Nkandlagate: Apartheid law protects Zuma
A piece of legislation dating from the apartheid security state stands in the way of the public finding out how much they are paying for Nkandla.
Taking pictures of President Jacob Zuma's residential complex in Nkandla from a public road and police officials – including VIP guards at the gate of the compound – will be helpful. But try to take photographs of a sign at the entrance of a power station in Limpopo, and security guards are bound to get aggressive.
Such are the vagaries in the application of the National Key Points Act of 1980, a piece of legislation dating from the apartheid security state that, according to the department of public works, stands in the way of accounting to taxpayers about spending at Nkandla.
But the law finds its strangest and most inconsistent application in the lack of concern government officials have shown in disclosing details of security at nuclear sites, while claiming that any release of rand amounts in the Nkandla controversy would be illegal, as would releasing audit reports relating to such spending.
That assertion will be tested again in coming weeks, when Public Works Minister Thulas Nxesi receives a report on the Nkandla prestige project from an internal task team. Nxesi this week again stressed that the findings would be made public, but would not commit to releasing the full report.
In October, the acting director general in his department, Mandisa Fatyela-Lindie, said she would face criminal prosecution if she had released Nkandla numbers, despite claiming a document she had delivered to Parliament that costed the Zuma homestead work at R248-million could not exist.
That is a remarkably harsh interpretation of a law that others have taken far less seriously in the past.
In 2006, the then minister of trade and industry, Alec Erwin, claimed a loose bolt that shut down the Koeberg nuclear reactor was an act of sabotage. Although he may not ultimately have been found guilty of a criminal offence, that statement would have been enough for a spirited prosecution; the National Key Points Act sets very strict conditions under which "any occurrence arising out of or relating to terroristic activities, sabotage, espionage or subversion" at a key point may be mentioned.
In early 2011, a security company published details of the solution it had sold to the Nuclear Energy Corporation of South Africa, down to the model numbers of biometric access readers at gates in Pelindaba, the nuclear complex near Hartbeespoort dam. The Key Points Act specifically outlaws the release of "any information relating to security measures" at sites designated under it.
Similar information has been released for other sites classified as key points, though of arguably less importance, such as airports.
In 2012, however, amid the furore around Nkandla, even a list of key points is considered too sensitive to release. In mid-November a formal application by the Right2Know campaign for such a list was denied by the police because providing it "will impact negatively on and jeopardise the operational strategy and tactics used to ensure security at the relevant property or safety of an individual".
The campaign plans to launch an appeal to that denial under the Promotion of Access to Information Act within days, but is already considering the subsequent court action that is likely to follow a second refusal.
"We expect they'll tell us 'no' around Christmas time, and that we'll launch a court application sometime in January," said national spokesperson Murray Hunter. "We are very prepared to litigate on this."
Last week the M&G Centre for Investigative Journalism (AmaBhungane) followed exactly that route after an application for information relating to the presidential development at Nkandla to the department of public works was denied. Though the information request, first lodged in July, specifically excludes technical details of security measures, the department first said it could not comply, then ignored a subsequent appeal.
Although the Right2Know application deals broadly with key points and their administration, the AmaBhungane appeal is specific to Zuma's homestead and documents relating to a needs assessment and the process and value of contracts awarded.
Such information is protected because the Nkandla site is a key point, the department of public works said in its initial refusal.
If that is the case, the M&G centre argues in its papers, Zuma himself may be criminally liable for revealing, in Parliament, that security upgrades included bullet-proof windows and a bunker. If not, it said, then Zuma's disclosures show "that even the president must be of the view that there is no legal obstacle to revealing details about what has been procured" for the development.
The sites you are not allowed to know about
An official list of national keypoints is a risk to national security, according to the government’s interpretation of the law. But in their day-to-day business, ministers, their departments and parastatal organisations seem not at all loath to disclose the status of some such points. A combination of speeches and documents delivered in Parliament, government and parastatal tenders, court documents, job adverts and organisation websites, all publicly available, makes possible at least a partial list of installations that carry the keypoint classification.
- The Union Buildings;
- Koeberg, and possibly all other power stations;
- Pelindaba, the nuclear research facility near Brits;
- OR Tambo, Cape Town and Durban airports;
- The Reserve Bank building in Pretoria;
- Eskom’s national control centre;
- The national control centre for the electronic national administration traffic information system (eNaTIS);
- The proposed core site for the Square Kilometre Array (SKA) telescope in the Karoo;
- The government printing works responsible for the manufacture of documents such as passports;
- Various Denel properties, including an ammunition factory;
- Various properties where private company AECI manufactures explosives;
- Certain sections of Onderstepoort, where biological research is done; and
- Storage sections of the Durban harbour.
Also presumed to be included – though this cannot be confirmed – are post offices, police stations, transmitters and a wide range of government buildings.
How many national key points are there? That too is apparently confidential, perhaps to the extent of obfuscation in their administration to prevent anyone from extrapolating the number. A single regulatory filing by the Airports Company South Africa notes the “National Key Point numbers” for its facilities, with OR Tambo as 00078 and Cape Town airport as 00047. King Shaka airport near Durban, however, carries the number 013332000, which would prevent anyone with access to that number to deduce how many other sites carry the classification.