Laughing all the way to a bankable error

PRESIDENT Jacob Zuma is well known for his three-part harmony chuckle, often rendered as “heh heh heh” in cartoons and other writings chronicling his mirth. Following the news that he timeously paid the money he was ordered by the Constitutional Court to hand over for five nonsecurity enhancements to his home in Nkandla, he has cause to chuckle frequently.

He has not actually complied with either the EFF demand that he “Pay back the money!” or with the remedial action the public protector required him to take in her famous Secure in Comfort report of March 2014.

Simple arithmetic reveals that the president has, thus far anyway, escaped with only the lightest of “fines” for the malfeasance perpetrated during the Department of Public Works’ debacle of excessive expenditure during the execution of supposed “security upgrades” at his country seat in Nkandla.

Estimates of the total expenditure vary: taking the lowest of these, R246m, and deducting, for the purposes of argument and not in expectation of recovery, the R155m the president niftily instructed the Special Investigating Unit (which can act only if so instructed by him) to recover from his errant architect, as well as the R7.8m craftily raised from an obscure bank and paid over by the president, there is a notional R162.8m that could possibly be paid back if the architect loses the case he is fighting and is good for the R155m.

The report of the public protector, which is binding and enforceable, requires the president to pay back the reasonable costs of all nonsecurity upgrades (of which there are many more than the five singled out in the court order).

If justice and accountability have prevailed, then simple arithmetic reveals that the security upgrades cost the taxpayer the princely sum of R83.2m. It is impossible that the genuine security upgrades could have cost anything of the kind. It is also not what the public protector had in mind.

A cursory glance at the Nkandla of today compared with the humble collection of rondavels of its prepresidential era reveals a myriad of nonsecurity expenditure on paved roads, landscaping, a new sewerage works, air-conditioning for all accommodation and new wooden doors all round. What these have to do with security is extremely obscure. No wonder the famous presidential chuckle was so much in evidence during his confident display during question time in the National Assembly on September 13. The man obviously thinks he got away with it.

The reactions of the affected parties in the Nkandla litigation — the EFF, the DA, the Office of the Public Protector and, perhaps, Corruption Watch (a friend of the court, not actually a litigant) will have signalled to Zuma that he really has scored heavily due to the limited scope of the order. The nation has unwittingly gifted the president all the nonsecurity upgrades save for the swimming pool, chicken run, cattle kraal, visitors centre and amphitheatre.

CAN the litigants be such asses as to allow this? Is the law such an ass? Hopefully not.

The ink was barely dry on the court order of March 31 when Accountability Now wrote to the public protector on April 4 to complain that the scope of the terms of the order erroneously and illegally dilutes the appropriate remedial action contemplated in her report.

The public protector’s report reads in paragraph 11.1 that the president must: “Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW [Department of Public Works] at his private residence that do not relate to security, and which include the visitors centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool … [and] … Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.”

Somewhat differently, the court order, in paragraphs 5 and 6, without explanation and in contradiction of the finding of the court that the remedial action quoted above is binding and enforceable, requires that: “5. The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the president’s Nkandla homestead that do not relate to security, namely the visitors centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only.

“6. The National Treasury must determine a reasonable percentage of the costs of those measures, which ought to be paid personally by the president.”

The error in the court order is both patent and expensive. The nonsecurity upgrades have been limited to the five examples referred to by the public protector. If the order is left unchanged, the president will not have to pay back most of the money reasonably spent on nonsecurity upgrades.

Also on April 4, Accountability Now wrote to the secretary-general of the ANC and asked that the error in the orders quoted above be rectified by responsible action on the part of the president. The letter records the position taken up by the president: “The debacle over the nonsecurity enhancements to Nkandla has unfortunately not ended with the judgment of the Constitutional Court. In his apology to the nation on April 1 2016, the president let it be known that it was always his intention to comply with the remedial action of the public protector as set out in her Secure in Comfort report. He said: ‘It was never my intention not to comply with the remedial action taken against me by the public protector’”

IT IS now plain the president had his fingers crossed behind his back when he mouthed these words on television during his half-hearted and insincere apology to the nation. He has complied with the court order, but not with the remedial action required of him by the public protector.

The law allows the court, of its own volition or on application by any affected party, to correct the error in the judgment. It seems that the court will not do so unasked and it has not responded to wide media coverage of the error it has made.

It is incumbent on the affected parties — the public protector and the two political parties that were applicants in the litigation — to make an application to the court under rule 42 of the high court rules to rectify the error in the judgment.

The Constitution itself requires of the court and the affected parties that the “dignity and effectiveness” of the public protector must be protected.

The calculations above show that the effectiveness of the remedial action taken against the president by the public protector has been unwarrantedly diluted by the narrow ambit of the orders made in error by the court. It is right and proper that the error be corrected in the interest of justice and to promote the exacting of accountability on the part of the president.

It is also high time that the justice administration acts on the complaints to the police about the debacle in Nkandla. These complaints of fraud, theft and corruption based on the report of the public protector were laid by Accountability Now in December 2013 and by the DA and EFF in March 2014.

The president has not yet been held to account properly — “heh heh heh”. If he is not required to pay back all the money reasonably expended on nonsecurity upgrades, there will have been a failure of the rule of law, a violation of the constitutional requirement that the public protector’s dignity and effectiveness be protected by the president and a gross injustice to the long-suffering taxpayers of the nation. The insincerity of what the president said on television during his “apology” has been exposed.

• Hoffman SC is a director of Accountability Now

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