DA to challenge Police Minister’s determination on Nkandla

19 July 2015

In the week ahead the Democratic Alliance (DA) will be continuing its participation on the Ad Hoc Committee established to consider the Report by the Minister of Police, Nathi Nhleko, into the President’s liability for the upgrades to his private residence at Nkandla. 

The DA will use this opportunity to oppose the Police Minister’s exoneration of the President from any and all accountability, and fight to have the remedial actions ordered by the Public Protector enforced.

While the DA will not be party to the rubber-stamping of the Police Minister’s Report, it will participate on the Committee as part of a robust undertaking to have the report invalidated.

To this end the DA’s participation on the Committee in no way condones the Report by the Minister of Police which we contend is fraught with credibility issues, at odds with constitutional principles and is therefore irrational.

Our primary focus this week will be to challenge Minister Nhleko’s report on the grounds that it lacks legal standing and cannot invalidate the remedial actions ordered by the Public Protector, Adv Thuli Madonsela, in her report entitled “Secure In Comfort.”

The DA stands firmly behind the Public Protector’s Report and rejects any attempts to subvert her findings. The DA has long argued that if the President was unhappy with the Public Protector’s report, it is for him to take her remedial action on review. President Zuma is yet to launch such a legal challenge to have the Public Protector’s remedial action set aside. Its findings therefore stand.

The Public Protector found that President had unduly benefitted and should repay “a reasonable percentage of the cost” of the non-security upgrades, further stipulating that the decision regarding the President’s liability be determined with the assistance of the National Treasury and SAPS. Consequently the Minister of Police has no legal authority to override the Public Protector and find that the President was not in any way liable.

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 –

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;

It is therefore our submission that, as a result of his conflicted position, the Minister inevitably produced a report that unsurprisingly exonerated the President.

On the 23rd of June 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:

The Minister is biased and subject to a conflict of interest as a member of Cabinet.

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 and is, in places, factually inaccurate.

The Report cherry-picks “evidence” from “experts” and from reports that substantiate what was clearly a pre-determined conclusion.

The Police Minister’s Report erroneously confines itself to a limited number of items identified in the Public Protector’s report as needing to be paid in full or in part by the President while ignoring other non-security upgrades.

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

The DA will therefore make use of every opportunity this week, including the site visit to the President’s homestead on 22 July, to further substantiate why the Report by the Police Minister should be rejected.

Should the Committee fail to reject the Report, and ultimately absolve the President of any liability, we will be left with no option but to pursue all available avenues to see that the Public Protector’s findings are upheld.

In a fair society no individual should be above the law. The DA will not relent in our pursuit to see that President Zuma is held to account for what amounts to the theft of public funds at Nkandla.

The submission can be found here.

Statement issued by DA leader, Mmusi Maimane, July 19 2015