/ 25 June 2015

Police minister’s Nkandla report misses the key point

What exactly was making Nhleko sweat when he released his report on Nkandla is open to conjecture.
What exactly was making Nhleko sweat when he released his report on Nkandla is open to conjecture.

The conflicting official reports on the R246-million security upgrade at President Jacob Zuma’s private home in Nkandla, in all their disorienting secrecy and semantic manoeuvring, have left South Africans more confused and frustrated than ever. The political debate now revolves around one obvious question: was any of this money spent on nonsecurity comforts?

Yes, said public protector Thuli Madonsela in her report last year, and the president must therefore pay back a “reasonable percentage” of the amount spent on his new visitors’ centre, amphitheatre, cattle kraal, chicken run and swimming pool.

No, said Police Minister Nathi Nhleko in his report last month: these were all vital “security features”, for which the president “is therefore not liable to pay”.

Both are wrong.

The applicable law clearly states that even essential security measures must be paid for by the owner of the property being upgraded, even if he has not asked for or agreed to the upgrade. This draconian version of the “user pays” principle is found in the National Key Points Act, passed by apartheid securocrats in 1980 but still in force and still implemented by the current security cluster.

Sidestepping this, Nhleko’s report finds that “cost determination could not have been informed by the National Key Points Act, as it is not applicable in this particular instance”. He offers no official reasons for this conclusion, but the real reason is clear. What’s more, Nhleko is contradicted by the evidence obtained by amaBhungane in its lengthy legal fight for the Nkandla files under the Promotion of Access to Information Act.

Foremost is the 2010 certificate declaring Zuma’s Nkandla home a national key point, signed by Nhleko’s predecessor, Nathi Mthethwa, and explicitly acknowledged by the presidency.

In it, Zuma’s “attention is drawn specifically” to the section of the Act that makes him liable to pay for all security upgrades. It also tells him unambiguously that, as the owner, he is obliged to implement them “at own cost”. It even advises him that he “can submit a claim for tax deduction in respect of expenditure incurred on security measures”.

In 2013, the interministerial task team, in which Nhleko’s department played a key part, confirmed that the National Key Points Act applied, and even exploited that fact to classify their report “top secret”.

But they omitted the part about payment, only lamenting that “a Special Account was not established”, which could be used under the Act to provide “financial assistance, including loans” to owners implementing security upgrades.

Finally, Zuma himself, in his report to Parliament last year, acknowledged he had been advised that Nkandla was declared a national key point, and for that reason he instructed Nhleko, “as the designated minister under the National Key Points Act, to report to Cabinet on a determination as to whether the president is liable for any contribution in respect of the security upgrades”.

Nhleko did not do this. Instead, he sought to supplant the Act with a 2003 Cabinet memorandum that imposes no costs on the owner and no cap on costs to the state. But no Cabinet policy can trump an Act of Parliament. Nor can any number of video demonstrations.

No report can rewrite the facts and the law governing the Nkandla upgrade, hence the inescapable conclusion: Zuma must pay back the money.

Ben Winks is part of the Webber Wentzel legal team acting for amaBhungane in its case for access to the Nkandla files