Thuli's wide scope of scrutiny
A key plank of the ANC and government's spin offensive against the public protector's report on Nkandla has been the claim that Thuli Madonsela's findings "confirm the essential" findings of the interministerial task team report released late last year.
The "similarities" they cite between the two reports supposedly include the findings that state money was not used to build President Jacob Zuma's private residence and that his security is the state's responsibility.
The ANC did indicate its concerns over the "differences in the remedies to the problems and deviations found by both investigations".
The most obvious of these is Madonsela's recommendation that Zuma repay "a reasonable percentage" of the total cost spent on "non-security comforts" during the almost R250‑million upgrade at Nkandla.
These include the visitors' centre, the amphitheatre, the cattle kraal and chicken run, and the swimming pool.
But although the government and the ANC appear to maintain the view that Madonsela's report echoes key findings of the ministers' report, it is difficult to see how this conclusion has been reached.
A comparison of the two reports highlights major differences in their conception, approach and, crucially, their terms of reference. In particular, the investigative scope of the reports is vastly different.
Independence of investigations
Minister of Public Works Thulas Nxesi appointed the interministerial task team with the assistance of State Security Minister Siyabonga Cwele and Police Minister Nathi Mthethwa in October 2012 to investigate the cost of the Nkandla security upgrades.
This means that ministers whose own departments were inextricably linked, by their legal mandates, to the upgrade initiated the task team investigation. By contrast, Madonsela's investigation began at the end of 2011 after her office received one of seven complaints to be lodged by members of the public and the Democratic Alliance.
Her independence from the executive is enshrined in section 182(1)(c) of the Constitution.
The task team's 50-page report followed three months of investigation and covered the period 2009 until January 2013.
Madonsela's probe took much longer – three years, in fact – and covered a more extensive period, ending in March 2014; it was also far more detailed and voluminous, at 443 pages.
Both investigations made use of site inspections, interviews with officials involved in the upgrade and internal documentation – but there is one glaring difference in approach.
The task team limited its interviews to lower-ranking civil servants and directors general, whereas Madonsela interviewed the ministers of police, public works and defence, the acting state attorney, presidency staff and the president himself.
Initially, the ministerial task team's investigation was intended to clarify media allegations that more than R200‑million had been spent on the upgrades at Nkandla, far beyond meeting legitimate security needs.
The task team and Nxesi admit this in an "explanatory note" attached to the report, noting "that during 2011 and 2012 there were sustained and increased media allegations that the president used state funds to build his private home in Nkandla".
Yet closer inspection shows that there is little focus in the final report on the amount spent by the state and whether this exceeded Zuma's security requirements.
Central to the task team's investigation was looking at "the conduct and management of the security upgrades at Nkandla" – in other words, its narrow focus largely sidestepped scrutiny of Zuma and his ministers.
Consistent with its emphasis on technical and administrative aspects unrelated to Zuma's role, the task team looked at whether legal processes had been followed in declaring Nkandla a national key point.
It was interested in details of the initial funds allocation and budget for the project and by whom it was approved. It also analysed in detail the recommendations made by the State Security Agency, the South African Police Service, the public works department "and other statutory role players in respect of the upgrading of security measures at Nkandla".
Madonsela's investigation was far wider in scope. Like the task team, she examined supply chain management prescripts and compliance "with applicable laws and policies in relation to security privileges accorded to presidents, deputy presidents, former presidents and former deputy presidents", but her probe also included assessing "the propriety of the conduct of the president and others allegedly involved in the implementation of the impugned upgrades".
She looked at whether public works had funded projects that went "beyond what was required for his [Zuma's] security", and whether state expenditure was excessive or amounted to opulence on a grand scale, as had been alleged.
Madonsela assessed whether Zuma or his family "improperly benefited from the measures taken, buildings and other items constructed and installed at the president's private residence". She also asked whether Zuma was guilty of ethical violations relating to the project.
The task team's main reference to whether Zuma personally benefited from the security upgrades is the indication in its report that, after its findings were presented, certain "clarity questions" were raised.
Although the report does not say who raised these questions, they related to the "tuck shop, the fire pool, the relocation and reconstruction of the kraal, the retaining wall, visitors' waiting room and the relocation of neighbouring families".
All of these, the report finds, fell within the state's responsibility to ensure the safety and security of the head of state and his family.
These findings were apparently used to support the task team's conclusion that "no public funds were used to build the president's private houses that were in the process of being built and/or completed when the security upgrades project commenced".
Madonsela's investigation spent much time assessing "the conduct of the president … against the pursuit of ethical standards imposed on members of the executive by section 96 of the Constitution and the executive ethics code issued under the Executive Members' Ethics Act".
This led to her finding that, as head of state, the onus was on Zuma to pay attention to the "excessive" upgrades at his private residence since 2009.
Madonsela makes several references to a December 2009 Mail & Guardian article, in which allegations of excessive state expenditure at Nkandla first emerged. She finds that it would not be "unreasonable to expect" that, when this story broke, both the Constitution and the executive ethics code required of Zuma to take reasonable steps to order an immediate inquiry and immediate correction of any irregularities.
Critically, it was Zuma's continued failure in "discharging his responsibilities" as "the ultimate guardian of the resources of the people of South Africa" that motivated her adverse finding.
* Got a tip-off for us about this story? Email [email protected]
The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See www.amabhungane.co.za for our stories, activities and funding sources.