Legalbrief | your legal news hub Friday 01 October 2021

Minister sets foundation for Nkandla challenge

Police Minister Nathi Mthethwa has given the clearest indication yet that the government will challenge the damning finding of that President unduly benefited from the R246m 'security upgrading' of his private Nkandla home, notes a report in The Times.

Mthethwa said the security cluster of Ministers had identified 'inaccuracies' in Madonsela's report. He would not elaborate, saying merely that they would be specified at a later stage, notes the report. Until yesterday, the only other indication that Madonsela's report would be challenged had come from ANC secretary-general Gwede Mantashe, who told a media briefing that Madonsela's findings were similar to those of an inter-ministerial team. But that team exonerated Zuma and put the blame on former Public Works Minister Geoff Doidge, his deputy, Henrietta Bogopane-Zulu, and lowly government officials. Defence Minister Nosiviwe Mapisa-Nqakula said at the breakfast briefing: 'We won't respond now. It's not as if we don't have views on the Public Protector's report. The government, at an appropriate time and when we have given ourselves time, will respond to the Public Protector's report.' Full report in The Times

A Business Day report notes that initial ANC and government responses to the report rely heavily on the inter-ministerial task team report that exonerated Zuma. The party has said the reports were the same 'in body' but arrived at different conclusions. Business Day quotes constitutional law expert Shadrack Gutto as saying while the Public Protector's findings could be taken to a court for review, this would raise questions of jurisdiction. The strategy of lending more weight to the report of the inter-ministerial task team, too, was a risky one, as it was 'incomparable' to the Public Protector's because of the independence of her office. Gutto said aside from jurisdiction, turning to the courts would also 'over-politicise' the matter. 'Who is the complainant,' he asked. 'I don't think it is a route that is possible. What would the review do? Courts don't investigate.' Madonsela's report and that of the inter-ministerial task team were 'incomparable' as the Ministers were implicated in the matter themselves, Gutto added. 'In this case, the Ministers are the wrongdoers, you can't have the wrongdoers investigating themselves,' he said. Full Business Day report (subscription needed)

The NPA will be requested to prosecute individuals implicated in the Nkandla affair within two weeks, according to a Beeld report, noting this stems from the Special Investigation Unit's investigation and findings. SIU head Vas Soni reportedly said the investigation - prompted by presidential proclamation in December - was almost complete. Soni said the SIU will approach the Department of Public Works with evidence against individuals in the department within a week. Within a month, Soni said, the SIU will approach civil courts for repayment of monies from culprits. Soni emphasised that the SIU investigation differs from the Public Protector's investigation as the former aims to produce 'tangible results'. Full Beeld report

The DA, however, wants a full repayment plan by Zuma to be tabled in Parliament for the monies he owes taxpayers as a result of the Nkandla project. According to a BDlive report, DA parliamentary leader Lindiwe Mazibuko said she would write to both Zuma and National Assembly Speaker Max Sisulu calling for the plan to be tabled in Parliament. 'We cannot simply trust that this will happen unless we ensure maximum transparency,' she said. The report notes the National Assembly rose two weeks ago in preparation for the 7 May national and provincial elections, but the National Council of Provinces (NCOP) is still in session. Deputy President Kgalema Motlanthe said there were plans to recall the National Assembly for at least one day in April for it to consider Bills being processed by the NCOP. The DA wants that recall extended by at least another day to debate Madonsela's report.

But the DA isn't leaving it there. 'I can also announce further - given the worrying developments we have referred to - that the DA will seek legal advice on what recourse there is in the law to ensure that President Zuma and all other implicated parties comply fully with the recommendations in the report, should they fail to do so,' Mazibuko said. She said one of these 'worrying developments' was the 'all-out effort to shield President Zuma from being held accountable'. 'His Ministers have led the charge in this regard over the last two years and they, too, must be held accountable for acting in the best interests of an implicated President, rather than the people they are duty-bound to serve,' Mazibuko is quoted as saying in the BDlive report. Full BDlive report

The FF Plus is also seeking an urgent parliamentary debate on the Public Protector's report, notes a report on the News24 site. 'The will... be asking the Speaker of the National Assembly for an urgent debate of public interest about the Nkandla report,' party leader Pieter Groenewald said yesterday. Although Parliament was in recess, the FF Plus viewed the issue as being of such public importance that Sisulu 'will have to make an exception, and even organise a special session of Parliament'. Groenewald said the request was different to the DA's substantive motion, which would 'most probably be blocked by the ANC's majority'. He said his party was also starting a campaign - on Facebook and on Twitter - with the slogan: 'Protect the Public Protector.' This was to ensure that incumbent Thuli Madonsela - who released the report last week - completed her term, 'and that her safety is guaranteed'. Full report on the News24 site

Cracks are beginning to show in the ANC reaction to the report. According to a Mail & Guardian Online report, Mthethwa has defended National Police Commissioner Riah Phiyega after ANC leaders accused her of misleading the party by claiming the swimming pool at President Jacob Zuma's was not a recreational facility but a fire pool. ANC secretary general Gwede Mantashe and the party's treasurer general Zweli Mkhize demanded last week that action be taken against Phiyega for misleading the party's national executive committee about the swimming pool in January. Said Mantashe: 'Officials who have gone public with inaccurate information must be censured, like the information and description of the swimming pool as the fire pool, and the details given to explain this matter constitute a misrepresentation of facts. The Minister of Police is expected to take appropriate action in this regard.' But Mthethwa yesterday appeared reluctant about taking action against Phiyega. 'When she (Phiyega) was speaking on the issue, because there was a need to identify a water reservoir, whatever she said on the matter was said by the security cluster. It's not her (personal) view,' said Mthethwa. Phiyega made a presentation to the ANC NEC in January and assured leaders that the swimming pool was a fire pool, notes the report. Full Mail & Guardian Online report

A proposed amendment to the Executive Members' Ethics Act, which would have strengthened Parliament's role in holding Zuma to account, seems to have been forgotten after three years in the legislative process, notes a Business Day report. Madonsela's strongest finding of direct wrong-doing by Zuma was that he had violated the Executive Ethics Code for his 'failure to act in protection of state resources' in the spending on his private home. However, the Act, which should have been amended to provide a procedure for Parliament to follow in the event of a breach by the President, was never changed. In the case of a breach by other members of the Executive, the President is compelled to submit the report of the Public Protector to Parliament together with his own report on any action to be taken. UCT law professor Pierre de Vos yesterday described the Act as a 'legal absurdity', saying: 'It assumes the President would act against members of the Executive and ... would never be in a position of breach. (It) contains a legal absurdity as it requires the President to decide what action to take against himself.' The report adds in May 2011, the Department of Justice and Constitutional Development published a proposed amendment for public comment: in the event of a breach by the President, the Public Protector would present her report to the speaker of Parliament, who would refer it to a committee for further investigation. But the proposed amendment was never tabled in Parliament for processing. Full Business Day report (subscription needed)

Mantashe, meanwhile, has summoned the party's youth wing over disparaging remarks it made about Madonsela, notes a BDlive report. The ANC Youth League went on the offensive after the release of the Nkandla report last week. It called for Madonsela's resignation, saying she was 'compromised to the bone'. And Defence Minister Nosiviwe Mapisa-Ngakula reiterated the ANC's support for Chapter Nine institutions such as the office of the Public Protector. She described some remarks by the Youth League as 'sexist' as they criticised Madonsela's looks. And ANC spokesperson Jackson Mthembu 'noted with regret' the comments made by the league and ANC-aligned student organisation Congress of South African Students. He also distanced the party from the views of the Youth League, reaffirming the party's support for the office of the Public Protector. Full BDlive report

Minenhle Makhanya, the who was paid R16.5m to work on Nkandla, has been stopped from practising three times by the SA Council for the Architectural Profession, says a report in The Mercury. Makhanya has been suspended for non-payment of his annual subscription fees for the 2013/14 financial year, which ends on 31 March. The architectural council's spokesperson reportedly said Makhanya owed it R4 067, including penalties. His failure to pay his annual fees dated back to 2001 when he was suspended for non-payment; this happened again in January 2009, but he subsequently made a payment in February that same year. This was the same year that upgrades on Zuma's home started. The spokesperson said that although Makhanya's debt dated back to last April, he had had until the end of August last year to pay, an extension given to all defaulting members. It was only when Makhanya failed to meet that deadline that he was suspended. Full report in The Mercury (subscription needed)