Madonsela exposes the rot at the heart of Nkandla
In an ideal world – possibly public protector Thuli Madonsela’s – the many additions to President Jacob Zuma’s Nkandla homestead would have changed the lives of the impoverished local villagers.
Picture an elderly woman making use of a new clinic, while her grandchildren take swimming lessons at the nearby pool. She knows that in case of emergency she can be airlifted to hospital by helicopter, thanks to a new helipad. And thanks to new homes built for police members, reporting a crime is but a short walk away.
But this is not what happened at Nkandla, as revealed in Madonsela’s final investigation report into the matter. Instead, all of the above facilities were located close to Zuma’s home and inaccessible to the locals.
Accessing the clinic would mean entering Zuma’s homestead, either by scaling the security fence or through a police checkpoint. The swimming pool has never been used by the local residents. The clinic remains without stock, although Madonsela’s team hopes it will serve its "purpose" in the future.
On Wednesday, she released the fruits of two years of investigation into the state upgrade of Nkandla in a report titled Secure in Comfort, raining down findings of maladministration, improper behaviour, ethical violations and procedural failings on several ministers and their departments, and on Zuma himself.
Madonsela found he had improperly benefited from a grand, excessive, opulent and obscene government upgrade to his homestead and should repay a "reasonable percentage" of about R20-million worth of upgrades.
Features for which Zuma should bear at least part of the cost, Madonsela said, include the swimming pool (which never really was a "fire pool") and the cattle kraal, which she said Zuma himself had had a hand in.
The report makes many findings and adds comments that go beyond its immediate recommendations, perhaps laying to rest some of the mysteries that have puzzled the nation for years, including that:
- Zuma probably did mislead Parliament by saying the state had not built his family’s houses – but he seems to have done so by mistake and therefore was not in violation of ethical rules;
- Madonsela wrote to Zuma alerting him to the allegations surrounding Nkandla in January 2012, but he failed to take any action;
- The dramatic ballooning of costs on the Nkandla project was closely linked to the actions of Zuma’s personal architect, Minenhle Makhanya, and his appointment as effective government lead project co-ordinator; and
- Contrary to insinuations made by the ANC that Madonsela is trying to influence the elections, the report could have been published in April last year but for delays caused, primarily, by the presidency.
It was also revealed that the swimming pool was conceived as such and not as a "fire pool", as claimed by government ministers. Former deputy public works minister Hendrietta Bogopane-Zulu approved of the idea because she thought it could serve the broader community.
She proposed talks with Swimming South Africa to negotiate free swimming lessons for Nkandla’s children. The talks did not materialise.
Madonsela could find no reason why the swimming pool, the helipads, a military clinic and housing for members of the police’s VIP protection service were not located closer to the community rather than behind the security fence of the Zuma compound. She said that the government’s explanations were also inadequate.
"The government submission makes a point of highlighting the inhospitable terrain of Nkandla coupled with, at the time, lack of infrastructure such as roads, and properly resourced health facilities and police stations. [Former surgeon] General [Vejaynand] Ramlakan’s submission that there were no such central places is contradicted by evidence.
"For example, a helipad near a rural hospital or police station could offer enormous relief to this remote community. The building of the police staff quarters at a local police station would have left a legacy for the community," Madonsela said.
Ramlakan also tried to justify the location of the facilities by explaining that the George Airport was built near former president PW Botha’s home in Wilderness.
Madonsela was not convinced.
"Firstly, that airport is 23km from the said private residence and, secondly, it supports the point about catering for the needs of the caretakers in a manner that takes into account that public resources should be primarily deployed to meet public needs," she said.
Meanwhile, the cost of these facilities continued to grow. The police facilities were "obscenely excessive", she said. And moving Zuma’s neighbours to make way for the construction was also not justifiable, she said, despite the government’s claims that they were a threat to security.
"I could not find any authority or legitimate reason for classifying the relocation of the households at state expense as a security measure as envisaged in any of the authorising security instruments."
Although these concerns plagued Madonsela’s team, they do not appear to have plagued Zuma, who complained bitterly about the slowness of the construction and the inconvenience this caused his family.
The picture Madonsela paints of him is not pretty. She shows a president quick to delay compliance with his legal duty to answer questions from her office, and seemingly eager to apply dubious legal arguments to undermine her work.
But the self-centred approach and questionable tactics went well beyond Zuma and the presidency, Madonsela found, with Cabinet ministers undermining trust not only in her office but also in the government as a whole. The government has also not come out of the saga unscathed.
"The minister of public works’ communication with Parliament, the nation and, possibly, the president was riddled with inaccuracies and inconsistencies, particularly regarding the regulatory framework employed to justify state expenditure on the upgrades at the president’s private residence, the nature of the upgrades and the extent to which the president and his family benefited from the relevant installations. This has grossly undermined trust in government."
Finding the way: The public protector did not paint a pretty picture of Jacob Zuma. (Madelene Cronjé)
Thuli's 12 questions – and damning answers
The public protector boiled her investigation into Nkandla down to 12 questions. Here is the gist of them and the answers she found:
1. Was there legal authority for state spending on Nkandla and, if so, was it violated or exceeded?
There was authority, but it was improperly activated and most thoroughly violated.
2. Did the state bodies involved in Nkandla violate supply-chain rules or act improperly?
Yes. In fact, they “failed dismally”.
3. Did the Nkandla upgrades go beyond what was required for the security of the president?
Yes. To the extent that some of the upgrades were unlawful.
4. Was the expenditure excessive?
5. Did the president, his family and relatives improperly benefit from state spending on Nkandla?
Yes. Zuma’s brothers may not have directly benefited as alleged, but Zuma and his family as a whole did benefit improperly.
6. Was there maladministration in the Nkandla project?
Yes. Every high-ranking official either made mistakes or is guilty of maladministration.
7. Was there political interference in the project?
Perhaps inadvertently, but yes. There was the belief among technocrats that there was political pressure on them, and they acted accordingly.
8. Were funds diverted from much-needed government projects to fund Nkandla?
Yes. Money intended for inner-city regeneration and managing the risk of dolomite (which leads to sinkholes) went to Nkandla.
9. Is Zuma liable for some of the costs incurred?
Technically he may be liable for a great deal, but in fairness, he should repay only a portion.
10. Is Zuma guilty of ethical violations?
Yes. He failed to protect state resources, should have asked hard questions as early as December 2009, and (probably inadvertently) misled Parliament.
11. Were there other, more general, “maladministration issues”?
Yes. The state unlawfully occupied land adjacent to the homestead, and many of those involved in the probe (most seriously Zuma himself) delayed its conclusion.
12. Is there a problem with the rules regarding the benefits due to presidents, their deputies and former holders of office?
Yes, and unless they are remedied, there could be another Nkandla.
Slings, arrows, legal half-bricks and executive caltrops
Despite sticking strictly to documented cases directly related to the Nkandla investigation – and never straying into the territory of press conferences or private conversations – public protector Thuli Madonsela paints an extraordinary picture of the many attempts to prematurely end, delay, frustrate, cancel or otherwise undermine the report she released this week.
Some of the efforts were highly visible, such as the abortive November 2013 attempt by the security ministers to secure what practically amounted to court-sanctioned censorship rights over the report.
Throughout the report are hints at many other attempts and stratagems.
“The investigation has had an unprecedented number of threats to litigate, right up to the eve of the release of the report.”
Madonsela writes that, at one point, she was dealing with seven attorneys and five advocates representing various parties. “Many of these threats involved an intention to prevent the publication of the report.”
At one point, in early 2013, the state attorney, the chief state law adviser and several ministers “insisted” that the Nkandla investigation should be suspended, she writes. But she refused.
At other times lawyers acting for President Jacob Zuma argued that Madonsela was not fit to question security measures because she is not a security expert, and the military medical head, Lieutenant General Vejaynand Ramlakan, told her she was not competent to question the medical arrangements.
She was told that the existence of other investigations meant there were no longer allegations of impropriety for her to investigate; she was denied access to “top secret” documents, which she later downloaded from the web; and, in one case, the presidency delayed – for nine months – the provision of information that it was obliged, by law, to give to the protector on request.
But perhaps the most curious attempt to invalidate the investigation, also by Zuma’s legal team, was a technical challenge on the deadlines in the investigation of possible ethical violations.
Normal rules call for an alleged breach of the Executive Ethics Code – such as lying to Parliament – to be investigated within 30 days.
Part of what Madonsela investigated was just that, which was why Zuma’s lawyers said that the failure to conclude the entire investigation in a month would make it invalid, she says.
“I am particularly saddened by the fact that such a submission was made by the ultimate custodian of executive accountability,” Madonsela says, before expounding at considerable length in blistering prose on the flaws in the President’s logic.
“It seems odd that the right of members of the public to exact accountability with regard to ethical conduct by members of the Cabinet … would be extinguished simply because investigative timelines have been missed,” she writes.
“An approach that supports public accountability and, accordingly, the rule of law, would not seek to aid members of the executive to evade accountability.” – Phillip de Wet
Stop protecting Number One
“The ANC took a momentous decision in September 2008 when it ‘recalled’ a president. Today, the ANC could do the same – or at least ensure that Jacob Zuma is not the party’s presidential candidate in May and spare the country impeachment proceedings.
“Instead of protecting him, the ANC needs to put the country and its people first. It should strengthen bodies such as the public protector, rather than undermining them, and should bolster the independence of the judiciary and criminal justice system.”
See our editorial, “Stop protecting Number One”
Madonsela’s most notable quotes
The public protector’s report into Nkandla runs to 443 pages, and is packed with information, analysis and findings. It also contains some startling quotes, referring to elements of the Nkandla project as “obscenely excessive” and “unconscionable”, and saying that state organs “failed dismally” and others engaged in “shenanigans”.
These are some of the report’s most notable quotes:
• “No evidence has been found indicating that the trigger mechanisms for the state to get involved, financially, in respect of any law, [were] complied with.”
• “It is not difficult to comprehend why government officials, particularly at a fairly low level of the food chain, would have difficulty controlling a consultant who was presented by and claim[ed] to speak with the president’s concurrence or authority. My opinion is that even a minister could have had difficulty countermanding [Zuma’s appointed architect Minenhle] Makhanya.”
• “When asked, during the inspection, why a cattle culvert and chicken run, [Zuma’s architect] Makhanya said ‘this is how they do it in England’.”
• “It is difficult not to reach the conclusion that a licence-to-loot situation was created ...”
• “... Virtually all parties either failed to do what they were required to do, or did what they were not supposed to do.”
• “Worth nothing is the fact that no evidence indicates that any of the state actors took prudent action when the Mail & Guardian blew the whistle on the runaway cost of the Nkandla Project in 2009, alleging then that an exorbitant amount of R65-million had been spent ... I am quite certain that, had such prudent action been taken, we would not be speaking of R215-million [and] counting today.”
• “The excessive and improper manner in which the Nkandla project was implemented resulted in substantial value being unduly added to the president’s private property.” – Phillip de Wet