Nkandla architect bound by non-disclosure agreement

Architect Minenhle Makhanya is facing confidentiality hurdles in his fight against a R155-million claim lodged against him as principal agent during the security upgrades to President Jacob Zuma’s Nkandla residence. 

Even though Makhanya might know more than the public protector Thuli Madonsela about what really went down during the Nkandla upgrades, he is currently bound by the provisions of the Protection of Information Act.

The KwaZulu-Natal architect signed the confidentiality agreement with the department of public works after he was made a member of its secretive National Committee on Prestige (NCOP) when it hired him on the Nkandla project. 

A copy of  the “Non-disclosure agreement: NCOP” given by the department of public works to Makhanya and others involved in Nkandla, which the Mail & Guardian has seen, highlights provisions of the Protection of Information Act and warns the signatory of the dangers of revealing any information.

It states: “I understand that I shall be guilty of an offence if I reveal/disclose any information which I have in my disposal by virtue of being a member of the National Committee on Prestige (NCOP), and concerning which I know or should reasonable [reasonably] know that the security or other interests of the DPW (Department of Public Works) and the Republic require that it be kept secret from any person (s) or body other than a person (s) or body: 1. To whom I may lawfully reveal it, or 2. To whom it is my duty to reveal it in the interests of the Department of Public Works and/or the Republic, or 3. To whom I am authorised by the head of the department or by the chairperson of the National Committee on Prestige, or an officer authorised by him to reveal it.” 

The agreement Makhanya signed further states that these provisions and instructions apply not only during his tenure as a member of the committee, but also after completion of the project or termination of his services with the Department of Public Works. 

“I am fully aware of the serious consequences that may follow any breach or contravention of the said provision or instruction,” the agreement concluded.

Internal issues
Yet, the Department of Public Works Prestige Unit is currently facing its own internal upheavals, as one of its directors Noloyiso Ntwana was recently dismissed after the Special Investigating Unit (SIU) probed a lavish R60-million spend on renovations to ministerial homes. Ntwana was allegedly fired for breaching the government’s procurement polity and appointing an unregistered quantity surveyor.  

In a surprise move after it completed its investigation into the security upgrades at Nkandla, the SIU lodged a R155-million claim against Makhanya. This was for allegedly authorising and overseeing the implementation of improvements and installation of security measures at Nkandla, which it claims was “in excess and beyond the security assessments and requirements” of the police and defence force.  

Makhanya’s attorney Barnabas Xulu last week filed a notice in court, requesting the SIU provide him with access to 40 documents he requires to fight the claim against his client. 

Requested documents
Among the documents listed as required to prepare a defence are internal department of public works documents on Nkandla, the South African Police Service (SAPS) and South African National Defence Force (SANDF) reports on security assessments at Nkandla, the approval by the minister of public works for the costs of the security measures, and the approval and appointment of Makhanya. 

Xulu has also requested a copy of the SIU final report into Nkandla, dated August 2014, which was handed to Zuma but has not yet been released to the public. When the SIU responds to his request for the documents in court next week, and if he succeeds in accessing the Nkandla documents, Xulu said he would then seek further legal advice on how to get around the confidentiality agreement Makhanya signed with the Department of Public Works. 

“There is all this security stuff around the work he did on Nkandla,” said Xulu. “It would be criminal for my client to breach the confidential agreement he signed. We will have to find a way forward.” 

Xulu said his client was claiming he could not be held liable for the excessive spend on Zuma’s private home, which lies in Nkandla, a rural area in the province of Kwa-Zulu Natal. Makhanya is currently paying his own legal fees, but Xulu said he would also be looking into that issue, which was a matter of concern for his client. “My client is paying his own legal bills at the moment,” said Xulu. 

“But there is an urgency around this issue, as he was acting for the department of public works, and my client claims he was not liable for the excessive spend. Who is now going to be funding this litigation?”

Madonsela’s findings
The spokesperson for the SIU, Boy Ndala, confirmed the unit had received a request for documents from Makhanya’s attorneys. “The Unit is working on its response, which will be filed within the next few days,” Ndala said. “The matter remains sub judice.” 

In Madonsela’s report on the upgrades at Nkandla, entitled “Secure in Comfort”, she said Makhanya battled to explain why various items that could not be regarded as security measures had come to be built at Zuma’s private home. These luxury items added to the government’s Nkandla bill included an amphitheatre, a kraal with a chicken run and a cattle culvert, a visitor’s centre, extensive paving, a swimming pool that police commissioner Riah Phiyega at first attempted to describe as a “fire pool”, and the relocation of Zuma’s neighbours. 

Madonsela’s report found that Zuma and his family improperly benefitted from the security upgrades paid for by state funds, and said he should pay back “a reasonable amount” of the money spent on the non-security upgrades. Although the public protector never specified an amount Zuma should refund the state, she said the South African Police Service and the national treasury should assist him in working out how much to repay. 

‘Pay back the money’
Last month, members of Parliament from the Economic Freedom Fighters, led by Julius Malema, showed that the country’s patience with Zuma over Nkandla is fast running out, as they banged their red mining hats and chanted in the house: “Pay back the money! Pay back the Money.” 

The estimated costs of the upgrades to Nkandla stand at R246-million, but the upgrades are not yet completed, said the public protector. Madonsela found that state officials had “failed dismally” to follow the supply chain management procedure which led to inflated costs of the project. 

Makhanya was found to have made R16.5-million in fees on Nkandla, and while Zuma has distanced himself from the non-security luxuries added to his home, the public protector’s report documented occasions when the President was consulted about security features, as well as the controversial swimming pool.

The public protector found Zuma introduced Makhanya to the department of public works, which then appointed him as its Nkandla principal agent, without first putting the post out to tender. While Makhanya was principal agent, the costs had escalated excessively, she said.  

In her report, Madonsela said that Makhanya became the state’s main adviser on what was needed to be done for security upgrades, but she said he also remained the president’s architect and adviser. She said this had placed Makhanya between the project team and Zuma, shifting the power from state officials to Makhanya, which led to a case of the “tail wagging the dog.” 

Following the SIU’s multimillion-rand claim against Makhanya, new documents relating to the Nkandla security upgrades are certain to be revealed in court, and further top-secret revelations could come tumbling out.

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