Nkandla: Zuma may have deliberately misled Parliament in March 2013

Note to editors: This is the press statement that was distributed at a press conference at Parliament hosted by the DA Parliamentary Leader, Lindiwe Mazibuko MP, DA Caucus Chairperson, Dr Wilmot James MP, and DA Chief Whip, Watty Watson MP. The full document can be found here.

The DA has over the last two weeks taken every step possible to ensure that all those responsible for the Nkandla scandal - including President Jacob Zuma - are held accountable.

As was made clear at the ANC's NEC press briefing yesterday, we stand alone in this endeavour. Gwede Mantashe's "we recommend nothing" approach to this scandal will be remembered for many years to come as a great disservice to our constitution and to the principle of accountability.

In the face of the ANC's rallying around those implicated in this report, the DA is redoubling our efforts to ensure that every person who has done wrong is made to answer to South Africa.

Today we are presenting further evidence that we will be submitting to the Speaker of the National Assembly, Max Sisulu, at the first available opportunity to support the removal of President Zuma in terms of Section 89 of the Constitution.

This new evidence suggests that President Zuma may have deliberately misled Parliament, and violated the Constitution and the law. This warrants a full parliamentary investigation - which is specifically mandated by my motion to impeach President Zuma.

November 2012 Oral Question:

On 13 November 2012, I asked President Zuma an oral question in Parliament on the Nkandla scandal. In his response to this question he claimed complete ignorance denying his knowledge and involvement in the nearly R250 million upgrade to his private residence in Nkandla and claimed: "I have never asked government to build a home for me, and it has not done so. The government has not built a home for me."  He further substantiated this claim by saying: "What government did, given its own considerations of security, was to build other houses beyond my home for the security personnel. These are not shown on television and these are really the government's houses, but I do not know how much they cost."

The Public Protector, Adv Thuli Madonsela, duly considered in her nearly two year-long investigation whether some of these utterances made before the National Assembly were misleading, and therefore violated the Executive Ethics Code. In her report, she noted that while President Zuma did not tell Parliament the truth on the question of who built his ‘houses', he did not do so willingly.

The DA respects the authority of the office of the Public Protector and accepts her findings on this point. However there are a number of other statements made before Parliament that have not been resolved, or which were not considered by her office.

The bond on Nkandla:

During his reply to my oral question on Nkandla in November 2012, President Zuma said:

"I engaged the banks and I am still paying a bond on the first phase of my home. [Applause.] Even at that time, there were many allegations. If hon members remember, it is not the first time that my home has been paraded on television. Those rondavels were paraded, accompanied by lots of allegations. Yet, I am still paying a bond to this day."

In her report, Adv Madonsela notes that she sent a letter to the President to inquire as to whether he misled Parliament by making a false statement about this financing of developments at Nkandla. She specifically requested clarity on the bond, as well as proof.

President Zuma declined the opportunity to respond to the allegation and he refused her access to his bond documents, despite her attempts to get this information. It must be asked why, if he had nothing to hide, he did not fully cooperate with this request?

Accordingly, because of the lack of information provided by the President himself, the Public Protector did not make a finding on whether he misled Parliament on this matter resulting in uncertainty on his innocence in this regard.

The President must therefore still explain to the National Assembly why he did not fully answer the Public Protector and more importantly furnish copies of his bond - as was requested. This has major implications for whether or not they can consider his statement before the house as truthful.

The special ad hoc or ‘impeachment' committee will have the power to subpoena this document in the investigation of this matter, and we will expect a full explanation from the President himself on this potential misleading of Parliament.

Oral Question: March 2013:

Dissatisfied with the answers I received from the President in November 2012, especially in my bid to get clarity on his knowledge pertaining to the developments, I submitted a further oral question for the next oral question session on 20 March 2013.

My question read: Whether the President was informed of the upgrades at his private home in Nkandla in November 2010; if so, (a) on what date and (b) by what means?    

The President made two key points during his reply. The first acknowledged that he was fully aware of the difference between his involvement in his personal renovations to his home, and those being organised by the state: "In the recent past, and more particularly in the early part of 2008, the family commissioned certain improvements to the residences for its own account"

The President then went onto discuss the state ‘improvements' to his family residence:

"Actually, I was informed that improvements needed to be made at the family residence to enhance the security of the head of state. The nature and form of improvements were decided upon by the relevant officials through their departments. As already indicated, such information would not include details on the specifics about what would be done by whom and at what cost."

Interestingly, I can find no record of this reply being considered by the Public Protector in her report or investigation. It is perhaps the most revealing reply, because it provided an insight into whether or not the President was willing to put on record that he was aware of the details of the project - which were of such a magnitude that it would be - in my opinion - virtually impossible to ignore.

President Zuma's response makes a very clear impression that the specific details of the project were not made clear to him; that this matter was handled and decided upon only by relevant officials through their respective departments; and that he was merely informed that there needed to be improvements, and nothing more.

There is, however, to the contrary very clear evidence provided in in the Public Protector's report that the President not only had detailed knowledge, but that he was intricately involved:

Officials of the DPW and SAPS met with the President on 12 August 2012 to inform him of security measures that were to be installed.

The President stated that at a meeting he introduced his architect, Mr Makhanya, as an architect to senior government officials "and to appraise each other of their respective plans."

By May/June 2010, the President complained about the slow progress made with the appointment of the implementation of the Nkandla project, which was impacting on his private and family life.

Evidence shows that Mr Makanya ‘supposedly' had discussions with the President about the landscaping of the premises in August 2010 and May 2011. He also presented the President with the design of the swimming pool.

Deputy Minister Bogopane-Zulu stated in her evidence that the President supported her idea that the fire pool should be converted into a swimming pool to be used by the children of the village. The evidence further indicates that Mr Makanya apparently discussed the possibility of private costing in respect of the conversion with the President.

The evidence of Brigadier Adendorff and Mr Rindell also indicated that the President raised his concern about the design of the bullet resistant windows that had to be installed. This resulted in a change of the design that was implemented.

The President indicated to the Public Protector that he was involved in the decision to build a new kraal. In his response to the Provisional Report, he did not deny this.

Furthermore, the involvement of Mr Makhanya, and his relationship and numerous meetings with him over the upgrade, is incontrovertible evidence against his statement that he did not know "what would be done by whom and at what cost".

The evidence against him does not end here. His ‘emphatic' no to my question as to whether he had knowledge of the letter from the former Minister of Public Works, must also be scrutinised.

On this point, it is worth noting that the Public Protector states the following:

"The evidence further show that the former Minister of Public Works, Ms Mahlangu-Nkabinde, informed the President in writing, on 5 November 2010, of the details of the progress made with the implementation of the Nkandla Project. According to the evidence of officials of the DPW, it was their impression that the President indicated that he was satisfied with the progress report presented to him."

The legitimacy of this letter, which the President attempted to rubbish in his oral reply because of numerous signatures on it, is further confirmed by Deputy Minister Bogopane-Zulu as existing. In fact, she admits to signing it:

"During her interview, Deputy Minister Bogopane-Zulu confirmed that she also signed the letter of Minister Mahlangu-Nkabinde addressed to the President on 5 November 2010, providing him with a progress report on the Nkandla project."

The Public Protector's unanswered questions:

Added to this evidence is the President's failure to answer questions submitted by the Public Protector on key issues that would reveal whether or not he had misled Parliament. This failure creates a further suspicion around his intentions.

The President failed to answer a number of key questions which could have easily clarified the matter and placed him on record for Adv Madonsela's investigation:

Whether he or the presidency requested that security measures be installed at his private residence;

Whether he was at any stage informed of the cost of the proposed security measures;

Whether a notice declaring his private residence a National Key Point was served on him;

Whether he was presented by Mr Makhanya with the designs of the project;

Whether he received the letter consisting of the detailed report on the progress made with project that was sent by former Minister Mahlangu-Nkabinde on 5 November 2010;

Whether he received the document setting out the appointment of cost for the project that was prepared by the DPW;

Whether Deputy Minister Bogopane-Zulu discussed the conversion of the fire-pool to a swimming pool with him and whether he was aware of the reasons for this conversion;

Whether Deputy Minister Bogopane-Zulu discussed the design of the Military Clinic with him;

Whether he was consulted about the relocation of the households that were affected by the implementation of the project;

Whether he would be willing to disclose the amount that he paid for the construction of the new dwellings on his property;

Whether he at any stage enquired into the cost of the project.

These different strands of evidence come together to show that the President  - in both his statements before Parliament, and the manner in which they were presented -  created the impression before the House that he had limited knowledge of the details of the project. This is misleading.

The DA contends that there is enough prima facie evidence, as outlined above, to warrant a full investigation into both the November 2012 and March 2013 replies.

The Public Protector's Act:

Lastly, in my perusal of the report, it appears to me that the President of the Republic, in both failing to respond to the Public Protector, and questioning her authority to question him, would amount to a violation of the Public Protector's Act. This legislation makes it clear that the Public Protector can: ‘direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated'.

Furthermore, the Act makes it an offence to effectively undermine an investigation being conducted by the Public Protector.

This gives effect to provisions in our Constitution which not only ensures that Chapter Nine institutions are independent, but that also enjoins other organs of state to assist and protect them.

The Public Protector's report reveals - again and again - a condemnable failure by the President to fully cooperate with her office.

The evidence is as follows:

On 29 January 2012, the Public Protector wrote to President Zuma to request that he furnish evidence regarding his bond, following a specific complaint received on the potential of him misleading Parliament on this point.

The Public Protector received no response, despite having approached it again on 11 April 2013, 21 June 2013 and 19 August 2013. She also wrote to the President directly again on 29 July 2013. She again received no response.

At a meeting with the President on 11 August 2013, the Public Protector handed over a whole range of written questions. He did not answer these, forcing Adv Madonsela to approach the Director General in the Presidency on 26 August 2013.

On eventual request of the Presidency, a copy of the questions with annexures was provided again on 27 August 2013. But no answers were forthcoming.

The Public Protector was forced again to write to the President directly on 16 September 2013 to again request his responses.

The President eventually responded, not with clear answers to the 29 questions put to him, but with a statement on the matter.

In this statement, he noted that "I deem it neither prudent nor proper for me to comment particularly where the Public Protector has had access to a range of Ministers and officials properly tasked with this responsibility."

Since most of the questions were not answered, the Public Protector wrote to him again on 8 October 2013, listing the outstanding questions.

The President responded, not with the answers, but with a request for evidence to be furnished to justify the questions. He also refused to provide proof of the bond.

Where evidence was necessary, which was only for a few of the questions, the Public Protector submitted these - as he requested.

To this date, he has yet to reply and no further correspondence was received from him, which left a large number of the questions asked unanswered.

Furthermore, in a letter sent to the Public Protector, responding to the Provisional Report on 14 February 2014, President Zuma accused the Public Protector's investigation of being "tainted by lack of proper procedure" and he claimed that it lacked "integrity as this has been compromised by several leaks."

What is crystal clear from the information set out above is that President Zuma treated the investigation with disdain, did not fully cooperate with it, blatantly ignored correspondence from a Chapter Nine institution, and failed to provide all the information requested of him.

This is tantamount to contempt of court, should this have been in a court of law - and such conduct is an offence under Section 9 of the Public Protector's Act.

His belligerent attitude and non-compliance may also constitute a violation of the Constitution. It cannot be said that the President, as an organ of state, gave effect to Section 181 of the Constitution and did everything possible to assist the Public Protector with her investigation.

DA's motion to impeach President Zuma:

Misleading Parliament and the violation of the Public Protector's Act - and thereby the Constitution of the Republic of South Africa - are extremely serious charges against any president. The facts, as set out above provide further prima facie evidence that justifies a full investigation and consideration of impeachment of the President.

My motion, as submitted on 20 March 2014, makes provision for an ad hoc committee to look into both whether President Zuma misled Parliament and interfered in the Public Protector's report.

Section 89 is not a political tool for the removal of a President who has lost the confidence of Parliament. It is a severe sanction for wrongdoing. It is a punishment that has serious consequences - including losing the benefits of public office. Parliament must therefore not treat this as any other matter on its agenda.

Given this importance, the DA is concerned about the length of time being taken by Mr Sisulu to consider this request. In response to his correspondence to me on the 25 March 2014, I immediately sent him a further letter requesting an update on my request for an urgent meeting, as well as a clear time frame for when his decision will be made. He has yet to respond.

I will accordingly send this new evidence to his office and again request feedback from him as a matter of urgency.

Indeed, in the light of what I set out above it would be a great disservice to Parliament and to the Constitution not to consider this motion.

We will make sure we do everything possible to make this happen - and as soon as possible.

Statement issued by Lindiwe Mazibuko MP, Parliamentary Leader of the Democratic Alliance, April 1 2014

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