Why the National Key Points Act is unconstitutional and invalid

Public Works Minister Thulas Nxesi has provided contradictory and seemingly false justifications for the use of public funds for the R240-million upgrade of President Jacob Zuma’s private house. He has also invoked the draconian Apartheid-era National Key Points Act in an attempt to evade government accountability for this unlawful spending. There is only one problem: many sections of the National Key Points Act are almost certainly unconstitutional.

When the scandal first broke, Thulas Nxesi justified the alleged splurge of approximately R240 million of the taxpayer’s money on President Jacob Zuma’s private home by claiming that the expenditure complied with the provisions of the Ministerial Handbook. Last Friday, after it was pointed out that the Handbook limits state expenditure for security upgrades at the private homes of public office bearers to R100,000, Nxesi suggested that Zuma was not bound by the Ministerial Handbook: “The Ministerial Handbook is just one little piece, but if you’re talking about the head of state, you’re talking about something far beyond that.”

Nxesi’s latest contention can only be true if the president is not a public office bearer (which would mean he is a king or a demi-god or president-for-life); that the president is above the law and therefore not bound by ordinary legal rules; or that some other piece of legislation overrides the provisions of the Ministerial Handbook. The National Key Points Act seems to be the only piece of legislation which could trump the provisions of the Ministerial Handbook.

It is unclear how the National Key Points Act can be applicable in this case, as the Act provides for the creation of a Special Account for the Safeguarding of National Key Points and directs that any loans or other financial assistance to the owner of a private property declared a National Key Point for security upgrades must be paid from this account on instructions of the minister of defence.

Yet when the director-general of public works presented the department’s Strategic Plan and Budget for 2012 on 15 May 2012, the director-general submitted a document to Parliament indicating that the Nkandla splurge would be financed by the department of public works as part of its Prestige Portfolio (despite the fact that Nkandla is a private home and not the property of the state). Either the director-general misled Parliament or the upgrade is being funded (unlawfully) from the budget of the department of public works.

In any case, the fact that the director-general shared the information with Parliament also suggests that the spending of R240 million on Zuma’s private home only became a top secret matter of national security when it embarrassed the president.

Even more problematic is the fact that several sections of the National Key Points Act are almost certainly unconstitutional and hence invalid.

Section 2 and 2A empower the minister of defence to declare any property or complex a National Key Point “if it appears to the minister at any time that any place or area is so important that its loss, damage, disruption or immobilisation may prejudice the Republic, or whenever he considers it necessary or expedient for the safety of the Republic or in the public interest”. Section 10 creates a criminal offence by prohibiting anyone from providing “any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there”. (The Act is also outdated, as it refers to the draconian Official Secrets Act of 1956, which was repealed back in 1982.)

These sections, read together, criminalise some forms of expression relating to National Key Points and constitute a clear infringement on the right to free expression, which includes freedom of the press and other media and freedom to receive or impart information or ideas. The infringement could be justified by the limitation clause if the infringement was imposed by a law of general limitation and was reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The first problem is that these provisions of the National Key Points Act cannot be viewed as the provisions of a law of general application. That is because the Act does not require the minister to announce publicly which properties have been declared National Key Points; in fact, the government has on several occasions refused to provide us with a list of properties declared National Key Points.

As Justice Mokgoro stated in the Hugo case, the requirement that only laws of general application can justifiably limit human rights flow from the concept of the Rule of Law. Laws must be accessible, precise and of general application because a “person should be able to know of the law, and be able to conform his or her conduct to the law”. This is not the case here. The National Key Points Act creates criminal offences relating to Key Points, but we have no idea which properties have been declared Key Points and are unable to comply with the law because we are not allowed to know what the law has prohibited. On this ground alone, these provisions cannot stand.

A second problem is that the minister is given a vast, unfettered, subjective discretion to declare a building or complex a National Key Point. In other words, the Act says as long as the minister believes that, among other things, it is “expedient” for the “safety of the Republic”, he or she can declare a building a National Key Point and thereby limit the right to freedom of expression. This discretion is overbroad and a court would almost certainly find that less restrictive means could have been used to achieve the goal of safeguarding so-called National Key Points.

There is also a third, more general problem with the Act. Throughout, it bestows vast discretionary powers on the minister of defence, not only to declare Key Points, but also to decide how security should be handled at these Key Points and who should pay for such security upgrades. Parliament therefore delegated much of its law-making power to the minister of defence without providing any clear guidelines on how these law-making powers should be exercised. This is in contravention of the separation of powers doctrine, as the National Key Points Act bestows law making powers on a member of the executive, powers which the Constitution requires the legislature to exercise.

Given the unconstitutionality of the National Key Points Act, I would suggest that Minister Nxesi starts scouting around for yet another justification for the unlawful expenditure of R240 million of public funds on the private home of an elected politician who might well be out of office within the next two years. Who knows? It might be fourth time lucky for the minister.

- Constitutionally Speaking