Cape Town - The State will not be able to build a claim against President Jacob Zuma on the basis that he benefited unduly from the R246-million revamp of his Nkandla home, a parliamentary law adviser said on Thursday.
Ntuthuzelo Vanara told Parliament's ad hoc committee drafting a report on the Nkandla controversy that Public Protector Thuli Madonsela's finding that Zuma derived undue benefit from the so-called security upgrades to his house was potentially flawed.
He said Madonsela was, by her own admission, not a security expert and reached her conclusion that some of the improvements - which included a swimming pool and helicopter landing pad - were not related to security by looking at a general police list of security steps rather than at a Cabinet memorandum on safety for heads of state.
“So anything that is not in this list and she does not get a satisfactory explanation for, she will then come to a view that it is not a security feature,” he said.
Vanara added: “It is a bit of a challenge for myself when the person making these calls is not a security expert.
Madonsela should have consulted the Cabinet memorandum on securing the homes of heads of state, and then brought in experts to testify whether what was done at Nkandla was in line with this.
“Security experts as per the memo are not solicited to conduct the necessary security analysis and to identify what then would qualify as security and what would qualify as non-security.”
He concluded that it would therefore be difficult to prove a case against the president and that Madonsela would not be a particularly helpful witness.
“I respectfully submit that it will be very difficult proving undue enrichment on a balance of probabilities.”
He added that he believed the finding of undue benefit was “premature” because a court would need proof that the defendant had been enriched.
The committee is considering Madonsela's report as well as that of the Special Investigating Unit - which found that Zuma had been enriched because the value of his property has been enhanced - and another by a ministerial task team.
The committee has made it clear that it will reject Madonsela's recommendation that Zuma be made to repay the state for luxuries added to his home with taxpayers' money.
The president has written to the public protector that he does not consider himself compelled to “rubber stamp” her findings, and the ruling party has found succour for this view in a ruling by the Western Cape High Court last month.
In his judgment in a case brought by the Democratic Alliance over SABC boss Hlaudi Motsoeneng’s appointment, Judge Ashton Schippers said that remedial action ordered by the public protector was not binding on persons and organs of state.
But he went on to add that her findings were not mere recommendations that organs of state could reject without rational reasons.
ANC MP Mathole Motshekga said on Thursday the committee was acting in line with the judgment because it was applying its mind to her report and giving cogent reasons for disagreeing.
The draft report before the committee - which consists only of ANC members after the opposition withdrew in protest - absolves Zuma from any responsibility for the flouting of public finance rules at Nkandla, but calls for officials to be brought to book.
A clause drafted on Thursday commends Zuma's swift response to reports of misspending and notes that it was a sign of government's commitment to fighting corruption.
The committee is meant to finalise the report next week before submitting it to the National Assembly.
- Sapa
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