Public Works violated SA's Constitution on Nkandla says Madonsela

Public Protector Thuli Madonsela delivered her report on President Jacob Zuma's Nkandla residence, saying him and his family unduly benefited from the upgrades made by an estimated R246 million.

Ms Madonsela’s long-awaited, 400-page report on Nkandla, titled Secure in Comfort and released in Pretoria on Wednesday, "conservatively estimated" the value of the upgrades at R246m, following her probe.

Implementation of the security measures failed to comply with the parameters set out in the National Key Points Act of 2010 and the Cabinet Policy of 2003.

The expenditure incurred by the State, including buildings constructed by the Department of Public Works at the request of the SAPS and the Department of Defence, went beyond what was reasonably required for the President’s security, was unconscionable, excessive, and caused a misappropriation of public funds.

Failure to spend state funds prudently is a contravention of section 195 (1)(b) of the Constitution and the Public Finance Management Act.

Ms Madonsela said Mr Zuma had told Parliament that his family had built its own houses, the state had not built any of it and the president and his family had not benefited from the improvements.

In November 2012, Mr Zuma told Parliament: "Let me make one thing quite clear … my residence in Nkandla has been paid for by the Zuma family. All the buildings and every room we use in that residence was built by ourselves as a family, and not by government. I have never asked government to build a home for me and it has not done so, the government has not built a home for me."

"This was not true," Ms Madonsela said, adding that Mr Zuma and his family benefited from a government-built visitors’ centre, a cattle kraal and chicken run, a swimming pool and an amphitheatre, among other facilities.

No evidence found that President Zuma’s brother improperly benefitted from the measures implemented.

Allegation that the excessive expenditure added substantial value to the President’s private property at the expense of the state is substantiated.

Zuma’s immediate family improperly benefitted form upgrades. The clinic on the family’s doorstep will benefit the family forever. So will the non-security comforts (swimming pool/amphitheatre). The acts and omissions that allowed this to happen constitute lawful and improper conduct and maladministration.

The conduct of the Department of Public Works leading to the failure to resolve the issue of items earmarked for the owners’ cost transparently, including the failure to report back on the swimming pool question after the 11 May 2011 meeting and the disappearance of the letter proposing an apportionment of costs, constitutes improper conduct and maladministration.

Officials of the Department of Public Works, Defence and SAPS failed to acquaint themselves with the authorising instruments relating to the implementation of the Nkandla projects. They failed to apply their minds and adhere to the supply chain management policy framework in respect of the procurement of goods and services for the Nkandla projects. These failures constitute improper conduct and maladministration.

Money diverted

The protector also found that a critical service delivery programme was shelved and money diverted to the Nkandla upgrades.

“Funds were reallocated from the inner-city regeneration project and the dolomite risk management programme of the Department of Public Works,” the report said. “Due to lack of proper demand management and planning, service delivery programmes of the Department of Public Works were negatively affected.”

The protector said the conduct of the department violated section 237 of the constitution and the Batho Pele (“People First”) White Paper.

Ms Madonsela found that all public works ministers who occupied the office since 2009 had provided incorrect information on the legal authority for and the extent of the work done on Nkandla.

Her report also said Police Minister Nathi Mthetwa failed to apply his mind when declaring Nkandla a national key point, and his conduct constituted improper conduct and maladministration.

She added that former public works minister Geoff Doidge and Mr Mthethwa could have provided better leadership on the extent and cost of the project. Their failure in this regard also amounted to improper conduct and maladministration.

Mr Zuma is to “reprimand the ministers involved for the appalling manner in which the Nkandla project was handled and state funds were abused”.

Furthermore, security and other items were constructed and installed on state land adjacent to the land occupied by Mr Zuma. This led to another finding of maladministration and unlawful conduct in the construction of Nkandla, and violated the provisions and requirements of the KwaZulu-Natal Ingonyama Trust Act of 1994, which required a proper lease agreement.

Ms Madonsela could not make a finding on whether the renovations to Mr Zuma’s private residence was financed through a mortgage bond.

“I am not able to establish if costs relating to his private renovations were separated from those of the state in the light of using the same contractors around the same time and the evidence of one invoice that had conflated costs although with no proof of payment,” the report said.

The president has been given two weeks to respond to the report.

The release of the report, less than two months ahead of the May 7 national election, has the potential to dent the credibility of the African National Congress’s (ANC’s) presidential candidate, which has led the party to accuse Ms Madonsela of playing politics.

It will not be the first time Mr Zuma faces the electorate with a cloud hanging over him. Corruption charges against him were dropped two weeks before he contested the 2009 polls as the face of the ANC’s campaign, and the party received 65% of the vote.


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