If allegations are true that the state is ploughing R203 million into upgrading President Jacob Zuma’s private home at Nkandla, he might be in breach of the law, says constitutional law expert Pierre de Vos.
Public Works Minister Thulaws Nxesi says he and his department are “not aware” of the amounts that City Press reported at the weekend would be spent on improvements at Nkandla. The newspaper said documents in its possession indicated Zuma would be paying only five percent – around R10m – of the costs.
Now, Nxesi says he is launching an investigation into how the newspaper ended up in possession of what he says is “a top secret document” that the newspaper evidently obtained “illegally”.
The DA has accused Nxesi of “shooting the messenger”. Party spokeswoman on public works, Anchen Dreyer, said she would ask for an urgent meeting of Parliament’s public works oversight committee so that Nxesi could be called to explain both the alleged spending and his plans to probe the newspaper’s actions.
In a statement on Tuesday, Nxesi said no details would be given about any work being carried out at Nkandla. This was because it fell under the National Key Points Act.
But he defended any spending on security arrangements at the remote KwaZulu-Natal presidential compound and said these were “approved and carried out… in line with the Ministerial Handbook”.
De Vos – writing in his blog, Constitutionally Speaking raises a number of questions about both the use of the Act – introduced during the height of apartheid in 1980 – and the handbook.
He says the Executive Members’ Ethics Act and code of conduct bars any president from using his position to enrich himself, or to disregard administrative rules that apply to him.
De Vos says the Ministerial Handbook clearly states that cabinet members must pay “for all costs related to the procurement, upkeep and maintenance of private residences used for official purposes”.
While some costs for security arrangements at private residences can be paid by the state this was limited to R100,000, according to Annexure E to the handbook, adopted by cabinet on June 11, 2003.
The difference in cost had to be carried by the public office bearer.
“The president is clearly a public office bearer. Nkandla is clearly his private home… Any amount above R100,000 spent on any upgrades at Nkandla (even for security-related reasons) are therefore not spent in accordance with the provisions of the Ministerial Handbook and must be deemed unlawful,” De Vos states.
And he says, while the National Key Points Act allowed for the use of public funds to protect them, this had to be paid from the Special Account for the Safeguarding of National Key Points and only on instruction of the Minister of Defence.
The government could refuse to give information on security measures at Nkandla but could not use the Act to “try and hide unlawful expenditure on the upgrading of his private house through the looting of public funds”.
De Vos says in a constitutional democracy, legislation can never be used to hide unlawful conduct, maladministration or corruption – nor be used “to try and escape from accountability for the spending of public funds.”
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