South Africa

Security ministers take Public Protector to court over Nkandla report

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As Nkandla turns into a neverending story, a group of government ministers say they will lodge an appeal against the Nkandla report – just as their jobs come up for renewal

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In a statement released before the weekend, the ministers responsible for the police, the military, justice and intelligence (referred to collectively as the ‘security cluster’) declared that they would lodge a petition to investigate and declare Public Protector Thuli Madonsela’s report into President Jacob Zuma’s Nkandla homestead in KwaZulu-Natal invalid.
 

Asking for a “judicial review” of the report, the members of the security cluster have repeatedly been claiming that the report is invalid due to the fact that it is contrary to the doctrine of the separation of powers – in addition to claiming that it is “irrational, contradictory and (…) informed by material errors of law”. How exactly they will go about arguing their case has, however, not been disclosed at this point.The timing of the petition comes just ten days before the president’s swearing-in ceremony for his second term, with the jobs of these security cluster ministers being up for renewal by that deadline. With their necks on the line, this repeated emphasis on the part of the ministers might imply that they are moving closer to lodging their appeal. Otherwise, having dismissed the report on two public occasions before, their renewed vows to fight the report might appear as somewhat of a moot point.

 

It is unlikely that an actual review will achieve anything but a show symbolic resistance, as there is no precedent in South African case law of any revision to a public prosecutor’s judgment. The nature of the report itself makes it unlikely to even have it submitted for revision, as it is a highly publicised case.

However, by appealing against the report the South African courts will inevitably have to deal with the matter for the next two to three years, according to constitutional experts. This will inevitably buy the president time to further evade the subject. With more than 650 other fraud and corruption cases standing out against the president, it may be a while until he might even have to begin to answer to any questions.

Madonsela in the meantime has distanced herself from the appeal motions, saying that she “could not imagine any court of law finding in the ministers’ favour,” and adding that this course of action would break with legal protocol in the first place.

“The architecture of our constitutional democracy as we understand it requires that the matter be debated in Parliament first. Should there be no common understanding, the matter can then be taken to court.”

In her March report entitled “Secure in Comfort”, Public Protector Thuli Madonsela had found that the president and his family had unduly benefitted from ‘security’ upgrades at his private Nkandla homestead, which now includes a visitors’ centre, an amphitheatre, a helipad as well as a swimming pool and a cattle kraal among other taxpayer-funded improvements.

Madonsela had also asked the president – in an unbinding fashion – to repay at least R20 million of the R246 million worth of controversial construction work at the Nkandla site, which Zuma has dismissed as a non-issue. Weeks later, Zuma finally reacted to the damning report after a long period of ignoring the sensitive subject ahead of the general elections, insisting that the upgrades had indeed been performed with the improvement of security measures at Nkandla in mind after one of his wives had been raped there in 1998.

Despite criticism from the ANC and several government members, the “Secure in Comfort” report has at least helped to raise Madonsela’s public profile internationally, with Time Magazine placing her among the world’s Top100 influential individuals in 2014 while also strengthening her popularity in cross-partisan politics.

Whatever may follow, it would appear we are bound to hear more news from Nkandla for years to come.

By Sertan Sanderson

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