Nkandla: President Zuma never intended to comply with Public Protector’s remedial actions

20 November 2015

Note to Editor: Adv Glynnis Breytenbach MP was joined by Democratic Alliance Leader, Mmusi Maimane MP.

The DA will today file its affidavit is response to President Jacob Zuma’s answering affidavit in which we show that the President has not given effect to the remedial action as prescribed by the Public Protector. Equally, that he never intended to comply with the remedial action from the outset.

In rigorous pursuit of legal clarity on the force and effect of the Public Protector’s remedial action, the DA approached the Western Cape High Court on two separate occasions in the matter of Democratic Alliance v South African Broadcasting Corporation SOC Ltd and Others.

In our review application the Western Cape High Court came to the determination that “an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to the of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings taken by the Public Protector.”

In considering the DA’s review application the Supreme Court of Appeal (SCA) later concluded that “an individual or body affected by any finding, decision or remedial action taken by the Public Protector is not entitled to embark on a parallel investigation process to that of the Public Protector, and adopt the position that the outcome of that parallel process trumps the findings taken by the Public Protector.” This judgement has serious ramifications for President Jacob Zuma and his liability for the R246 million Nkandlagate scandal into which a quarter of a billion rands of taxpayers’ money was plunged.

The DA thus contends that the President effectively acted in direct contravention of established legal precedent on a number of occasions throughout this debacle. Most notably when he appointed the Police Minister to make a determination of how much he was liable to pay for the non-security upgrades at Nkandla. This clearly constituted a “parallel process” which is so obviously not in line with due process.

In light of this express judgment by the SCA the President, in his answering affidavit, has changed his tune by making baseless claims that he has given effect to the Public Protector’s remedial action. This simply isn’t true and the DA in its affidavit will demonstrate that this in fact a recent fabrication.

The DA therefore submits that President Zuma has not complied with the remedial action as outlined in the Public Protector’s report entitled “Secure in Comfort’’. In fact, by his actions, he has demonstrated that he never intended to give effect to the remedial actions taken,  which has made it necessary for the DA to approach the highest court in the land to come to a final determination on the force and effect of the Public Protectors remedial actions and to compel President Zuma to act in accordance with established legal precedent and due process, both of which he professes, rather hollowly, to respect.

The President’s suggestion that he has fulfilled and always intended to fulfill the remedial actions is farcical. This is because he has steadfastly refused to meaningfully engage the Public Protector report and instead offered excuses such as that he would  give full and proper consideration to the matter upon receipt of the SIU Report, he has demonstrated that he is not someone who believes that he is bound to comply with the remedial action of the Public Protector.

Similarly, he deemed it “appropriate” to designate the Minister of Police - not the SAPS - to determine how much he is to pay back,  ignoring the Public Protector; the President deliberately erected a “parallel process” that the SCA determined was inconsistent with due process.

If the President took issue with the remedial actions contained in this report, it would be for him to simply take it on review to the High Court. The absence of any such review application is in itself further evidence that he never had and still has no intent on engaging the Public Protector in any way.

The President in his affidavit inexplicably goes further to state that he has “implemented the remedial action in the PP [Public Protector] report and remain committed to complying.” This is devoid of any truth..

In the first of the Public Protectors remedial actions she orders that “the President is to take steps, with the assistance of 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, and which include [but are not limited to] the Visitors’ Centre, the amphitheatre, the cattle kraal and the chicken run, the swimming pool.’’

To date the President has not reprimanded the Ministers who are involved in this scandal as ordered by the Public Protector but rather he has erroneously attempted to conflate this express remedial action with his scapegoating of fairly junior Public Works officials.

The President also never actually reported to Parliament on what he has done to give effect to the remedial actions as was ordered. Instead he has inappropriately communicated to Parliament that he would designate certain individuals - most notably the Police Minister- to report to Parliament. He was not authorised to appoint a proxy in this regard and has therefore failed to comply with the remedial actions of the Public Protector.

It is abundantly clear that the President did not comply with this part of the remedial actions as he did took no steps to determine the reasonable cost of the upgrades that fell outside those necessary for security.

The Public Protector also admonished the President to pay back a “reasonable portion” of the money for non-security upgrades.  He has not done so. We therefore submit that when the President claims that he has complied, he is being entirely disingenuous and deliberately misleading both the highest court of the Republic and the South African people who want justice in this regard.

Contrary to what President Zuma claims, his conduct throughout this process has been marred by obfuscation, unlawfulness and a blatant disregard for the Constitution.

In his vexatious pursuit to avoid accountability he has not complied with the remedial action of the Public Protector; but rather treated that office with utter contempt. The President now seeks to appeal to the Constitutional Court, asserting that he has always engaged the Public Protector in a manner befitting her office. The backpedalling and dishonesty is manifestly irrational and we hope the Constitutional Court will reject the Presidents representations on that basis.

The Western Cape High Court was clear in this matter, as was the SCA. The DA is therefore confident that the Constitutional Court will not dismiss the DA’s application but confirm, as the final arbiter in this regard, that the Public Protector cannot simply be ignored and that the President cannot escape liability for “unduly benefitting” for the upgrades at Nkandla at R246 million of taxpayer Rands.

This requires that Jacob Zuma pay back that for which he is liable, and is not something he can pass off to some other hapless individual.

Indeed President Zuma is on record as stating that “corruption is a Western paradigm”, but as President of a Constitutional democracy, President Zuma cannot evade accountability, nor absolve himself from his personal liability in this matter at the expense of the taxpayer.

Jacob Zuma must take full responsibility for his actions that saw the abuse of public funds at Nkandla.

The DA maintains that Jacob Zuma, and only Jacob Zuma, must pay back every single rand owing at Nkandla.

Statement issued by Adv Glynnis Breytenbach MP, DA Shadow Minister of Justice, 20 November 2015