Former police commissioner Bheki Cele's objections to a provisional adverse finding by the public protector about his role in the Nkandla security upgrades saga, could delay Thuli Madonsela's final report and give President Jacob Zuma breathing space ahead of the elections.
The protector has provisionally found that Cele failed to stop fruitless and wasteful expenditure at Zuma's homestead at Nkandla.
Cele was commissioner from July 2009 until his suspension on October 24 2011. He was fired in June 2012 after a board of inquiry reccommended he be removed from office.
Cele is challenging the finding and is demanding that public protector Thuli Madonsela provide him with documents from the South African Police Service (SAPS) to help him to prepare his response, which may delay the release of the report until after the elections.
The Mail & Guardian has obtained a letter in which Madonsela informs Cele that the SAPS and the departments of defence and public works had failed to "implement and apply a proper demand management process in respect of the process, the expenditure involved and value for money for the state, and the progress made on a regular basis on the Nkandla project".
"This did not happen and everything was left basically in the hands of the consultants and the DPW [department of public works] office bearers and officials of the regional office involved."
In the letter to Cele, Madonsela writes there was no indication that Zuma paid or was requested to pay for any of the security measures at his home. The ANC has since last year demanded that the report be released as soon as possible. A party insider wondered this week if it would not be better for Zuma to face the elections with an inconclusive cloud hanging over him rather than a definite finding of guilt.
Madonsela wrote that the police minister had declared Zuma's private residence a national key point, in terms of the 1980 National Key Points Act, on April 8 2010.
"In terms of the declaration and the relevant provisions of the National Key Points Act, the president was obliged to take measures at his own cost and to the satisfaction of the minister of police "to prevent or counter subversion, espionage and sabotage and/or to apply emergency measures in a situation of emergency and disaster.
"Therefore, everything that had to be done in terms of security at the president's private residence (as a national key point) was, as from April 8 2010, not to be funded by the state but by the owner, President Zuma. I could find no indication during the investigation that the president paid or was requested to pay for any of the security measures that were installed and implemented at his private residence by the DPW."
Madonsela refused to respond to the M&G questions, saying the office does not comment on purported leaked documents and ongoing investigations. "The public protector cannot also disclose the party that has requested the extension."
The M&G understands that the ANC will meet with Madonsela's team on February 4, a meeting the protector had requested last year as part of the annual stakeholders' consultation meetings she holds with political parties represented in Parliament.
The meeting with the ANC did not happen last year as the ruling party turned down an invitation in the middle of a public argument following the leaking of details of the Nkandla report.
"They said they were not available. I think they just didn't want us," said an insider from the public protector's office.
The source said, although the meeting was not meant to discuss the Nkandla investigation, Madonsela's office was expecting the ANC to raise the matter and the party was at liberty to add any item to the agenda.
Madonsela announced that one of the respondents has been given an extension until February 8 to respond to the report.
But her office has made it clear that the decision on when the report will be finalised will only be made after an assessment of the responses. The office did not name the party that requested the extension.
In her letter to Cele, Madonsela wrote: "Section 38 of the [Public Finance Management Act] provides that the accounting officer of a department must ensure that it has and maintains an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost-effective. It is also the responsibility of the accounting officer to guard against fruitless and wasteful expenditure.
"From the time that the Nkandla project commenced, the procurement procedures followed were different from the norm and failed to comply with the prescribed standards of proper demand management and budgeting.
"No proper needs assessments were prepared and consultants and contractors were appointed by means of negotiated and nominated procurement processes or direct appointments, instead of following the default requirement of an open tender, on the basis of urgency, which was not substantiated.
"The excessive expenditure incurred by the state in respect of the Nkandla project was the result of a failure on the part of the SAPS, [department of defence] and DPW officials responsible for the implementation of the Nkandla project to guard against expenditure that was not necessary for the security of the president, and where it was necessary, to focus on what was reasonably affordable."
Cele, through his lawyers, is now preparing to contest the basis upon which the finding against him was made. His lawyers told Madonsela the interim adverse findings against their client "was not premised on the contents of any official documentation or witness accounts but the mere fact that he served as the accounting officer of the SAPS during the period covered by your investigation".
Cele's spokesperson, Vuyo Mkhize, did not want to comment on the correspondence, but said: "Unfortunately, Cele's response to your inquiry is untranslatable into English and even if it were, you would consider it to be unprintable.
"Suffice to say he will not sit back and silently look on while he is being unfairly pilloried for 'delaying' the finalisation of an investigation that is, quite frankly, drowning in an ocean of its own incompetence and prejudice. You can go ahead and publish whatever your faceless sources want you to; he will find his own platform to tell his side of the story," said Mkhize.
Cele visited the offices of the protector on January 16 and, according to his lawyers, persuaded Madonsela to accept that he could not be reasonably expected to provide answers on a matter of such importance without reference to work papers and relevant information pertaining to the inquiry directed at him.
Cele's lawyers, Strauss Daly, said they expected Madonsela's office "would attend to issue a request and/or subpoena to the minister of police and/or South African Police Service calling for all the documentation relevant to the SAPS involvement in the Nkandla project including, but not limited to, memoranda and correspondence between officials and departments that would enable our client to provide answers based on institutional memory; and would also thereafter revert to our client on the response or documentation received and afford him an opportunity to make meaningful representations based on what is received".
A source close to Cele said that the former police commissioner is aggrieved that the protector had conducted the two-year investigation and had not made any contact with or interviewed him until the end of the process.
He said Cele is unhappy that ,by the time she sought a response from him, she had already publicly committed to a public deadline. "We are stunned by this," said the source.
He said it would raise questions about the integrity of the public protector if it releases a report soon without providing Cele with the documents and then affording him time to respond. "It would vindicate Cele's contention that it was a premature conclusion."
Security upgrade 'for owner's account'
President Jacob Zuma could either be made to repay the full amount spent on renovations to his house, or he could face charges arising from the National Key Points Act if he received a notice requiring him to pay for the renovations and he knowingly failed to do so.
In the letter written to former police commissioner Bheki Cele, public protector Thuli Madonsela warns that, in terms of the declaration and the relevant provisions of the National Key Points Act, the president was obliged to take measures at his own cost and to the satisfaction of the minister of police "to prevent or counter subversion, espionage and sabotage and/or to apply emergency measures in a situation of emergency and disaster".
Therefore, everything that had to be done in terms of security at the president's private residence (as a national key point) was, as from April 8 2010, not to be funded by the state but by the owner, being Zuma.
"I could find no indication during the investigation that the president paid or was requested to pay for any of the security measures that were installed and implemented at his private residence by the DPW [department of public works]," Madonsela wrote. The Nkandla project resulted in expenditure for the state in excess of R200-million.
But Zuma could not be prosecuted for failing to comply with the National Key Points Act if he was not informed of his responsibilities arising from it, which would lay the blame on Police Minister Nathi Mthethwa.
The Act provides that, on receipt of a notice of a declaration of a place as a national key point, the owner of the national key point concerned shall, after consultation with the minister, at his own expense take steps to the satisfaction of the minister in respect of the security of the said key point.
If the owner fails to take the steps, the minister may by written notice order him to take, at his own expense, the necessary steps regarding the security of the key point as may be specified in the notice. The penalty for failing to follow the required steps means the owner can be fined or imprisoned.
"If the said owner, without reasonable cause, refuses or fails to take the steps specified in the said notice within the period specified therein, he shall be guilty of an offence and liable on conviction to a fine not exceeding R20 000 or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment," reads the Act.
The Act specifically provides that, where the minister takes over the necessary measures to provide the required security, the owner shall be liable for the cost to an extent that the minister may determine.
Last year, the M&G reported that a leaked provisional report showed that Zuma had derived "substantial" personal benefit from works that exceeded security needs at his Nkandla homestead and was required to repay the state.
Cabinet members have justified the tax millions splurged on Nkandla, saying it was essential to provide Zuma with appropriate security.
But a swimming pool, visitors' centre, amphitheatre, cattle kraal, marquee area, extensive paving and new houses for relocated relatives were all improperly included in the security upgrade at "enormous cost" to the taxpayer, Madonsela found.
Madonsela's provisional report recommends that Parliament call Zuma to account for violating the executive ethics code on two counts: failing to protect state resources and misleading Parliament in suggesting that he and his family had paid for all structures unrelated to security. – Rapule Tabane