to pursue the steps set out in the document presented here today to ensure that President Zuma and his government are held accountable. In addition, we will take immediate steps to eliminate these clear loopholes in order to prevent another Nkandlagate scandal.

I will introduce a Private Members Bill with proposed amendments to the National Key Point Act of 1980 to bring it in line with the Constitution.

This Private Members Bill (PMB) will seek to correct the anomalies in the Act which have allowed for this misuse of funds:

• The definition of a National Key Point needs to be clarified, with set criteria provided in the legislation. This would ensure that the Minister would not be able, as is currently the case under Section 2, to declare for expediency only. It has to be proven to be necessary for national security.
• The decision to declare property a National Key Point, in terms of these criteria, must be tabled before the Portfolio Committee of Defence and Military Veterans, which will have the powers to review the decision.
• The list of National Key Points must be maintained in a register in the Department of Defence, which can be accessed by the public upon request.
• Sections 2A and 10, which prohibit anyone from providing "any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there'', and render it a criminal offence to do so, must be reviewed.
• The full report by the Auditor-General on the expenditure related to National Key Points, through the Special Account for the Safeguarding of National Key Points, must be tabled before Parliament and made public.  

It is clear that the scope of the National Key Points Act of 1980 remains too broad. In terms of Article 19 of the International Convention on Civil and Political Rights, and specifically, the Constitution of the Republic of South Africa, the right to freedom of expression and press can only be limited if reasonably justifiable in an open and democratic society based on human dignity, equality and freedom.

While ensuring the security of locations necessary to maintain national security is important, the definition must precisely determine what constitutes national security. 

In light of the recent Constitutional Court judgment in Oriani-Ambrosini v Sisulu, we will be re-submitting the DA legislative proposal to amend the Executive Members' Ethics Act 1998.

The aim of the Executive Ethics Act is to provide a code of ethics governing the conduct of members of the Cabinet, Deputy Ministers and members of provincial Executive Councils. Our view is that the spending of nearly R250 million on President Zuma's private home is in contravention of this Act and the code contained in it.

The code stipulates that members of the Cabinet, including the President, may not:

• Act in a way that is inconsistent with their office;   
• use their position or any information entrusted to them to enrich themselves or improperly benefit any other person; and
• act in a way that may compromise the credibility or integrity of their office or of the government.

However, limitations within the current Executive Ethics Act prevent appropriate action from being taken. This is because the President is effectively his own adjudicator in cases of alleged conflict of interest. 

DA MP Athol Trollip previously submitted a PMB to propose amendments to this legislation. Mr Trollip proposed:

• That members of the public have greater ease of access to the President's declaration of interests;
• that the President's compliance with the general standards of ethical conduct as outlined in Section 2.1 of the Executive Members' Ethics Code be adjudicated by the Public Protector, in the same way that all other members of the Executive must meet the criteria outlined in Section 2.1 of the Executive Members' Ethics Code to the satisfaction of the President or the Premier, as the case may be;
• that the adjudication of any gifts or conflicts of interest declared by the President be adjudicated by the Public Protector, in the same way that the President or Premier, as the case may be, adjudicated conflicts of interest or gifts declared by members of the Executive; and
• that government business deals involving the President's family members should come under specific scrutiny by the Auditor-General to ensure that all tender processes were followed and no special favours were given.

The ANC rejected this legislative proposal this year on spurious grounds, providing no clear basis for why it could not be taken forward.

Following the recent Constitutional Court decision in Oriano-Ambrosini v Sisulu, which found that provisions preventing Members of Parliament from introducing legislation directly are unconstitutional, the DA will be resubmitting this proposed legislative amendment directly to the Speaker of the National Assembly in order for it to be tabled before the relevant committee.  

We will continue to push for a Portfolio Committee on the Presidency to ensure that the Presidency is not excluded from parliamentary oversight.

For every government department in the country, a portfolio committee exists to exercise full and proper oversight of the department, except for the Presidency. This has created a culture of ‘being above the law' within the Presidency. Vast amounts of public funds are often misspent. As members of Parliament we need to ensure that that no public servant is above the law, including the President.

We will continue to petition for the establishment of a Presidency Portfolio Committee that will have the same mandate and jurisdiction as all other portfolio committees. 

In terms of Rule 199 of the Rules of the National Assembly, a portfolio committee can be established by the Speaker of the National Assembly in concurrence with the Rules Committee.

To gain multi-party buy-in for this proposal, the DA will place the creation of this new committee on the agenda of the Chief Whips' Forum and the National Assembly Rules Committee at the next available opportunity. 

We will propose that the review of the Ministerial Handbook be completed as a matter of urgency by the end of the year.

Annexure E of the Ministerial Handbook states that ‘The Minister of Public Works may approve a State contribution of a non-recoverable maximum amount of R100 000, or the total cost of security measures not exceeding R100 000.' 

This provision has clearly been ignored by the Minister of Public Works, Thulas Nxesi.  During his press conference earlier this month on the Nkandla expenses, he said "The Ministerial Handbook is just one little piece, but if you're talking about the head of state, you're talking about something far beyond that."

This disregard for the Ministerial Handbook cannot be allowed to continue. The DA has been calling for the amendment of the Ministerial Handbook for three years now, following public outcry around the cost of ministerial cars in July 2009. President Zuma committed himself to overseeing the revision of the handbook and shortly after that, Minister in the Presidency, Collins Chabane, announced a Ministerial Review, promising to finalise these amendments ‘before the World Cup'. Three years later the Ministerial handbook has still not been revised.

I will write to both President Zuma and Minister Chabane to urgently request an update on the status of the Ministerial Handbook and an undertaking that it will be tabled before the end of the year. The DA will also submit a proposal that the Ministerial Handbook be clearly reflected as the highest authority insofar as expenditure on the Executive is concerned. This will prevent other pieces of legislation from being used to undermine the limits that have been placed through the Ministerial Handbook. 

We will continue to call for a debate in Parliament so that members may discuss this blatant abuse of power and public funds. The decision by the Acting Speaker, Nomaindia Mfeketo, to disallow a debate on Nkandla in the National Assembly will be challenged at the next meeting of the Parliament Oversight Authority.

Should SCOPA, through pressure from the ANC, decide to turn down my request for an investigation into both Zumaville and Nkandlagate tomorrow, I will request that Speaker Max Sisulu intervene by establishing an ad hoc committee of inquiry to investigate the full extent of this fruitless expenditure by the President and the Minister of Public Works.

This misuse of public money in revamping President Zuma's private homestead in Nkandla is growing evidence of a government that puts the enrichment of politically connected individuals above the interests of South Africans. While the economy is in crisis, and millions of South Africans find themselves unemployed and trapped in poverty, President Zuma's government is building a palace for him, as if he will be President for life.

The DA will not allow this to go unanswered. The steps we have proposed will go a long way toward preventing future abuse of public funds by the ANC for its party leaders, whoever they might be. We will also continue to ensure that President Zuma and his government are held fully accountable for the ‘Nkandlagate' scandal.

Ensuring that this happens will send a clear message to President Zuma and his cabinet ministers: get your priorities right and put the interests of South Africa's people above your own.  

Statement issued by Lindiwe Mazibuko, DA Parliamentary Leader, October 29 2012

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