Public Protector's Report on Nkandla security upgrades

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Meeting Summary

After adoption of the minutes of the previous meeting, the only matter arising was the legal opinion regarding the Committee’s ability to access the Cabinet Memorandum of 2003. The Parliamentary Legal Advisor indicated that Constitution empowers the Committee to subpoena anyone to come before it to give oral testimony or produce documents. His legal opinion was that the Committee has the competency to request the document, in terms of section 56.

The next point was a debate on the precise nature of the consideration the Committee was to make of the reports before it. Dr P Mulder (FF+) raised the point and the view of the collective opposition that the constitutional origins of the report of the Public Protector gave it a superior status to that of the other reports and meant that the remedial actions it prescribed were unreviewable and therefore binding. The proposal was therefore that the Public Protector’s Report should be the starting point of the discussions of the Committee. The majority countered this view by indicating that the Committee mandate as per the National Assembly resolution was to consider all the reports and they disputed the superiority of the Public Protector Report. The majority Members maintained that as large-scale corruption had occurred, the Committee had a duty to consider all reports implicating people in these activities with the view to hold them accountable, rather than an over-emphasis on a single report. Their counter-proposal was that all the reports should be considered en masse, so that premature conclusions are not drawn which might be contradicted by consideration of later reports. The outcome of this segment of discussion, aside from an understanding that there would be no review of the findings of any of the reports, was that all reports would be considered at once, with the Members free to begin with their choice of report and make reference to others unheeded.

The final point of the agenda was the consideration of the reports. The discussion began with the Mr F Beukman (ANC) detailing the commonalities between the reports. However, the collective opposition preferred to focus on the specifics of the Public Protector Report, particularly as it related to the extent of knowledge, with the implication of tacit consent, of the President and his resultant liability in relation to the non-security upgrades at Nkandla. The majority Members countered by reasserting that there were a variety of persons involved in the corruption and all should be brought to book. They relied on a ten-step decision tree for security upgrades to homes of members of the executive, derived from the Cabinet Memorandum of 2003 and quoted in the Special Investigating Unit Report, as the base document for which to apportion responsibility and determine the actors who had derogated from their duties in terms of the Public Finance Management Act and the National Treasury Guidelines. The collective opposition reasserted the need to heed the Constitution in determining the status of the various reports and argued that if no review was on the cards that the Committee ought to endorse the findings of the Public Protector.

Later in the discussion, two key points of difference arose between the majority and collective opposition. Firstly, regarding the propriety of summoning people before the Committee and secondly, whether the remedial action taken by the Public Protector is indeed binding or merely has the status of a recommendation. The majority Members put forward the view that it was unnecessary to call anybody, least of all the President, because the reports before the Committee were all that needed to be discussed, because the calling of people would amount to a re-investigation of the issues and result ultimately in a review of the findings in the reports. On the second point, they argued that because no court has pronounced on the matter and there is divergent academic opinion, the President is entitled to view the remedial actions as mere recommendations from an ombuds-like body and the Committee is to find its own recommendations arising from the reports to take to the National Assembly. The collective opposition, on the other hand, argued on the first point that it was essential that people be summoned to clarify their positions and particularly the President, because he has persistently not answered questions put to him by the investigating institutions, which were critical in assessing his role in the corruption. Secondly, the opposition argued, based on an interpretation of section 182 of the Constitution, that the phrasing of the powers of the Public Protector and the fact that they are enshrined in the Constitution makes the remedial actions mandatory in nature. It was resolved that the Committee would reconvene the following day to decide on the opposing proposals.
 

Meeting report



Adoption of the Agenda
The Chairperson placed the agenda before the Committee for consideration and adoption.

Dr P Mulder (FF+) spoke to point six of the agenda which read “Consideration of reports” and asked what exactly is meant by this which is repeated throughout the totality of the programme of the Committee.

The Chairperson replied that at the last meeting it was re-emphasised that all reports tabled before the Committee will be up for consideration, in that the Committee will have an opportunity to discuss them. The nature of the reports is such that they deal with the same matter and therefore it will be difficult to separate them. Members will be allowed to open deliberations on any report they wish.

Dr Mulder understood this, but his concern was given the time constraints operating on the Committee, he did not want the Committee to conclude having only “considered” reports. He hoped that the next two sittings would lead to something over mere consideration.

The Chairperson replied that he could move a proposal to this effect at the appropriate time.

Ms M Kubayi (ANC) moved for adoption of the agenda and Ms B Ngcobo seconded.

Adoption of the Minutes
The Chairperson placed the Minutes page by page before the Committee asking for corrections to be pointed out. These were adopted with technical amendments.

The Chairperson then asked if there are any matters arising from the minutes.

Mr N Singh (IFP) spoke to page four, item 5.4 of the minutes and asked for the opinion from Adv Nthutuzelo Vanara, Senior Parliamentary Legal Advisor, on the classification of the Cabinet Memorandum as requested at the last meeting.

The Chairperson replied that Adv Vanara was on his way to the meeting and asked to deal with other matters awaiting his arrival.

Mr M Maimane (DA) took issue with the phrasing of the request as stated in the minutes, saying that the opinion was on “whether the minutes were classified”, rather than “whether the Committee could access it as it is classified”.

The Chairperson replied that Cabinet memoranda are by nature classified and confidential. A request had been made for such a memorandum and Adv Vanara was to provide his opinion on its availability.

Mr Shivambu spoke to page five of the minutes and said the principal issue is that authors of all the reports, not only the Public Protector, should be called to present to the Committee. The approach was then taken for the Committee to consider the reports on its own and then if it is deemed necessary these people would be called.

The Chairperson said that it was reflected in the minutes that all the reports would be considered first and there is a paragraph in the minutes indicating exactly what Mr Shivambu raised.

Mr Maimane questioned whether it had been reflected that a Member had raised the point that legal advice was required on the nature of the Public Protector’s powers.

The Chairperson replied that he did not recall this, but that it would not be harmful to raise this as the Committee proceeds.

Mr Singh said that he had raised that point, although there was no discussion, but he had requested independent constitutional law experts to be allowed to present their opinions to the Committee on the role of the Public Protector and what is envisaged by the Constitution.

Deliberations on Nature of “Consideration”
The Chairperson said that Dr Mulder had asked what would be the content of the “consideration” and what would happen at the end of the process. He had indicated that the reports all spoke to the same subject matter and the Members are free to refer to any report they pleased.

Mr Shivambu (EFF) said that the Chairperson is leading the Committee into confusion. He suggested the reports be gone through sequentially, rather than all of them at the same time. Then resolutions can be taken on each report and if further information is required the authors of those reports can be called. Otherwise the issues will be confused and the Committee will have no direction.

The Chairperson said he would have expected this to be raised when Dr Mulder asked his question and that this is the view of a single member.

Ms Dlakude (ANC) said that the ANC has all the reports before it, has read them and drawn its comparisons and conclusions on their respective recommendations. What “horrified” the ANC was that there were many policy flaws during the security upgrade process and people looted the state. The Public Finance Management Act (PFMA) was flouted and the ANC’s view is that all those involved in the corruption, including those meant to oversee the process, must be brought to book. She said, “We are not targeting individuals, but saying that all who flawed the processes must be brought to book”.

Mr J Malema (EFF) said that the Chairperson will create problems if he continues to refer to Members by their political party, they are all Members of the Committee and ought to be recognised as such when making contributions. He repeated the suggestion that the Committee goes through the reports sequentially, because nothing will be achieved by taking them all at once. Further, the Public Protector Report does not contain mere recommendations, these are remedies and it would therefore be dangerous to try and equate the reports. These should always be referred to as such and in order for the Committee to not lose track of what is required, it should take each report on its own. He stated that the Public Protector’s Report does not share the same status as the other reports, it supersedes the others.

Mr Maimane supported this view and said he had raised the point in the last meeting, because the Committee should not be reduced to a “read shop”. Noting the task of the Committee is not to investigate or review any of the reports, the sequencing of the reports is key. Agreeing with Ms Kubayi, he said the reports have been read, but that there will be key questions in each report which leads to the next question: can the respective authors come and clarify points to the Committee. Therefore, the starting point ought to be deciding on the sequence in which reports are considered and then the authors called to clarify. Then having considered the full package, the Committee can take time to decide what resolutions it wants to take to the House on each report.

Mr Singh agreed and said that all the reports have conclusions derived from different mandates; coming from proclamations, proclamations backed by legislation or constitutional injunctions. Thus there is a hierarchy of reports and therefore there is a difference in the status of the recommendations of the reports. It is clear from the first page of the President’s response to the Public Protector that there is a difference in opinion on the status of the reports. These differences need to be dealt with and they need to be placed in a hierarchy.

Dr Motshekga said that the starting point should be the Constitution itself, because the mandate of the Public Protector as captured there is to investigate impropriety and prejudice in the administration of state affairs and take remedial action. However, if you look at the mandate of the Special Investigating Unit (SIU) there are different issues and this is the same for the authors of the other reports. At the heart of all the reports is that impropriety, prejudice and maladministration must be investigated. The danger of going through the reports sequentially is that having considered a particular report and come to a conclusion on a particular issue, without considering what other reports find on the same matter, contradictions may be introduced. The approach must therefore be comparative, rather than compartmentalised otherwise a position taken on a particular issue may be contradicted by information from another report.

Mr Swart agreed with Mr Singh that the reports were hierarchical. He argued that the Public Protector Report should be the starting point, because it is an independent, constitutionally mandated report by a Chapter Nine Institution, while the others are all executive reports. This will lead the Committee needing to decide the extent of the Public Protector’s powers. His view was that the Public Protector Report will stand until reviewed by a court of law, however the President clearly takes a different opinion. Perhaps the opinion of a senior counsel will be required.

Ms Maseko said that all reports are important and all the reports need to be considered. All reports before the Committee therefore deserve equal deliberation and consideration. She felt it was not possible to look at a single report in isolation and draw a conclusion, because there is a need for cross-reference. It was agreed that people will not be summoned to the Committee until it has deliberated on all the reports and only at the point that will the Committee be in a position to decide which people to call if any.

Mr Selfe agrees with Dr Motshgka that the Constitution should be the foundation for the consideration of reports. Under a proper construction of section 182(1)(c) the Public Protector (PP) has the power to take appropriate remedial action and she has done so in chapter 11 of the Public Protector Report. Therefore, the starting place would be an examination of the Public Protector Report and the extent to which the remedial action has or has not been implemented, as this is at the core of the PP’s powers. To the extent that the other reports deal with the same issues they are “add-ons” and provided useful detail, however caution needs to be taken to not conflate the reports. He agreed that all reports should be dealt with, seriatim, starting with the Public Protector Report. The present court case, DA v Motsoeneng and the SABC Board, in the Western Cape High Court is dealing with the interpretation of section 182, specifically the enforceability of the Public Protector’s remedial action. He recommended awaiting the outcome of this case, rather than seeking a legal opinion. In his opinion the remedial action was not up for debate and therefore the only question before the Committee was to what extent the actions have been implemented.

Mr Malema said that the Committee should be honest with itself. The Public Protector Report is the reason for its existence, not the Special Investigating Unit Report or the Inter-Ministerial Task Team Report. The Public Protector Report asks Parliament to consider it. Therefore the reports do not enjoy the same status; the report instructed the President to respond in Parliament and the Committee was set up pursuant to that. But the Committee should follow the sequence and if anyone wishes to raise a point from another report that would not be out of order. To say that the reports share the same status is simply not correct, because the powers of the Public Protector are defined in the Constitution.

Dr Mulder agreed that the Constitution should be the point of departure. He felt there were other sections which ought to guide the Committee, including section 55 which clearly states the role of Parliament regarding oversight and holding the executive to account. Therefore the Committee’s scope and mandate goes beyond merely looking at the remedial action proposed by one report or the other. Beginning with whichever report is a non-issue, because the outcome is the same and that is that the whole Nkandla saga is a sad story. He had not seen any report which had stated that the occurrences had been a good thing, on the contrary they all share the same sad story. The Members may begin with whatever report they wish, he felt it was sensible to begin with the Public Protector Report and, as Mr Malema had indicated, Members should be free to bring an issue from any report they wish.

Ms Kubayi said that there is an attempt to reduce the value of other institutions such as the SIU and this is dangerous for Members to do. The Committee’s duty is to not only look at the remedial action, but what happened so that it can create mechanisms firstly to recover the costs and secondly to ensure that the misuse of state funds does not happen in this way again. She was concerned about the undertone that reports from institutions other than the PP are going to be disregarded. The PP reports and accounts to Parliament, and the Committee should guard against over emphasising its importance. Regardless of the PP’s investigation, Parliament would have had a duty to investigate based on the Constitution and this would have come to light because of the Auditor General. The Committee did not derive it mandate from the Public Protector Report.

Mr Gardee reiterated that the Public Protector Report was the impetus for the establishment of the Committee. The PP had the mandate to investigate based on the Executive Members Ethics Act and Public Protector Act and prescribed the tabling of the report in Parliament. The House took a resolution to establish this Committee accordingly. It would be “unconstitutional” for Members to pursue issues which did not relate to the constitutionally mandated report of the PP. There was no other report which placed pressure upon the House to establish the Committee. If the Committee is to consider reports other than the PP’s it would be acting “unconstitutionally”. The Chairperson ought to give a ruling, as it seems Members from the ANC wish to pursue this path.

Mr Maimane replying to Ms Kubayi, saying that it is not an undertone, it is a constitutional imperative to suggest that the PP is the point of departure for this issue. He took issue that the very person implicated, commissioned the SIU to investigate the matter. Can the Committee then indicate that it wishes to ignore an independent report, for one which is produced by the executive itself? The sequence of events is important, because it began with a complaint to the PP and subsequent communication, proclamations and letters serve as an output of the initial report. The PP had indicated steps for remedial action and these have not been complied with, including having the President report to Parliament for which he assumed this was the forum. All the reports are important, however the Committee cannot base its actions on a report produced by the executive itself, which allows the potential for influence to corrupt the findings of the report. It is accepted that the Constitution is supreme, therefore the constitutionally mandated report ought to be looked at first. The reports should not be conflated, as had been suggested by Ms Kubayi at the previous sitting. This cannot be done as the mandates behind the reports were different and therefore different answers will be provided. He suggested that a decision be taken, because this could be deliberated on all day.

Mr Shivambu said that there was unanimity that the Public Protector Report will not be reviewed. There was an undertone that because the PP reports to Parliament, there will be space to alter the remedial actions. This is not so and they could only be reviewed by a court and not through this process. There are concrete issues which the Committee needs to deal with on recommendations as to what the President should do to remedy the Nkandla matter. This is what the Committee should be dealing with and the Committee does not have the power to change the remedial actions stipulated. To conflate the Public Protector Report with other reports is just going to delay the implementation of the remedial action and taking away from the true purpose which is to have the President report to Parliament about paying back the money.

Dr Motshekga said that he did not think the issue is which report must be dealt with first. Rather the true issue is what are the substantive issues to be addressed. Regardless of placing the Public Protector Report first, the other reports deal with the same substantive issue. Perhaps it would be better to take it issue-by-issue, rather than report-by-report. Members should avoid attaching a narrow interpretation to remedial action, because these must deal with the situation as a whole. This should be interpreted as including criminal and civil actions and disciplinary action; not merely what is said about the President in the Public Protector Report.

The Chairperson said that the Members are beginning to deal with substantive issues. As Dr Mulder had said Members are free to raise whatever reports they wish and it seems that the Public Protector’s Report is being spoken to first. The risk of isolating a report is that other reports may point to contrary conclusions.

Mr A Shaik Emam (NFP) said that there was much deliberation about all reports being tabled and considered. That having been decided, he was surprised that one report is being singled out. He agreed that the challenges need to be identified across all reports and the full number of guilty persons must be identified and held to account.

Mr Swart said there had been no suggestion that any reports would be ignored. He asked the majority party whether they concede the Public Protector Report enjoys a higher constitutional status than the other and this is the reason why it is logical to begin with this report. There is limited time and the executive arms, such as the SIU, will account to the portfolio committee. Therefore, there is another avenue for these recommendations to be dealt with. Furthermore, the Fourth Parliament had resolved to look particularly at the Public Protector Report and a resolution was passed passing that on to the Fifth Parliament. What is the modus operandi if all reports are considered, because there are hundreds of issues that could be raised? Therefore, it makes sense to begin with the recommendations of the Public Protector Report and work through those together with the President’s response, then, where appropriate, bring in the other reports. Otherwise the Committee will have no direction.

Ms Ngxobo said the PP is a Chapter Nine Institution and it reports to Parliament on its remedies. It then becomes the responsibility of Parliament to determine how far those remedies can be implemented. All the reports speak of remedial action to be taken and this is not for the incumbent President per se, rather it is for the Office of the President.

Mr Gardee said that the Chairperson is “running down the meeting”.

The Chairperson interrupted saying that as Mr Gardee had arrived late and had not heard Dr Mulder question what form the consideration would take and the Mr Shivambu had again raised the point, so Mr Gardee’s comments were inappropriate.

Mr Gardee said that the Chairperson ought to itemise the reports, because the Members are ready to consider them. The EFF had moved for the Public Protector Report to be considered first, but apparently the ANC’s “Stalingrad defence” was being applied to this suggestion. It will be difficult to simply consider all the reports.

Ms Dlakude said that the ANC’s view is there is no report that is superior to any other; all reports were consequent to investigations into Nkandla and therefore need to be considered. She said, “No report has a binding effect”. What she had read is that the PP may report on her investigations and suggest remedial actions, which does not mean that this is binding. The ANC is saying that it wants all who are involved with the corruption to be exposed and is not “obsessed with” any one person; everyone must be brought to book. The reports share commonalities, she suggested comparing those to move forward.

Mr Malema said that the PP is a Chapter Nine Institution and by virtue of that, it is not the same as a ministerial task team or the SIU; it derives its mandate directly from the Constitution and its protection is the direct protection of the Constitution. He said, “I never thought I would sit in a meeting one day where the ANC questions the powers of the PP”. He was not here to review the reports, but pursue the implementation of the remedial action. He withdrew his earlier proposal of starting with the Public Protector Report and said the reports should start being considered.

Ms G Breytenbach (DA) took issue with the point made by the ANC, that all reports are equal; because this is not so. It is clear from the Constitution and the Public Protector Act that that office is elevated.

Dr Mulder disagreed with Ms Ngxobo’s comment that the remedial action refers to the Office of the President, rather than the President himself. He referred her to page 68 of the Public Protector Report, which states that the “President is to”, not the Office of the President.

The Chairperson said that the issue has been exhausted. He then referred to Adv Vanara on the matter of whether the Cabinet Memorandum is available to the Committee.

Legal Opinion on Availability of Cabinet Memoranda
Adv Nthutuzelo Vanara, Senior Parliamentary Legal Advisor, said he had looked at section 42(2) and this gives the National Assembly and its Committees the competency to conduct oversight over the executive. This is to ensure transparency, accountability and responsiveness in the exercise of executive power. Section 55(b) obliges the National Assembly to establish mechanisms for the conducting of such oversight. The Committee has been set up to consider the President’s response to reports on the security upgrades to his private residence at Nkandla. It was his view that the Committee is conducting oversight over the executive. Section 56 empowers the Committee to subpoena anyone to come before it to give oral testimony or produce documents. This has usually been used as a last resort, with the preference being to request appearances. Section 14 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act provides the process for summonsing such people. In his view the Committee has the competency to request the document, in terms of section 56.

Mr Singh proposed that the Committee start the process to receive the Cabinet Memorandum document.

Mr Selfe supported the suggestion. In addition a perusal of the reports shows a number of other documents which would help the discussion. First, paragraph 128 of the Special Investigating Unit (SIU) Report refers to a three-page letter which was a reply to the SIU Report and addressed to the Head of the SIU. Second, a great deal hangs on the Cabinet Policy passed on 20 August 2003 and is referred to in several reports. It is difficult to know who would be responsible for the overspending without having that document. Lastly, on page 354 of the Public Protector Report, reference is made to a Ministerial Handbook approved by Cabinet on 7 February 2007, specifically Annexure E deals with the policy on security at the residences of public office bearers. He suggested that these documents are the baseline for the actions which became the subject of the investigations producing the reports.

The Chairperson said that this was a new request and is something that would have to be pursued.

Dr Motshekga said that the legal opinion said that the Committee is entitled to request this, therefore there will be no harm in starting the process. He was concerned that the Committee is looking into the footnotes before it has even considered the reports. Requesting additional information is in order, but the Committee should let the need arise from the discussion.

Consideration of the Reports
Mr F Beukman (ANC) said that he wished to deal with commonalities between the reports. Comparing the reports has to be done with the understanding that they cannot come to the same conclusions, because the structures which carried out the investigations were constituted with divergent objectives in mind. These divergent objectives are described in the legislation establishing the various agencies. Further these divergent objectives dictate the methodology used and possibly affect the outcome of the various investigations. The following key matters of commonality should be of concern: South African National Defence Force, South African Police Service (SAPS) and Department of Public Works (DPW) staff did not follow statutory and legal processes for securing the President’s home. The records show that on 9 May 2009 the DPW Durban Regional Office Manager, along with the DPW professional team visited the site for an in loco inspection. The professional team consisted of a senior DPW architect, quantity surveyor and structural engineers. Based on the assessment, the Durban Regional Office Manager sent an internal memo stating the cost of security measures as R27.5 million. The appointment of Makhanya Architects and RG Consultants and Quantity Surveyors at an initial cost of R450 000 each on 8 September 2009, saw the start of DPW’s professional team being removed from the project. The SIU and Public Protector Reports are ad idem that this was contrary to the supply chain management policy of the DPW standards and regulatory framework of National Treasury. There is a slight difference in emphasis with the Public Protector Report not speaking to the DPW’s roster administration system which it uses to procure consultants and contractors and instead focuses on the National Treasury regulatory framework. The SIU Report deals with the roster administration system, DPW’s supply chain management policy and the Treasury framework. Both reports agree that for most of the projects, the regulatory framework was not complied with and this resulted in Makhanya Architects and RG Consultants doing the design and costing of the project as if they were DPW’s professional team. They also agree that Makhanya was appointed as the principal agent of the project and in this capacity, he acted on behalf of the DPW, and in designing and procuring for the project was to make prudent use of project funds. The process of handing over cost control to private firms came about as a result of a request by the DPW project manager to appoint Makhanya, to ensure complete integration between the private and state projects. Makhanya Architects and RG Consultants were also appointed as the selected structural engineer. It is agreed that this appointment was at the heart of the cost escalations of the project, with a major problem being non-compliance with regulatory provisions. Turning to the differences in mandate, he said that the SIU Report was as a result of Proclamation 59 of 2013 and this directed the SIU to investigate the validity of processes used to appoint consultants and contractors who installed the security upgrades. The SIU also has the power to pursue disciplinary action and litigation. The Public Protector identified the National Key Points Act (NKPA) as what provided the regulatory measures covering the project and it established that the Minister of Police must sign a declaration, declaring a national key point and detailing the costs thereof and asking the owner to pay these costs. The SIU differed from this viewpoint regarding the Cabinet Memorandum of 2003, as the regulatory document.

Mr Selfe said that the introduction was helpful, but at the heart of the investigation is ensuring those responsible for the maladministration, corruption and overspending are properly held to account. In their view it is a common scheme and there is an elephant in the room which is “the extent of knowledge and consent by the President of South Africa”. The PP found that the President was briefed by SAPS members and the Department of Defence on the security measures to be installed at his house. Further, he has not denied that he was informed from time to time by Mr Makhanya and Deputy-minister H Bogopane-Zulu on certain aspects of the project. The President was provided with a detailed progress report on 5 November 2013 by former Minister of Public Works, Gwen Mahlangu-Nkabinde. There are a number of unanswered questions. Firstly, why was Nkandla declared a national key point, particularly seeing as none of the provisions of the NKPA were followed. The only reason he could see for its invocation was section 10 making it a criminal offence to disclose anything regarding the security installations. He also questioned the “extraordinary” actions of the two ministers and deputy minister who did everything possible to make the President happy, including a minister of state personally going to a factory to ensure bullet resistant glass is to the President’s satisfaction. He continued with an instructive quote from Mr Rundle on page 155 of the SIU Report who said “during the project normal lines of giving orders/reporting and processes were side-lined for ‘security’ reasons”. He alleged that “instructions came from Minister Doidge, Mr Samuel and SAPS General Khulu; and that he had been threatened by Minister Doidge and Director General Dongwana. He quoted Mr Rundle saying “When the ministers and everybody got involved… they are my bosses, I listened to them… even lines of communication, even processes were practically side-lined and this is the instruction we got”. Mr Selfe argued that the strange reticence by the President to reply to the reports of the PP and SIU, goes to the fact that the President was aware of the cost and did nothing to stop it, thereby failing the country in his duties as head of state.

Dr Mulder said that it is common cause that the President was conducting private renovations to his home and that when he became President in 2009 that it was necessary to look into the security situation and certain upgrades were proposed. What concerned him was that the original estimate was for R27 million. In November 2009, there were media reports that it had escalated to R65 million. The Presidency then issued a statement that denied that any state funds were used and this is where the issue of a mortgage bond came up. The question then becomes what steps were taken after the cost increases became public knowledge? In hindsight we know nothing was done and this lead to the cost escalating to R245 million. It is also common cause that Mr Makhanya was the private architect of the President and at a later stage he became the principal agent. All the documentation indicates that what Mr Makhanya wanted, happened. Further that he was the ‘go between’ between the project and the President. He was concerned to know how Mr Makhanya came into the position of principal agent for the security upgrades, when he was the private architect of the President. On Page 31 of the Public Protector Report, according to the President’s written statement, he was present when Mr Makhanya was introduced to the DPW professional team at his residence at Nkandla, prior to his being appointed principal agent. Mr Selfe had indicated the elephant in the room and both the SIU and PP had interacted with the President. The PP put 29 questions to the President beginning on page 279 of the Public Protector Report and the President ignored the majority of the questions as though they did not exist. Similarly the SIU asked 15 questions to the President and an equally deficient response was given. His point was that things “do not just happen” and there is a sequence of events, one thing leading to another. First we have the President conducting his own private renovations; he introduced his private architect to the DPW. The then Minister of Public Works, Mr G Doidge, took responsibility for the integration of the two processes. And then the project begins and even though only 15% of the private work by the two companies is completed they become the key role-players. Later the President insisted that no other contractors should be used in the project. Mr Rundle on page 181 of the Public Protector Report in arguing for an additional R123 million said, “note that the failure to assist me with the financial side of this project will result in us failing the Principal, which will not be accepted lightly by the powers that be”. A vital question asked by the PP to the President, which was never answered was whether the President knew how much money was being spent in this process. As fingers are being pointed towards the architect, Dr Mulder felt it was important to speak to the architect, so that it can be determined whether he went off on a tangent of his own to decide the more luxurious, the better or were these things consulted on with the President. Neither the PP nor the SIU has been able to get these answers from the President and Parliament would be failing in its duty if it did not manage to do so.

Mr Shivambu spoke to recommendations of the SIU and PP Reports. He was glad that the Public Protector Report was not under threat of review and on page 442 it indicates what the President ought to do, specifically that he was to take steps, along with the SAPS and National Treasury, to determine the reasonable cost of the upgrades by DPW to his private residence that do not relate to security. This would obviously include the visitor’s centre, amphitheatre, cattle kraal, swimming pool and chicken run. Further, that he must pay a reasonable percentage of the costs as determined with the assistance of National Treasury. The SIU Report helps on page 215 to clarify which upgrades were not related to security including tunnels with an exit and three lifts at R21.18 million, SAPS and SANDF residential houses and laundry facilities R11.963 million, visitors lounge R3.927 million, basement parking R4.971 million, VIP parking and fire pool R3.964m, relocation of households R10 622m, roads R4.554m, air-conditioning in private residences R4.049 million, landscaping to high security area R3.371m. In total the amount spent on non-security related upgrades was roughly R65 million. Therefore, there is a sense of how much the President should pay, with the SIU having done a forensic investigation. Further, there are areas of over-design and over allocation of funds according to DPW documents and the SIU Report indicates the several items where overpayments were made. The total amount of the overpayment is R155.324 million. This is what should eventually be paid back and he felt a reasonable percentage would lie at around 90% as these were public funds. The Committee should receive a report, as per the last recommendation of the PP, indicating when the President is going to pay back the money. The SIU Report is thus useful, because it deals with the non-security upgrades and overpayments to the architect “appointed by the President”.

Ms Kubayi observed that in the process of this project, senior government officials have derogated from their responsibility, including executive members. Whether deliberate or not deliberate, systems have failed and there is the potential that these were collapsed for their own benefit. On the legislative mandate, it is clear that there is a broad legislative mandate including the Constitution, but importantly the PFMA which details the process for procurement. Looking at all the reports before the Committee, there is consensus that the supply chain management processes were ignored, the PFMA was ignored and the Constitution was ignored, as indicated by Mr Beukman. Moving to specific issues, she felt it was problematic that DPW staff simply left a project up to a private professional team. What comes from the report is that the Acting Director General simply decided on a thing, with no records of decisions. On the actions of Mr Makhanya, she said that this was problematic, but it should be noted that “there is not anywhere where the President is implicated” and during the court process the truth should come out. Referring to pages 248-251 of the Public Protector Report, the figures apportioned to private upgrades is R10 million, while the SIU gives another figure and these are the correlations that need to be looked at.

She emphasised that the DPW did not have a mandate, legislative- or policy-wise, to conduct a security assessment, rather the security cluster has this mandate. This is why they did not take into account the needs of SAPS or SANDF, which are to provide the security. It is important to look at what was necessary and what was expanded on. The SANDF had proposed certain basic requirements such as sewage works and a clinic, in order for it to carry out its duties as stipulated in the South African National Defence Force Act, but considering the area to be covered this has been inflated. It cannot be ignored that there are issues of collusion and government has become a victim of this, which was seen with the 2010 World Cup stadiums. This seemed to be a problem in South Africa, where service providers if providing such service to government feel they have a licence to inflate costs dramatically. Referring to the SIU Report recommendations, on page 33, she agreed that all officials implicated must have action taken against them. She felt it important to ask what is the process to be followed, who is the accounting officer and who has the authority to oversee the project. She agreed that the President introduced Mr Makhanya to DPW to ensure synchronisation, but nowhere in the report does it say that the President instructed DPW to appoint Mr Makhanya. The DPW could have still have continued with its team and liaised with Mr Makhanya. The PFMA is very clear that if you receive a mandate which is outside the law, you are to request it in writing, so that the administrator has proof that something outside the law was requested and insisted upon. The Minister of Police is supposed to be the instigator of the project and the Minister of Public Works is supposed to approve costs and if there are overruns they need to be reflected in the budget. This was why she referred to the derogation of duties, because the National Treasury guidelines were flouted. Parliament has a duty to make recommendations that are going to assist in the prevention of misappropriation of state funds in this manner in the future. Her opinion was that before you can reach the “CEO of the country” there are people who must account, including the administrators, members of the executive and the project manager.

Mr Malema said that the Public Protector indicates that the Committee should subject the determination of the correct amount to the consultations between the President, National Treasury and Minister of Police, therefore it is unhelpful to refer to the variety of figures between the various reports. He was glad that Ms Kubayi had conceded that some money should be paid. He felt that the Committee should agree that money should be paid by the President, because he benefited wrongly and the process towards determining the appropriate amount should begin with immediate effect. He agreed that the list if people to be prosecuted should begin to be pursued, but the President cannot be left out of this; “the President must be arrested in connection with the Nkandla corruption”. This is because the President went to impose an architect on DPW. What is the purpose of such an introduction, why should such a powerful politician, with a busy schedule take time out to introduce an individual to officials of DWP. Mr Malema said “[the President] went there to impose the architect”. We can only get the truth if the President is prosecuted and people come forward with information, some even making plea bargains and revealing the truth. It is incorrect to say that the President did not know, the President did know, was involved and received regular briefings on the occurrences. To borrow from Ms Kubayi’s CEO analogy, the project starts at R27 million, then goes to R65 million, eventually reaching R216 million. When the Mail and Guardian exposed this, ordinarily the junior administrators would become afraid. This did not happen in this instance, why, because they had the protection of the “CEO” and his approval. These people could only continuously increase amounts, regardless of exposure, because they know they had the ultimate protection.

Mr Malema said “let’s put President Zuma to test through a court of law and this will be proved; that he was involved, he gave instructions and even promised protection”. Assuming President Zuma was not briefed and knew nothing about it, how could this persist after the papers began to write about the corruption at his own home. Even if you know nothing about this company called South Africa, at least you know about your house, at least your homestead. People are stealing public money using your name and your house and when this is exposed by the newspapers, you still don’t know? The President knew and this is why he suggested that if they are prosecuted, Mr Makhanya’s bank accounts will have to be investigated. All the financial statements should be assessed during the prosecution and all large sums withdrawn from Mr Makhanya’s account must be accounted for as to where these funds went. There was money laundering here, money gets into Makhanya’s account and is channelled to President Zuma”. There is a suspicion that large amounts were paid to Mr Makhanya and these were then challenged to President Zuma and this will only be exposed if they are prosecuted. On the role of the ministers, politicians ought to be concerned with protecting junior administrators, because there is no way that such people can outclass the Ministers of Intelligence, Defence, Public Works and Police and the President. How is it possible that the junior administrators who have been labelled for disciplinary action and prosecution, undermine the five above mentioned people and hide the steady increase of amounts spent on the Nkandla project. Members had raised the derogation of duties on the part of officials, but importantly there was derogation of duty on the part of the President as highlighted by the Public Protector. What happens when the President derogates from his duties? Perhaps the ANC should answer that question. Clearly, the President is supposed to protect the resources of the country and he failed to do this and no junior can be used to prevent the President accounting for this failure. The country loses R216 million and the ANC speaks to the architect and juniors, while nothing is said about the President. How can they be serious about the integrity of South Africa, accountability or transparency, when it reduces the focus to junior administrators? The President must take on accountability; he willingly participated in the corruption and as a result he must be charged. The President has acted on the Public Protector’s powers before, why would the President want to come now to lecture the Committee on the powers of the Public Protector. He cited the example of Beki Cele who was now “deputy minister of nothing” because of the remedies produced by the Public Protector and there are many other people who have lost their positions because of such remedies. Part of the remedial action is for the President to reprimand the ministers involved, but he is unlikely to do so as they may turn around and say they were acting on his instructions. Why now is there so much exchange between the Presidency and the Office of the Public Protector and questioning of the Public Protector’s powers now? Surely because today the Public Protector points to the President. He warned that the country is being reduced to “personal rule”, where laws are applied to suit an individual. It cannot be allowed that institutions of the state are reduced to nothing in defence of an individual. The PP’s office and powers, enshrined in and protected by the Constitution are today being questioned. The remedial action proposed is not being implemented all in the name of an individual. If South Africa is not in a position to stand up to an individual and say they are wrong “we can kiss goodbye this constitutional democracy”. The PP does not state the President has lied to Parliament or that he must be removed, why cannot the President simply be asked to pay back a reasonable portion of what was unduly spent at his premises and the matter be closed? He added the President to the list of people who ought to be prosecuted and said that the truth will be exposed when these people are cross-examined by qualified lawyers, before a judge. Let the President go before the judge and clarify what role he played. “It is not just an individual who went to introduce and architect, it is… the person who occupies the highest office in South Africa who comes and says this is the man you must work with… you won’t even ask ‘on what?’. The message is very clear, this is the boss and this man has direct contact with the President…who are you to question this man when he has been introduced by a powerful political figure”. It would be wrong to come out of this process without the added recommendation that President Zuma be made to face the law and given a chance to clarify his involvement.

Mr Malema said he suspects racketeering and money laundering, specifically that the money was channelled to politicians especially President Zuma and his family. There is nothing [at Nkandla] which looks like R216 million. The architect was introduced to the President by Khulubuse Zuma, who does not have a very good image, the President then introduces this architect to DPW. This architect then takes over a state project and at the end it is said the President had nothing to do with anything. He is not a child and remains an independent thinker, although others may not be so. He can see that the President was involved in the looting of the money of the South African people.

Mr Singh asked whether he had heard Ms Kubayi correctly when she said it would be unnecessary for anyone to come and give testimony before the Committee. Mr Singh submitted that there was definitely a question of influence over the architect, officials and contractors involved. Where that influence comes from, one must determine. Referring to page six, paragraph 14 of the SIU Report it indicates that the appointment of the private firms coincides with the increases in the scope of the project and therefore also the cost. Further, the private professional team was allowed to operate without any direct supervision from DPW and played a large role in the choice of contractors which were to effect the upgrades, some of whom had been hired by the Zuma family to effect private improvements to their homes. The DPW made the appointments officially, but without adherence to their supply chain management policy. Thus the question is was this all done at the instance of lowly paid DPW officials. The extent of the President’s knowledge had been raised by Members.  Mr Singh was sure if all the officials were called to the Committee they would themselves be able to indicate whether they were influenced and, if so, by whom. Ms Kubayi spoke to figures and said that this ought to be quantified, but he would like to know how the SIU quantifies the figure of R155 million on page 7 and who are the experts who conducted this analysis. Perhaps these same people need to be involved in quantifying the potential liability of the President for private improvements which are unjustified enrichment. A moot point going forward is that the President has expressed the view that the PP is a mere ombud and the powers of the PP are contestable, with various legal opinions being given on the matter. Mr Singh contested, that whatever the decision taken on the powers of the PP, that the remedial action recommended was reasonable and fair. Therefore it cannot be seen why the President does not accept liability for part of the improvements done at his home. Further, there is an indication in the Joint Committee on Intelligence Report that 52% of the improvements were on state property and he would like to know how this determination was made, whether there are title deeds, particularly as the Ingonyama Trust Board has jurisdiction of that land. Lastly, there is no way the President can deny knowledge or liability of that which remains to be quantified by National Treasury.

Mr Beukman said that a major issue in the reports is the decision tree which lead to approval of the upgrades. In the SIU Report, ten steps were identified for approving such a project, as based on the Cabinet Memorandum of 2003. The steps are: first, a request from the President or Presidency. Second, a security assessment by SAPS and threat analysis by State Security Agency (SSA). Third, the formulation by SAPS and the SSA of proposal on security measures. Fourth, submission to the inter-departmental security coordinating committee for technical assessment. Fifth, submission to DPW for cost assessment on the proposal. Six, SAPS advises the Minister of Safety and Security of the measures and costs. Seven, the Minister approves this and communicates it to the Presidency. Eight, the President approves the measures with SAPS. Nine, SAPS submits the measures to DPW. And lastly, the Minister of Public Works approves the cost of the measures. The argument put forward is that this decision tree was not followed and the Committee must ensure that in future this decision tree is followed to the letter. It is important for Members to look at these ten steps before any assumptions are made and it is clear from page 240 of the SIU Report that only two of the ten steps were taken, the SAPS assessment and the cost assessment by DPW. He said that the President not requesting the upgrades is material. On page 239 of the SIU Report it is indicated that there is general ignorance of the roles meant to be played in the process, by various actors. Therefore, there was a spectacular failure of all relevant institutions to adhere to the decision tree. This leads to the need for recommendations to ensure that officials adhere to such procedures.

Mr Maimane said it was important to note the mandate of the SIU as dictated by the President vis-à-vis what the PP was tasked to investigate. According to the SIU Report, there was clear liability placed upon the President at the beginning of the project and as the process continued this began to be reduced, through the increase of the public debt. If the project were to have continued unheeded, the President would have benefited more from public funds, because there was a clear intention to this effect on the part of the management. If this information is contrasted with the Public Protector Report which states that before the NKPA was invoked, because the President was asked to be liable for the swimming pool, consistent with the NKPA. Further, in the SIU Report it is clear that the President knew of the projects taking place and at times even expressed frustration about the lack of progress. He wanted to put the suggestion to bed that the President was somehow ignorant of a massive project at his private residence. There was also a very clear intent to deviate from supply chain management norms and he agreed with Ms Kubayi in this respect. What remains to be questioned is the inspiration behind this, because people do not simply wake up with the intent to deviate from such prescripts. Reading from the SIU Report, regarding the President’s response, it said “the officials who reported on any views expressed by him, were senior government officials who ought to have been familiar with procurement and supply chain processes. If these officials laboured under the impression that the President was the origin of the undue pressure being brought to bear upon the discharge of their responsibilities, they were in a position to report such improper conduct to constitutional institutions set up to deal with such conduct”. The President’s response implies a system where junior officials in an organisation are to report their superiors. This is improbable, particularly considering the chain of command with the principal agent stating the requirements which even caused ministers of state to go and inspect the quality of glass, as referred to by Mr Selfe. Once such a culture like this sets into an organisation it is driven by authoritative support from the top, it cannot originate from the bottom. Therefore the statement which is the basis for the defence of the President, cannot be true. Also, it is clear that a number of institutions “were instructed to fail in the execution of their duties”. Therefore something which would be of interest for the Committee is to have testimony from the President, regardless of whether court processes are instituted.

Mr Maimane said that it is obscene for someone to argue that they arrived home to a project where costs were escalated and one simply did not know. Therefore, he felt it fair and necessary for the Committee to hold the executive to account, that the President be summoned to the Committee. This is especially as the President’s responses as put forward to the SIU, PP and Parliament itself are completely insufficient. What is at hand is a principal who appointed an architect, gave them a mandate and then commanded a chain of command. He wanted to understand the project from its origin, with the President having said that the private renovations were to continue into the state project. Therefore, it is important for the President to come to the Committee, so that he may help the Committee determine the extent of his knowledge, control and resultant liability, because the responses which were provided are wholly insufficient and this has been pointed out by the authors of the reports themselves. In the President’s response to Parliament and PP, he responds that the proper person to make the determination of his liability is the Minister of Police. However the Minister has an interest in the matter. Therefore, whatever his determination is, it should be subject to the scrutiny of Parliament, so that its veracity can be fairly tested, with input from the President. He warned of the problem of relying on second hand testimony only in making this determination and therefore put forward that the President be requested to come before the Committee so that this determination can be made.

Ms Maseko said she does not see the reason the President needs to be called, because all the information required is in the tabled reports. She questioned the basis for Mr Malema’s statement that the President imposed Mr Makhanya. Her understanding was that the President “as a family man” had already started renovations to his homestead in 2008 and hired Mr Makhanya as the architect and project manager. Subsequent to becoming President, he introduced Mr Makhanya to the DPW so that there may be synchronisation and avoid duplications. The President did not say that Mr Makhanya must be made the project manager. The DPW’s original estimate was R27 million, but page four of the SIU Report indicates that the DPW did follow ordinary processes and procedures in procuring services and consultants and therefore did not put in place sufficient measures to protect the public interest or purse. Further, page 244 of the SIU Report concludes that there are two final issues to report. Firstly, that during the inspection in loco the investigating team noted a number of matters of concern that have been effected for security reasons. Secondly, regarding what was produced under Mr Makhanya’s stewardship when measured against what was required by the security assessment, indicates a re-assessment by SAPS is required. Therefore, she agreed with Ms Kubayi that there are several people who inflated the prices, went beyond their scope and did not follow the PFMA, which they were required to do as accounting officers. She questioned how Mr Malema determined that 90% is a reasonable portion to repay, but the Public Protector Report says that this is to be determined by National Treasury and the Minister of Police, taking into account the DPW apportionment document. Therefore, conclusions should not be jumped to and perhaps the President knew, not necessarily how much and the accounting officer’s heads must roll.

Mr Swart, on the awareness of the President, agreed with Mr Malema that the newspaper reports which came out in 2009 would have made the President aware. Reading from page 239 of the Public Protector Report it is not unreasonable to expect that once the news broke in 2009 of the alleged exorbitant amounts of R65 million on security upgrades, that the dictates of sections 96 and 237 of the Constitution required President Zuma, once he became aware, to take reasonable steps to order an immediate inquiry into the situation and correct any malfeasance. Therefore, even if he did not know the extent, he was under an obligation to investigate and correct the situation. The PP made a finding in this regard to the effect that his failure to act constitutes a violation of the Executive Members Ethics Code and amounts to conduct inconsistent with the Constitution. There is also some disagreement on the nature of the PP and her findings, and he thought he had heard a member of the ANC say that the findings of the PP were not binding. However only a court of law can review these findings. Further, he was concerned that the President has instructed the Minister of Police to ascertain how much money must be paid. However this is an attempt to give the minister more power than he has and surely this would amount to a review of the PP’s findings? This would usurp the powers of the court and in fact be an illegal act. There needs to be a full debate on the hierarchy of the Public Protector Report, the powers of the PP and also the response of the President in saying that the PP is a mere ombud. This statement is in direct contradiction with what the Supreme Court of Appeal (SCA) has said in the case Mail and Guardian v the Public Protector, which has indicated that the PP is far wider than a mere ombud. Surely President Zuma is aware of this decision or is being incorrectly advised, but Mr Swart felt strongly about the issue.

Ms Dlakude wanted it to be known that the ANC agrees that there was corruption and looting of state funds and as taxpayers they want these people to be brought to book. Before the extent of liability can be discussed, it must be noted that the full cost of the project was approximately R240 million and the President is on record in the House saying that he and his family built their own houses. The security upgrades are a separate issue and this is where the corruption took place. She said that there is a tendency in South Africa towards collusion and looting by the private sector, as was seen during the building of the 2010 World Cup stadiums. The people who were supposed to oversee the project and who flouted the PFMA, must be held to account. Therefore, before the President can be said to pay, it must be determined whether what has been done at Nkandla is in fact worth what was paid or if people simply pocketed money to enrich themselves. The PP has indicated that there are further security measures to be installed at Nkandla and given the amount spent already, how much more is to be spent? On the question of whether the President must be made to pay or not, this remains to be seen. If it can be shown that the President requested private upgrades from the state, then his liability can be discussed. According to the reports, there are things including the cattle kraal which was valued at R1.2 million, and it must be asked “did they use silver and gold to build that kraal” and how did they arrive at this amount. Is what is on the ground actually worth what was outlined in the reports, because there were many consultants involved and it is known that funds were looted. According to the process noted by Mr Beukman, there was supposed to be a paper trail of requests and approvals. She then questioned the initial costing of R27 million and could not see how DPW had arrived at this figure. For the President to defer to the Minister of Police to assist in the determination of his liability is according to the remedial action by PP. The President cannot be expected to determine his own liability and therefore National Treasury and SAPS, which is the line department responsible for executive safety, are appropriately identified. However, before the President is called to pay back money, the Committee needs to check where things went wrong. She said, “I cannot be told by someone, if I am in a position of authority, do this. I would refuse… I cannot allow anyone to dent my image, because of something I believe and the law says it’s wrong”. South Africa as a constitutional democracy believes in the rule of law and everything must be done by the book. There is no way processes can be flouted and then knowing that the President is the owner of the property will be made to take responsibility. Presently, there are criminal and civil processes under way and if someone is still hiding they must be unearthed, so that they may be held liable. As taxpayers we all want to know where the money went.

Mr Selfe said no Members disputes that an environment was created which encouraged large-scale fraud corruption and looting in this project, with many people doing many wrong things and the reports indicated that there were major systems failures on almost every count. He supported Mr Maimane’s request that the President be summoned, because there are a number of unanswered questions. He referred to the Public Protector Report, pages 282 and 283, on both occasions the PP put very explicit questions to the President and the PP wrote that “the President’s reply is still awaited” and further “I never received a further response to the questions posed to him”. Therefore the Public Protector Report is lacking critical information, which the President has at his disposal. In the SIU Report, there were 15 very specific questions put to the President and he answered in generalities. The question has to be asked why did he do so and Mr Selfe said that this was because he did not want to tell the truth or give a full picture because there was something to hide. Page 278 of Public Protector Report contains a statement from the President “in the course of engagement with the security cluster I initially met with the then Minister Doidge, senior SAPS officials at my homestead in a consultative process regarding improved security due to my occupying the office of President of the Republic”, he goes on, “I thereafter facilitated a meeting between the same group of people and Makhanya Architects, the consultant who was already engaged with the building work at my home, so that there could be as little disruption with the work already commissioned”. Subsequent to this Mr Makhanya becomes the principal agent and then Money Mine Construction, which did the initial work at the President’s home becomes the Principal Contractor. As a tax paying South African, Mr Selfe clearly saw collusion and this was between the President and Makhanya, allowing Mr Makhanya to pay the bills and make the project more expensive than it ought to have been and this ought to be the focus of the Committee. The President went on to say, “from time to time I received briefings, both formally and informally, from the Ministers engaged with the security enhancements, although I was not intimately involved with the finer details”. He suggested that the President remained integrally involved, to the extent that he disapproved the bullet resistant glass, because it reminded the President of his period of incarceration. On the question of costs and responsibility for costs, it seems that it is generally accepted that the President is liable for some of these costs; what is questioned is the extent. In this regard the PP made a finding, where she states that, “the President benefited unduly from the upgrades to his private residence and has a duty to pay for them”. The question therefore is not whether he is liable to pay, but simply how much he has to pay and for what.

Dr Motshekga said it is unfortunate that Mr Beukman did not speak timeously, because there would not be unfounded recommendations being placed before the Committee. This is because the ten-point decision tree shows that the origin of the process and the roles played by officials, accounting officers and ministers need to be considered before the President’s liability decided upon. Consideration of these steps would indicate whether or not the President was aware. To state that the President must have been aware, the Committee is venturing into speculation. The mandate of the Committee is to consider the reports and come to conclusions based on the contents thereof, which is not true of the recommendations being suggested. The other misleading thing is to begin to say that “there is an elephant in the room” and the Committee’s duty is to look at all animals in the room and, after doing so, come to the conclusion that there is an elephant in the room. It would have been irresponsible of the President not to introduce the people already engaged in the work at his home to the government officials who were to begin work, because there was a need for synchronisation between the projects. This was therefore a natural responsibility he had to discharge. Anyone who says the President imposed Mr Makhanya is wrong, because there is no basis for this in the reports. The inference drawn from Mr Rundle asking for more money and other factors need to be supported by the conclusions reached by the investigations which produced the reports. Mr Rundle’s statements could be construed as ‘name-dropping’. How can this be used to support the conclusions suggested?

Dr Motshekga said the suggestion in the Public Protector Report of the manner in which to determine the liability of the President is also premature. Citing his own experience, when he became Premier of Gauteng, SAPS did the security assessment and effected the requisite changes and he was not consulted on the amount to be spent or other specifics. Therefore he would not be able to explain why any of the specifics were done. If this is the general approach of government, why should the President be expected to know. This was due to people working towards their pre-determined objectives. He raised his concern that the liability of the President is being spoken of as arising out of unlawful acts by officials and the project manager. To determine how much the President must pay, it must first be determined how much of the problem arises out of unlawful action – of which the ten-step decision tree is the guiding light. If it is taken step by step, the culpability of the various parties can be determined. Then if there are things that the President requested he would have done so at the planning stage and these things would have been budgeted for and reflected in the strategic planning. The responsibility of other implicated persons must also be established before the liability of the President can be determined, therefore it is premature to deal with this question. He warned the Committee that in the process of considering the reports it should not venture into speculation about what happened, because Members are giving opinions about what could have happened. These opinions are used to draw conclusions, including that the President must pay, and he felt this out of order.

On the inference drawn that there must have been influence at play, Dr Motshekga said that before this is said, the ten-step decision tree must be checked to see how the President interacted with the process, rather than focus on the initial introduction of a person. Also, the President did not dictate to DPW who to appoint, he merely introduced him for the purpose of synchronisation. To determine who is liable, especially the President, one must first look at the decision tree and determine as a matter of fact, not speculation, that he has influenced the position. As the opposition has not established any influence, he rejected with contempt any suggestion that the President or any one of his family introduced any influence into the process. He was surprised that the Members had not called for any accounting officers to be called, nor any ministers who would be responsible for executive oversight. It must also be kept in mind that if the President is said to have received briefings, these must have come from the various accounting officers or responsible ministers. Unless there is an ulterior motive, why do Members skip all the accounting officers and say there is an elephant in the room. On the PP being labelled an ombudsman, he said the reason the Constitution writers decided to use the phrase PP rather than ombudsman was a conscious choice for gender equality reasons, but this does not mean that the functions of this office would be different to that of an ombudsman. The SCA did not mean to say that the PP has more power than an ombudsman, aside from the ability to proactively investigate maladministration. The SCA could not have construed the powers of the PP to be that of an investigator, prosecutor, judge and sheriff. And there is no such power. To say that anyone who disagrees with the PP must go to court is to tell a ‘half-story’, because all Chapter Nine Institutions are tabled in Parliament. If a report comes before Parliament and deals with a matter of national interest, Parliament cannot just endorse the report. Furthermore, here the Committee is faced with multiple reports dealing with the same issues and there are conflicting recommendations. Should Parliament therefore be asked to endorse conflicting recommendations? The Committee’s responsibility is to consider all the reports and come to its own conclusion. On the proposal to summon the President to account, he did not know where this arises from, because if it must arise this must be after consideration of the ten-step decision tree for his interaction with the process. Therefore it is premature to suggest this. Replying to Mr Swart, he said that it would not be fair to say that the President has failed in anything, because once he sensed something amiss, he appointed the Inter-Ministerial Task Team and appointed the SIU of his own accord. He would not have made these appointments, unless he was a President who was committed to clean governance. Finally, it should be agreed that there is a chain of accountability. The President appoints ministers to conduct executive oversight and these ministers initiate projects and the ministers have accounting officers. Why should the chain of accountability be ignored and the President focused on, if the rest of the chain will need to be implicated first? The President is not responsible for exercising oversight over Directors General or projects. Therefore, the conclusion should be that the liability of the President for one sum or another cannot be discussed because there is a lot of unlawful activity which led to the inflation of prices and this may affect what is thought to be owed. The ten-point decision tree should be used to systematically guide the Committee and jumping from issue to issue is unhelpful.

Dr Mulder said that the Committee cannot follow the ten-step decision tree, because the President chose to “duck and dive”. Point one of the plan is that the President should have requested the upgrades to his house and the Committee does not know whether he did, because he failed to answer the question. Dr Motshekga said that the Committee is venturing into speculation and why is this? It is because the Committee does not know and this is because the President chose not to answer the questions. On the failure of the President, he said, “Absolutely, and why did he fail? Because he is not upholding the Constitution”. All organs of state, and surely the President above all, should assist the PP in carrying out its functions. However the PP had to plead to have the cooperation of the President and he delayed the process the longest of all. He delayed nine months in total and, even when he deigned to, he still chose to not answer many questions. Therefore the Committee must speculate, because the President chose not to inform or cooperate with structures of government. Is this Committee going to allow this to continue, with Members saying that there is no need for the President to appear or will it require the provision of the answers? Without these answers, the Committee is forced to speculate and this is not done by simply grasping things out of the air, but is rather a rational process. It has been asserted that there has been a spectacular failure on the part of government departments to comply with procedures and the question is why? Did these officials wake up one day and decide that this was their chance to disregard all processes and procedures and this in the most important project, the one at the President’s house? Is it the case that the officials “enjoyed themselves” disregarding all directives, processes and provisions of the various acts? Or should the Committee use its mind and deduce what occurred?
 

Dr Mulder continued that Dr Motshekga has said all the animals in the room must be looked at, however he could not see these animals because there was a big elephant standing in the middle of them. Dr Mulder agreed that there were many animals and these would be dealt with in time. The President is not the only person that should come before the Committee and it should start with Mr John Rundle from DPW who could tell the Committee what made him decide to ensure that under all circumstances Mr Makhanya should be put in charge of the project. The former Minister of Public Works, Mr Geoffrey Doidge, should also be called. Dr Motshekga says that the President introduced Mr Makhanya for synchronisation purposes, but how did it end up as total control by Mr Makhanya? He asked if there was a chance that the President became aware of this through his interactions with Mr Makhanya, in light of the escalating costs, but the Committee does not know and must speculate. Dr Motshekga also spoke to ‘name-dropping’, however this is not the first time that such things have been said. He pointed to what he termed ‘Gupta-gate’, where a name was dropped who claimed complete innocence. Perhaps the ‘dropped name’ should be asked to come and tell the Committee. This would not be unreasonable. In fact the Committee would be fulfilling its constitutional obligation. Against the suggestion that the President be made to repay, it was argued that he did not request the upgrades. However the Committee does not know because the President did not reply to this question and therefore it should find out. Nowhere in any of the reports did the President go on record saying that he did not want the upgrades and in fact the PP makes a finding to this effect. On page 437, paragraph 10.9.14 the PP writes, “It is my considered view that as the President tacitly accepted all measures at his residence and has unduly benefited from the enormous capital investment from the non-security installations at his private residence, that a reasonable part of the expenditure towards the installation that were not identified as security measures according to the list compiled by security experts in pursuit of the security evaluation, should be borne by him and his family”. This is not speculation, or an opinion, it is a finding by the PP, based on the President’s tacit acceptance. The President should have known about the problems, because there was a report in the press in 2009 indicating that the costs had increased from R27 million to R65 million. It can be argued that this was due to the initial estimate not taking into account the needs of SAPS and the SANDF, but the SIU Report states that “the sad result is that a project which could have cost some R60 million, ended up costing about R216 million”.

Dr Mulder said the President must have known about the problems, because he issued a statement saying that no state funds were used and that he had acquired a bond. Dr Mulder challenged the President to provide this bond and said the PP had requested the President to produce this bond. The President responded that he would make it available to a lawful institution, to which the PP responded that it was such an institution and would treat the document with circumspection, which the President has ignored up to today. Aside from Mr Doidge, he would like to hear from the former Deputy Minister of Public Works who tried to draw up a schedule indicating state expenditure and private expenditure, resulting in her being removed from the project “overnight”. Subsequent to this, as indicated by Mr Maimane, the President’s liability on the project took a steady decline.


Dr Mulder also suggested summoning Mr Makhanya, who is now being asked to repay R155 million. And despite the President interacting with him throughout the process, the President is said to have not known about anything and it would only be fair to have the President say this himself. Returning to the Deputy Minister, he said that she had indicated during the investigations of the PP that she had interacted with the President about this and discussed the possible apportionment of costs with the President and then the President requested a document in this regard. This document disappeared and was later recovered. The PP in question 14 asked the President to look at the document which had been delivered to the DPW and indicate whether it is familiar to him and if so what his response was. The PP continued in question 15 to ask if the document was not provided to him, was the apportionment of costs discussed with him and if so by whom? Both of these questions have not been answered to date. The vital question was number 16 where the PP asked whether the President had ever inquired into the matter and if so what was the response. This too is not answered. The President as head of state should be setting the example and where fire pools, helipads and bunkers are being installed at his residence, he should ask the question. The Committee should not go back to Parliament without having asked for the answers, unless it really does not care. He agreed that the President is not the only person that should come to account to Parliament and that all involved should do so. He asked if the deduction of involvement was unreasonable, when nowhere in the reports does it indicate that the President was concerned about the escalating costs, but what is stated is that there were repeated concerns about why the project was taking so long. Further, the President insisted that new contractors should not be used for phase two of the project. Dr Mulder would like to know why and would like to ask the President why.

Mr Gardee said that the provisions of section 64 of the PFMA need to be clarified in context, because the only official to ever be protected from an executive directive which has financial implications likely to result in fruitless or wasteful expenditure, is the accounting officer, not anyone else. The Act is clear that only an accounting officer can request an executive directive in writing and any other official will simply be treated as subordinate if they made such a request. He felt the ANC Members were “judiciously and religiously carrying out the instruction of defending President Zuma at all costs, they just don’t want him to appear in public to account for what happened at his house which he claims not to know". This would be an opportunity for Members on the other side to show South Africans that they do not receive instructions from Luthuli House, but process matters objectively... Not within 24 hours of receiving an instruction from Luthuli House, they mount a ‘Stalingrad defence’ on the issue that President Zuma must appear before the Committee”. He felt that there would also be resistance to an inspection in loco. What the Committee should discuss is the list of people who must appear, the date on which they are to appear and the questions they should prepare themselves to answer. Members are being hoodwinked into conducting the business of the Committee unconstitutionally, through questioning the remedial action of the PP in terms of section 182 of the Constitution. The Committee is being told that it should not support the findings of the PP that the President should do certain things. The question should be asked whether the President asked the Minister of Police and National Treasury to determine how much he should pay, not whether he should be made to pay, as this was his directive. He raised the issue of Schabir Shaik who he said “fell alone on his sword” and the same thing happened with Bruce Koalane regarding the ‘Guptagate' scandal. The President was not responsible regarding Schabir Shaik or for ‘Guptagate’ and now his name is being dropped again. He should therefore come before the Committee to explain what is wrong with him that every time his name is dropped? And he must answer this question before us. Further, the NKPA is very clear on how to determine how much is due by the President. It should not be questioned why the Committee should deal with the Public Protector Report, because the Public Protector Act, the Executive Members Ethics Act and the Constitution say so. The SIU is not even mentioned in the Constitution, being established by a subsidiary Act, yet the Committee is called to put aside the Public Protector Report, instead of dealing with the issues it raises. The President has a fiduciary responsibility and therefore ignorance cannot be an excuse where there is undue enrichment. He suggested the ten-point approach be reduced. Firstly, an itinerary of persons to be called and dates should be drawn up. Second, all other role-players identified. Lastly, other parallel processes should be supported. For the ANC to stand before the nation and say that President Zuma should not appear before the Committee and that he has no questions to answer, is to mock the process and the Committee. He looked forward to the ANC Members rising above partisan politics and think better of the taxpayers’ money which was wasted at Nkandla.

Mr Malema said that some of the utterances regarding the powers of the PP remind him of the process of destroying the Scorpions, “for no apparent reason”. The destruction of the Scorpions is regretted, as the most credible institution which fought corruption was destroyed, because it was said that this institution is a problem. This is exactly what is being done now and asked Members to be guided by their conscience to prevent every institution which fights corruption from being destroyed. Why should the Office of the Public Protector be torn apart like this. He said, “I am not going to do that and I can say equally if we are going to sit in a meeting that reviews the findings of PP, I will never do that”. The PP’s remedial actions are final and all that there is to do is to implement them. The powers are final because they are prescribed in the Constitution. How can Members allow the Constitution be destroyed like this? He had been involved with the destruction of an institution which had a problem with President Zuma – through the Scorpions – and this is exactly what is being done now. Every time President Zuma gets into trouble with an institution, that institution must be destroyed in defence of one individual. He suggested that the Members undertake a thorough introspection and decide if they want to be party to the destruction of institutions which protect this constitutional democracy. The PP is all that South Africa is left with, because the rest have been corrupted, including the National Prosecuting Authority and the Hawks. These institutions have no credibility, with politicians being able to instruct their actions, but the PP still enjoys a form of objectivity and independence. Yet it must be destroyed at the instance of an individual. He reminded the Committee that every time there is an institution of the state which questions the role of President Zuma, it must be destroyed in his defence. Why is the opposition questioned for not calling for the other people implicated such as accounting officers? He left this to the ANC Members, saying that he would like President Zuma to appear and if other Members wish to have the Acting Director General appear, it is for them to say so. What is in fact being done is to add President Zuma to the list of persons whose prosecution and accountability arise out of the ten-step decision tree as suggested by the ANC Members based on the reports. After 1994, he had never thought he would sit in a meeting of people who say they subscribe to democracy, but refuse for a member of the executive to come and account to a Committee. Why should it be a battle? A member of the executive, it is clearly defined by the Constitution, that they account here.

Mr Malema pointed out that there should not be a fight about calling President Zuma if he has nothing to hide and the Members know that there are a lot of unanswered questions asked by both the PP and SIU. Who else besides the Committee will be able to get the answers, where these credible institutions have failed? It is because he has not answered these questions. It cannot be argued that there is no need for him to be called as there is a report. The report is incomplete without these answers and this is why the President needs to be called to answer these questions. He asked for the argument of the President’s ignorance to be done away with, because reading pages 234 and 235 of the Public Protector Report, it is seen that the President admits that he was from time to time briefed. Therefore, the President knew what was happening at Nkandla. Responding to Dr Motshekga’s personal experience of security upgrades upon becoming Premier of Gauteng, Mr Malema said that the absence of his involvement can be accepted, because he did not introduce any architect into the process. There was no issue with Dr Motshekga’s house then and it therefore cannot be compared to the President’s situation. The PP also indicates clearly on page 439 that the President knew when the matters were publicised in 2009 and says, “[the President’s] failure to act in protection of state resources constitutes a violation of paragraph two of the Executive Members Ethics Code and accordingly amounts to conduct inconsistent with his office as a Member of Cabinet”. The President failed to discharge his responsibilities and the PP goes on to say, “in my considered view the President tacitly accepted implementation of these measures”. Why should the Committee then act as though the President is being wrongly accused and the PP does not have these powers? The President in his response does not even concede that the Minister of Police ought to be asked to determine who must pay. How can this issue still be dealt with when the PP has already dealt with it? On how he reached the figure of 90%, it is his considered view that this would be a reasonable amount. He was alive to the fact that the PP has enjoined the Minister of Police and National Treasury to determine how much should be paid and encouraged the Committee to agree to give these bodies the opportunity to do so. He would not agree to the approach based on the ten-step decision tree approach suggested by the ANC, because the SIU and Public Protector Reports have clearly outlined who should be responsible. He was not saying that President Zuma should be charged to the exclusion of all the other persons involved, rather he agreed that all implicated persons should be made to take responsibility. On top of all the others, President Zuma should be held to account. He firmly proposed that the ministers identified in the report, the architect and the President should be invited to the Committee and explain the occurrences. These people are not being called with the view to change the recommendations of the PP. He added that an in loco inspection will be important to determine, whether value for money was indeed obtained and the non-security upgrades as identified by the PP would be a good place to start. All the extraneous items will be charged to President Zuma, with additional amounts potentially deriving from the SIU Report and through the National Treasury and Minister of Police, in consultation with the President, must determine the amount to be paid. If President Zuma was not alerted by his government, he was by the media and he still failed to act. If he remains President even after accepting that he took money illegally, he will have an opportunity to go back to the ministers who misled him and deal with them as recommended in the Public Protector Report. He pleaded that mistakes of the past should not be repeated, which saw the institutions of the state destroyed for the sake of an individual.

Ms Kubayi replied to Mr Gardee saying he should not read the PFMA selectively, because it is clear that one cannot deviate from processes because one will have to account. Section 86 of the PFMA stipulates how funds should be used, besides this the Constitution stipulates what should happen and this provides protection to officials. She felt it dangerous for a Member to say that officials received no protection from the law. This was how the PP and SIU were able to identify where the law was broken by officials. Further, no one in government who is given decision-making power is junior and here directors general and project managers are implicated, who are senior government officials. Parliament needs to send the message to officials that they cannot hide behind the application of pressure and they will be taken to court to account. On the issue of Mr Makhanya’s accounts being investigated, she said that Mr Malema ought to know that when a person is prosecuted all their finances are investigated and “this is how they found [Mr Malema] are owing so much to SARS [sic]”. Therefore, as Mr Makhanya goes to court these matters will be dealt with and as the charges are public documents, Members ought to familiarise themselves with them. She emphasised that “we are not in the business of targeting an individual”, rather it is about the entire process and what has happened from the beginning needs to be discovered, so that it can be ensured that this does not happen again. She disagreed with the earlier suggestion that the SIU Report may as well go to a Portfolio Committee, because an institution which has been established by statute, giving it standing and legal powers and that is accountable to Parliament, is important to the Committee. This is why she cautioned against the undertone undervaluing the SIU Report. Even the PP refers certain matters to the SIU, therefore the Committee should not be selective. This body which is able to assist through referring matters to the NPA, which the PP cannot do.

Ms Kubayi said, on the issue of the knowledge of the President, that the ANC has never indicated that the President did not know about the project, how could the introductions have been made if he was unaware of it. The issue is that he did not know about the scope escalations and costs. On the President having his day in court, Members are empowered by the Constitution to pursue this, although the Committee has no powers in this regard. Another thing which the Committee needs to deal with is whether it is concerned with moral or legal obligations, citing the PP who makes use of the word conscionably. She is glad that Mr Malema had corrected his earlier statement and welcomed the pursuit of all persons implicated, because this shows consistency in treatment. Anyone who has broken the law must face the consequences and there are very specific areas where people have broken the law. Coming to the President, does the PP say that the President has broken the law? No, and colleagues will have to show her where it says so. This is why it is important that there is a collective understanding of the reports, with the PP conceding that it is based on a moral obligation that the President is said to have to pay, according to page 437.


On the issue of newspapers writing about corruption and alerting the President, Ms Kubayi reminded Members that at a point the project came to a stop to allow for inquiries. SAPS had taken an old report from the time when President Zuma had been Deputy President, which had resulted in minimal security measures being put in place and leaving the Zuma family vulnerable. It needs to be acknowledged at some point that the people in need of security were left vulnerable and this is an issue which Members have not looked into. As the ANC, she said that the Office of the Public Protector is supported and will remain. However, the issue is that there are various legal opinions and it cannot be said that the ANC is not allowed to express its opinion. She had issues personally with how the Public Protector behaves. If she holds these views, it must be differentiated from her views of the Office of the Public Protector. Its work in compiling the report is acknowledged, and it continues to take up issues of public interest. The public’s perception of the PP is important, however this is as important as Parliament cautioning a Chapter Nine Institution when it has overstepped the mark and this is part of its duty. As a South African citizen and a public office bearer, she will ensure that the PP operates within the legal framework. It is important to differentiate between the office and the persona, because it is the character of the person which at times tends to be problematic. She read from paragraph 63.2 of the President’s Response to the PP, “The Minister of Police as the designated minister under the NKPA to report to Cabinet on the determination of whether the President is liable for any contribution in respect of the security upgrades, having regard to the legislation, past practice, culture and findings in the respective reports”. This is in response to the PP basing her determination of the basis for the project on the NKPA and the custodian in terms of that Act is the Minister of Police. This is appropriate, as SAPS is the institution which would be able to determine what security is and is not. As she had indicated the DPW was wrong to go in to make an assessment, when its responsibility only extended to the approval of costs. On when the President ought to pay and who should determine this, the President has no legal mandate to decide when to pay and this must be done by the legally empowered structures.

Mr Shaik Emam questioned the mandate of the Committee and said he understood the mandate of ad hoc committees to be to call witnesses and determine who was responsible for the maladministration. He was concerned about a tendency to convict certain individuals, before they have even been tried, rather than taking a broad view. On the President having to pay, he assured the Committee that these would be minimal, relating to the items identified by the PP. He agreed that it was impossible for the President to not have known what was going on at his home. In terms of the Public Protector Report, the President has not denied that he is willing to pay. Therefore should the Committee not go the route of identifying all the people implicated. He doubted whether anyone has done an in loco inspection, to determine the true costs of the upgrades. To ask a person to be liable for the entire scheme, where there was so much corruption at play, was unfair. He felt that there had been inflation of prices and what was installed will not necessarily be worth the amount paid. He agreed that the Committee should proceed calling people to testify and duly hold these to account and if the President is found to have unduly benefited, he too should be held to account.

Mr Maimane said he has a difficulty in adopting the model being adopted for the country by the ANC, with the proposal that the process of holding politicians to account should be secondary, because they are not responsible for executing the tasks. The principle being established is that when an incident happens under one’s nose, one is not responsible, because one did not implement the decision. The PP finds that “even a minister would have experienced difficulty in counter-demanding Mr Makhanya”. In this instance it is being established that although the person was initially appointed by the President and was on site at the instance of the President, if that person does anything wrong, liability should fall solely with that person. He had a problem with this as a modus operandi, because it immunises executive members from responsibility. Surely, if politicians are servants of the people, then where something goes wrong on your watch, you should be the first to account. The PP indicates that Mr Makhanya acted as the go-between between the two projects, to the extent that department officials say they became the servants of two masters. Mr Makhanya’s services were not procured by the state, but by the President and therefore he acted in the interests of his principal, the President. Members had also spoken to the issue of cost versus value and the actual value of individual parts will not necessarily equal the price paid. However, this does not change the conclusion that R245 million of taxpayer’s money was wasted and to say that it needs to be determined that value for money was obtained is irrelevant. His problem was that R245 million was spent and the actual value received was secondary. Thirdly, the SIU did the right thing by not reporting to Parliament, because the SIU is accountable to the executive. The PP would have been mistaken to follow the same process, because it is accountable to Parliament. His view is that as a parliamentary body, the Committee is to study the Public Protector Report and reports from the executive are secondary to this. This argument could be used to propose that the PP’s questions to the President be placed before him by the Committee verbatim, because this would avoid any alteration or review of the Public Protector Report and reinforces the request for the same information. He hoped that a decision could be made as to whether the President will be called. He clarified that this is not about singling out the President, but about combating the notion that when maladministration happens under politicians’ noses, they are not accountable. Therefore, the principal agent needs to come before Parliament to account for the goings on in his house. The same questions must be put to the President, to avoid re-inventing an investigation and rather remain consistent with it. Surely by being complicit in the election of President Zuma as President, it can be expected that the same body should hold him to account. If this is not the case, then a bad precedent is being set for accountability in South Africa. He therefore made a formal proposal that the President be made to appear, because it was his house and his departments involved in the process.

Mr Shivambu quoted from page 437 of the Public Protector Report, to show that the President unduly benefiting is against the law. This is why the EFF has called for the presence of the PP, to avoid people putting words into her mouth. When 90% is proposed as a reasonable figure, the PP could have given further clarity on what would be reasonable. He sensed a deep-seated dishonesty because they had indicated that the Public Protector Report would not be up for review and the only institutions which can review her findings are the courts of law. Therefore, the ultimate conclusions to be reached are those reflected on page 442 of the Public Protector Report. The ten-step decision tree approach suggested by the ANC seeks to overturn the decisions of the PP and the Committee does not have the power to do so. It sets a bad precedent if it is seen that perpetrators of maladministration are protected from the PP by political parties and warned the Committee against this. Ms Kubayi had indicated that the President was not aware of the details of the projects, yet according to his own statement he was from time to time briefed, based on the assertion on page 279 of the Public Protector Report. If the President were summoned, he could have answered this for himself, yet the ANC Members persist in speaking on his behalf. The Committee should therefore summon the PP and afterwards whoever was necessary, but ultimately the President should be called. Mr Shivambu said that he would not be part of legitimising the ANC’s efforts to unconstitutionally defend the President against accounting for millions of rands which were meant for the betterment of people’s lives. As the PP says, if the head of the executive is seen to break the law, every other person will feel entitled to become a law unto themselves, eventually leading to anarchy. The Committee should be concerned with the defence of the future of the country, rather than partisan politics.

Ms Ngxobo said that the Public Protector Report said that the President failed to take care of state resources and this was reiterated by Mr Malema. The PP said this failure was based on the President’s oath as per section 140 of the Constitution. However this section does not have anything to do with the oath and therefore the President is not responsible for state resources. Rather, there are accounting officers which are to take care of state resources in line with the PFMA.

Mr Selfe in reply to Ms Kubayi who had referred to the powers of the Minister of Police under the NKPA, said he did not understand why this Act was invoked for Nkandla in the first place. More so as consequent to declaration as a national key point, none of the procedures in terms of this Act were in fact followed. In terms of the NKPA, the owner of the property is meant to upgrade the property to the satisfaction of the National Key Points Committee and this clearly was not followed. This raises the question why the NKPA was invoked in the first place and the only answer he can find is the criminalisation of furnishing of any information whatsoever regarding the security measures in respect of any national key point flowing from section 10 of that Act. This placed a blanket of secrecy over the Nkandla upgrades, preventing reporting anything about the work done. Further, she had indicated that the PP was precluded, unlike the SIU, from referring matters to the NPA and this is not true according to section 6(4)(c) of the Public Protector Act. Therefore, the suggestion that the SIU Report had more teeth was in his opinion misguided. Ms Kubayi had also referred to a moral obligation, based on the use of the word “conscionably”. However this is open to a different interpretation as this word is synonymous with reasonably or justly. The basis of the argument was to attempt to place the obligation on moral grounds, rather than legal which was profoundly mistaken. Replying to Ms Ngxobo, he said that the President’s obligation flows from section 83 of the Constitution, which places an obligation to defend and uphold the Constitution, including section 271 which deals with procurement, which he did not do. Moreover in his oath of office, which is contained in schedule 2 to the Constitution, the President swears to obey, observe, uphold and maintain the Constitution and all other law of the Republic, which includes the PFMA. It is very convenient to say that the President was not concerned with details. However if someone were to begin digging a trench for a swimming pool in Mr Selfe’s yard, he would question who is responsible for paying for this work. This is more so because it is the President involved, who has the resources to demand answers and yet the President did nothing. He therefore agrees with the PP when she states that the President tacitly accepted all the installations to his residence and has unduly benefited from the enormous capital expenditure, resulting in his responsibility to bear a reasonable percentage of the cost thereof. A two-fold question therefore arises. Firstly, how is it that the President was so unaware of what was going on that he did not make a single enquiry or raise a single objection? Secondly, if it is accepted that the President shares responsibility then it must be determined for what and how much. He felt that if the answers to at least these questions came out of the Committee, then it will have discharged its duty in large measure.

Mr Beukman said he wanted to speak to the issue of the SIU raised by Mr Swart, because he felt that there was a conflation of roles, which impacts the call for witnesses. Looking at pages 15 and 16 of the SIU Report, it indicates that it has had regard to the reports of the Inter-Ministerial Task Team and the PP. The SIU indicates the differences in terms of reference and methodology adopted by the other investigations. The SIU processes are principally outcomes driven, as a result a significant emphasis of the SIU investigation was geared towards securing the following results: first, state employees implicated in maladministration face disciplinary action at the instance of the state institution. Secondly, individuals suspected of criminal activity are duly prosecuted. And third, court processes are duly instituted to ensure that the state’s financial and other resources are duly protected, particularly to recover losses by the state institution. Therefore, the SIU is to conduct its own independent investigation. The proclamation, which is based on section 2(1)(a) of the Special Investigating Unit Act, gives the President the power to appoint the SIU to investigate serious maladministration in connection with a state institution, improper conduct by state employees or unlawful expenditure. The proclamation in this instance was issued on 20 December 2013 and set out the terms of reference. The SIU was tasked to investigate whether the procurement of goods, works or services was done in a manner which was not fair, equitable, transparent or cost effective, or not in line with statutory prescripts, or from service providers, suppliers or contractors where family or friends of DPW personnel had a financial or material interest. Further, it was tasked to investigate the manipulation of DPW procurement processes through over-quoting or the splitting of orders; the evasion of a competitive bidding process by renewing or extending contracts; the lawfulness of payments made to contractors; undeclared or unauthorised interests held by DPW members in contracts awarded to appointed service providers and the damage to the state through maladministration by the DPW. This proclamation limited the scope of the investigation to occurrences between 1 January 2008 and 20 December 2013. It is important to note that the SIU investigated the following categories of persons: DPW employees in anyway involved in the procurement process; the 15 contractors appointed by the DPW and the SAPS and SANDF officials and former Minister Doidge and Deputy Minister Bokopane-Zulu. Further as his involvement was mentioned it is possible that the President was also investigated. It is also important that the SIU does not wait until the final report is produced before acting on the evidence it has uncovered, including referring persons for prosecution or civil action in court. Further, the SIU is empowered to order any person to appear before the SIU and produce any documentary evidence and to require persons to answer questions under oath, even if the answers incriminate the person. Turning to the tasks performed, page 31 indicates that a total of 110 interviews were conducted with various persons, 54 from DPW, seven from SAPS, three from the SANDF, one from the SSA and 17 from other state departments, as well as a total of 28 persons connected to the contractors. 59 statements of persons as to what happened have been drawn in the process, 28 requests for more information were made and nine Section 5(2)(b) notices were served on banks and contractors. The bank record of seven DPW officials were scrutinised and 13 people were questioned under oath using section 5(3)(c).The conclusion come to include that the 13 of the 15 appointed contractors and consultants did not comply with applicable legislative and regulatory prescripts. There was over design and over-payment of professional fees. 14 contractors did not submit valid tax clearance certificates and two of the contractors did not have the required grading to perform the work commissioned. This is therefore in line with the submission by Ms Kubayi indicating a flawed process and this is clear from the SIU Report. Referring to the ten-step decision tree, this is what the Committee needs to look at in determining non-compliance and who is responsible for this derogation of duty. It was also questioned where the amount of R155 million comes from and this is contained in the annexures on page 215 of the SIU Report. The claims are set out, including motivation for recovery. The SIU indicates it has used two experts in the determination of the liability. Lastly, it is clear that a thorough process was followed in determination of the liability. Looking to the road ahead all the reports need to be considered, mindful of the divergent mandates and roles played by the author institutions.

Mr Singh agreed that all the reports need to be looked at and the SIU poses no problem. What remains to be done is for action to be taken, which has already begun. What is taken issue with is that President has responded to the Public Protector in his letter of 11 September 2014, disagreeing with the assertion that by law the report of the PP is not subject to any review or second guessing and that these finding can only be set aside in a court of law. Further, there is the issue with the construal of the role of the PP, with the President saying it is merely an ombud, which Mr Singh disagreed with. He would like to contend that the President has not answered all of the questions of the PP and he is not following the remedial action proposed. Therefore, there is not a problem with the SIU Report, but the problem lies with the Public Protector Report. If the President disputes the PP’s mandate, then certainly the remedial actions would be disputed. The best guidance the Committee has is the SCA decision in the Mail and Guardian case.

Ms Dlakude said that it needs to be clear that the Committee is not reviewing the Public Protector Report as there is no mandate to do so. The Committee is thus to consider the reports and make its own recommendations to Parliament. The Public Protector Report notes interference by the Minister and Deputy Minister in the security upgrades. Further, it indicates that the President was briefed and he failed to respond to questions by the PP. She suggested that this was because the President did not have answers to some of the questions. The President’s ignorance was due to the potential that he would ‘transgress’ if he were to become too intimately involved. Further, “he didn’t have that time to know each and every thing, how much is being spent here and what are the security measures…we cannot expect him to be a jack of all trades and know everything”. On the chicken run and kraal, she said these were already in place and when the upgrades started it was necessary to relocate these facilities, resulting in the person who moved these items being responsible for their reconstruction. On the matter of collusion, she said the SIU has already begun the process, but all the people responsible must be held accountable for their actions and there are already court processes in place. We cannot hold the President responsible for something that is done by someone else…we cannot say that the President was involved. The bank account of whoever must be checked. This is the work of the SIU and has already been done. On the PP’s role and function, she said that it is not the Committee’s mandate to deal with this, because it is not reviewing any reports. On the ANC taking instruction from Luthuli House, she said they are not apologetic about being members of the ANC and do not need to be reminded of their identity. Everybody in the Committee is here to push their political party’s mandate and the ANC is not apologetic about this and they are proud to belong to the headquarters called Luthuli House. On the issue of the bond, she said that this is a private matter, between an individual and a financial institution. If such an institution were to reveal that an individual has a bond with them for a certain amount, they would be liable for revealing confidential information. She believes from the answer given by the President in the National Assembly, that he has a bond. Further, it is common cause that when the security upgrades arose, the President was already engaged in renovations.

Dr Mulder responded to Ms Kubayi where she conceded that the President knew, yet he had done nothing wrong. This is inconsistent with what the PP has indicated, referring to page 430, paragraph 10.4.2, where the allegation of the first complainant is referred to by the PP, specifically that the expenditure constituted opulence on a grand scale is substantiated and the acts and omissions which allowed the excessive expenditure on non-security items and failure to arrest the wild cost escalation, especially after the story broke in the media in December 2009, constitutes improper conduct and maladministration.

Dr Mulder asked who had committed the maladministration and if the person benefitting was absolved of having to take any action. The PP continued on page 430, paragraph 10.5.2, the allegation that the excessive expenditure added substantial value to the President’s private property at the expense of the state is substantiated. And the excessive and improper manner in which the Nkandla project was implemented resulted in substantial value being unduly added to the President’s private property. Further, the acts and omissions that allowed this to happen constitute unlawful and improper conduct and maladministration. This is contrary to the assertion by Ms Kubayi that the President did nothing wrong. Turning to page 439, paragraph 10.10.1.5, of the Public Protector Report he reads: It is also not unreasonable to expect when the news broke in December 2009 of alleged exorbitant amounts, at the time R65 million, in securing installations at his private residence, the dictates of section 96 and 237 of the Constitution and the Executive Members Ethics Code required of President Zuma to immediately inquire into the situation and correct irregularities and excesses. In the next paragraph she found that the President’s failure to act in protection of state resources constitutes a violation of paragraph two of the Executive Ethics Code and accordingly amounts to conduct inconsistent with his office as a Member of Cabinet as contemplated by section 96 of the Constitution. These were findings by the PP of maladministration and improper conduct by the President. Dr Mulder said he was replying to Ms Dlakude who has said that the President cannot be held responsible for any actions he did not take. However this does not answer for actions he ought to have taken, but did not. These things did not happen in isolation and as a Member of the Fourth Parliament he remembers the question of Nkandla being on the agenda time and again. Ms Dlakude also said that the President may have not answered the questions because he was not informed of the answers. He read out 18 of the 29 questions asked by the PP on page 342 to which the President did not respond, to test the veracity of Ms Dlakude’s assertion:
- - Whether he or the Presidency requested the security measures be installed at his private residence?
- Whether he was at any stage informed of the cost of the proposed security measures?
- Whether a notice declaring his private residence a national keypoint was served on him?
- Whether What he understood to be his responsibilities as a the owner of a national key point?
- Whether What measures he took to secure his private residence as an owner under the NKPA?
- Whether he was advised that some of the cost of securing his residence as a national key point would be recovered from him?
- Whether he was presented by Mr Makhanya with the designs of the project?
- Whether he received a letter consisting of a detailed report on the progress made with the project addressed to him from the former minister Mhlangu-Nkabinde on 5 December 2010?
- Whether he received a document setting out the apportionment of the cost prepared by the DPW?
- Whether the deputy-minister discussed the conversion of a fire pool into a swimming pool with him and whether he was aware of the reasons for this?
- Whether he was consulted about the relocation of the households affected by the project?
- Whether he was opposed to more contractors working on the site during phase two of the project?
- Whether the deputy-minister discussed the designs of the military clinic with him?
- Whether he would be willing to disclose the amount that he paid for the construction of the new dwellings on his property?
- Whether How often he uses his private residence for official purposes?
- Whether Why he would prefer using his private residence for official business, rather than one of the official residences available to him?
- Whether he at any stage enquired into the cost of the project?
- Whether If not, whether he as head of state did not feel obliged to do so, because a large amount of public money was obviously being spent?

Dr Mulder said today it is known that more than R200 million was spent and it is one thing to talk about corruption in Parliament, but perhaps there was a duty on the President to take certain steps. Ms Dlakude also said that if there is someone in her employ that commits a wrong, that she could not be responsible. This cannot be so and he echoed Mr Maimane, asking if this is the norm that the Committee wishes to set? Where politicians are never responsible for anything, because the implementing officials are responsible. He therefore felt that at some point a decision needs to be made in terms of the resolution of the House and Rule 138, which empowers the Committee to call people, on whether in principle people are going to be called and if so a list must be drawn up, as suggested by Mr Gardee.

Mr Maimane echoed Dr Mulder on the point of vicarious liability, asking, in the collusion which occurred with the World Cup stadiums, should the fine have gone to the foreman working at the site? Clearly not, it was properly served on the CEO and the principle should apply here. Surely there should be some liability transferred to the principal who introduced a person known to him into the process, who acted as project manager to drive the process as he saw fit. Therefore, it should not be debated whether the President is liable, as he surely is. The second point which he wished to put forward was what the Committee’s view on the remedial action proposed by the PP. The concessions he had heard today were that the President knew and that the Committee is not here to review the PP’s findings. If these statement are valid, then the third step is to ensure that the remedial action proposed, takes place. Therefore, the Public Protector Report can be set aside and it can be asked when the President is going to implement the actions. Otherwise the Committee is going to be trying to undermine the Report. He agreed that the list of people to be called must be drawn and the list would be incomplete without the President. He sought a ruling on the two issues which he had suggested.

Mr Malema said that sometimes people try to defend the indefensible and “this is what happens when you love the party more than the country”. When Ms Dlakude says that the President did not have the answers, if she has spoken to the President then she has been misled, because how can he not know whether he requested the measures to be installed. If the President has a bond, why not disclose how much he has paid the architect and contractor? The response received was that the President is not a jack-of-all-trades and cannot be expected to know – this is insufficient. If Members come and defend with everything they have, to the point where they become emotional, it is going to expose the intention. The only person who knows the answers to these questions is the President, and if he refuses to answer the PP, he must appear in the Committee to answer. Ms Dlakude’s indication that the expenses for the kraal and chicken run were a necessary result of the security upgrades and therefore not the responsibility of the President, is simply wrong, because these are cited by the PP as some of the things to be repaid. If President Zuma cannot be held accountable, nobody should be held accountable. Why should one be made above the law? The PP indicates in her report that if government breaks the law, the message sent to the man on the street is to be a law unto themselves. What is being done to the Constitution and democracy in defence of an individual? It is being pushed towards anarchy, because the people being held to account, will turn around asking why it is only them who are accountable. On the point that one cannot be held responsible for the wrong doing of one’s employees, ignorance cannot be an excuse against liability. He did not think the President has a bond. Here is the whole country accusing you of not having used a cent to build your property and then you say you say you have got a bond. They say prove it and you would gladly do that because you are proving your innocence. Why would a person claim that a document which would clear their name, is private? The President has chosen to live a public life and this does not stop at any point. He challenged the President to produce evidence of a bond, but believed he could not. President Zuma has disclosed many things in public, including publicly testing his HIV status, which is a private matter. Why change now?


Mr Malema said he appreciated that the Members come from different political parties, but questioned why the ANC would accept advice from someone who has never been involved in Parliament and does not understand its processes. Further, he had no problem with advice being taken, except where such advice leads to wrong decisions. In conclusion, the Committee needs to decide how to implement the remedial action and summon people to appear before it. He urged the Committee to be consistent and support the Constitution, because while the ANC indicates that the Office of the PP is important, it says, however, the persona is known to over-step the bounds of her office. Yet the Committee is not told in what way. The PP did not over-step her bounds. She acted within her scope when she produced remedial action, including instructing the President to pay an amount as determined and then called people to determine the extent of liability. To do anything else would be unconstitutional.

The Chairperson referred to page 342 of the Public Protector Report which indicates that with the assistance of the Director General in the Presidency, she established through the declaration of interests that this reflects that the President has a bond and this was confirmed by his legal team.

Ms Kubayi said that the Public Protector Report states that the project was initiated under the NKPA, and it needs to be determined whether the declaration of the President’s home as a national key point was done properly. She said that the President’s response is aligned to the NKPA and this is what she was trying to clarify. According to section 3(a) of the NKPA, it is seen that once the property is declared a national key point the Minister is to take over. Replying to Dr Mulder and referring to page 344 and 345 of the Public Protector Report, it indicates that the President’s response was not premised on his being under investigation and had he been aware of this, he would have responded accordingly. She is not convinced of the emphasis on the insistence that the President be present Further, that when she is charged with defending the President with everything she has, she needs to be told how, because she is engaging with the reports and drawing conclusions from there. She could simply say that there is a personal vendetta at play and ask not to be drawn into that, but this is not the function of the Committee which is to look at what is before it and engage accordingly. On how things can happen in one’s own home without the owner’s knowledge, she referred to the Public Protector Report where it is found that the Minister and Deputy Minister were uncomfortably close to the process. Her argument was: Would the President not have been similarly impugned for interfering? On the escalation of costs over the years, she asked what legal framework was guiding this. The National Treasury Guidelines and PFMA are very clear that this needs to be reflected in the budget. How can it be said that the President ought to have known when there is nothing to this effect in any of the government documents, particularly the budget. Therefore in the absence of official triggers for his knowledge, how can this be attributed to him? Referring to the response of the President, she said that paragraph 63 specifically states that he acknowledges all the reports and she is unsure what the problem is. She suggested that the reports which are to be tabled to Cabinet, also be required by Parliament, because this will aid in the oversight function. The ANC is not selective in holding persons to account, nor is it reckless in terms of the law. The Committee needs to be cautious, because if it flouts the law, the President has remedial action available and he can challenge its decision. She remains unconvinced that there is a need to call anyone, because the Committee is not re-opening investigations or questioning any findings. Calling people involved questioning, which is undoubtedly investigation. What if the people called present contradictory evidence to what the PP has stated, surely then the Committee will be forced to review the findings of the PP. Therefore, she does not support calling anybody, because for the above reasons it could lead to a constitutional crisis.

Dr Mulder said Ms Kubayi’s suggestion is that to avoid the constitutional crisis, that the Committee do nothing. She further attempted to defend the President by referring to his statement contained in page 344 of the Public Protector Report to the effect that he was unaware that he was under investigation and would have replied differently had he been aware. However, all that needs to be done is to read further on page 345 where the PP writes, “I was quite astonished by these submissions of the President that he did not know he was part of an investigation”. The next paragraph reads “shortly after I received the first complaint… I informed the Director General in the Presidency of the complaint and met with him regarding this in January 2012, I believed it was reasonable to expect that Dr Lubisi would inform the President accordingly”. And further, “On 15 February, I wrote to the President directly, informing him of a complaint that I received from a member of the public based on the article published in the Mail and Guardian newspaper on 11 November”. Further, “On 20 February 2012, I received an acknowledgement of the receipt of my letter addressed to the President from the administrative secretary, Presidential Support Services, that it was received and would be brought to his attention”. This is not mere speculation, they are findings by the PP and Ms Kubayi “must not come to this Committee saying she defends the President because the President really did not know”. You cannot go through public life as a President and know nothing, at some point responsibility must be taken. Ms Kubayi further argues that the President could not get too close to the process, lest he be implicated, but this is not about an arbitrary project for which another line-function minister would have responsibility. This concerns the private residence of the President and if there is one project he should take responsibility for, it is this one. Ms Kubayi also argues that the President cannot be expected to know, because the budget did not reflect the cost escalations. However, it is known that all the regulating provisions were ignored. Dr Mulder had argued earlier that this did not simply happen and the reports suggest it is due to the application of political pressure. There were more than 11 cost estimates done throughout the project and the principal agent would have been the closest to these and the principal agent is the man introduced into the project by the President himself. The President indicates that he was briefed throughout, but not once did he question where the money comes from. He heard the Chairperson’s point about the bond, but the question he did not know was whether one could register a bond over land under the control of the Ingonyama Trust and in whose name would this be done?

Mr Malema said that he does not accept the intervention of the Chairperson regarding the bond, because PP says that the assurance came from the acting Director General and the President’s legal advisor, Mr Hulley, which he felt problematic. Therefore there is no evidence in the Public Protector Report which indicates that a bond was registered. He also picked up the point of Dr Mulder, saying he did not believe one could register a bond over tribal land. He disagreed with Ms Kubayi’s argument that the President could not know about the cost escalations, because it was frequently reported in the media and this dealt with the President’s own house. The best way to deal with this is to have the President come and answer the question. Further, the President will not be able to provide contradictory evidence, because he did not provide any to begin with. Therefore the potential for a constitutional crisis does not exist. How is it possible that the President was not aware of being under investigation when this was happening at his own home and the PP sends questions regarding the investigation? “It seems every time [the President] gets into trouble, he plays this ignorance thing”. He asked what the proposal of the ANC is on taking the remedial action forward, because it is rejecting everything suggested by the opposition. This is because the ten-step decision tree provides no guidance and if the ANC is suggesting that the PP’s remedial action is not changed, then it must be lived by and implemented. Lastly, he had seen the Chairperson being continually briefed by people during the meeting and this worried him, because he was unaware of who these people were.

The Chairperson replied that Mr Malema had been absent from the last meeting and at the last meeting the people had been introduced as the researcher and content advisor to the Committee and the Chairperson has a discretion to enquire from the Committee staff on points of clarity. He re-emphasised the reference in the Public Protector Report to her acceptance of the existence of the bond, and if he disputes this, he may be venturing into reviewing the Report.

Mr Malema answered that he was not doing so and he disagreed with the Chairperson’s intervention, because it suggests that there is evidence of the existence of the bond and this is not stated by the PP.

The Chairperson said that he had referred to the statements as captured and these refer to the Register of Interests which is a legal document kept by Parliament. Whether Mr Malema wishes to interpret this in another way, it is up to him.

Mr Malema replied that there is nowhere in the report where the PP explicitly states that she has received material evidence of the bond. He strongly suggested that the President has misled Parliament and that intervention will be made at a later stage to the ethics and privileges committee for full investigation.

Dr Mulder said, agreeing with Mr Malema, that the PP had stated that she had been made aware that the President had declared the existence of such a bond in the Register of Interests and this is a voluntary declaration and is not investigated to verify the existence. The declaration may not be proof in and of itself of the existence of any such bond. Further, the PP reports that she received assurance from the President’s legal team. This means that both instances come from the President himself, rather than objective proof.

Ms Maseko said that she felt the suggestion of the opposition was beginning to review the findings of the PP. If the process of investigation is re-opened, then this amounts to a review and it was agreed in the last meeting that this would not be done. Against the claim that the ten-step decision tree is irrelevant, she said that this is how it is determined which officials flouted the process. Further, the President did not appoint Mr Makhanya to the DPW, rather this was done in his private capacity. Therefore, as plans to upgrade his home were already in place, instead of “re-inventing the wheel” he introduced Mr Makhanya to assist the DPW’s project. It was the DPW which made the appointment. She also insisted that the President did not ask for his homestead to be declared a national key point, because he does not determine this. Further, the President did not request the security upgrades, because it is by virtue of assumption of office that one qualifies for security upgrades. The security cluster is to determine the security needs of the office bearer and then the DPW does the cost approval. She challenged Mr Malema to show where the PP indicates that the President continues to take state resources to enrich himself and his family. On the issue of the bond, if the PP wanted to see the bond she would have pursued the document, but she did not and was satisfied with the assurances she received. She did not believe the President had misled the nation as to the existence of the bond. Reiterating Ms Kubayi’s point on the perceived political interference by the Minister and Deputy Minister because they were too close to the process. How much more would the President have been criticised for political interference. On page 345, the PP assumes that after she had spoken to the Director General in the Presidency that he would communicate this to the President. She felt that the Committee has a greater mandate which is to help the public administration close gaps open to corruption, through the overhaul of the Ministerial Handbook or other means.

Mr Shivambu noted on page 425 of the Public Protector Report, it said, “in terms of the Kwa-Zulu Natal Ingonyama Trust Act of 1994, the Ingonyama Trust Board required the consent of the relevant traditional authority or community before it could enter into a lease agreement with the DPW” and according to the evidence, the legal process to regulate building on trust land was not complied with. Therefore he fails to understand how a bond could have been registered regarding land upon which there was no agreement that construction could proceed. Therefore there was no bond and Parliament was misled. Also, there are no firm proposals coming from the ANC. On the other hand a concrete proposal is coming from the opposition as follows: the Public Protector Report should not be reviewed with the remedial actions proposed on page 442 implemented as is. The recommendations of all reports should be considered and allowed to continue. Lastly the President should be called to the Committee to answer the unanswered questions. Calling the President to the Committee is not inconsistent with the remedial action proposed, because the last recommendation is that the President report to the National Assembly on his response to the Report, which at the time was supposed to be within 14 days. He asked for a solid counter proposal, because he felt the ANC was arguing in circles and repeating itself.

Mr Maimane wanted to crystallise this proposal to simply say there are a few people who need to be here. He took issue with Ms Kubayi arguing that the Committee does not need to call anyone, as the first principle is that there are unanswered questions, which all point to one person: President Zuma. If these questions are not pursued, then the Committee will be failing the taxpayer. He proposed that President Zuma, Adv V Soni , Head of the Special Investigating Unit, Adv Thuli Madonsela, the Public Protector and the political principals who were in fact involved in the project. The Committee should not get bogged down in calling clerks and the like, when there are political principals. Post that process, then Committee will be in a position to make valid recommendations, beginning with the implementation of the remedial action proposed by the PP. Subsequent to this, measures can be determined which are preventative in nature, because this is not simply about the prosecution of President Zuma, “because in future a President who predicts becoming President in a few months could procure a small holding in a rural area and put a tent there and say come and secure me here”. The Committee must ensure that this does not happen again, because the Public Protector Report uses words like ‘it was licence to loot’ and in his view it was licence to steal, because taxpayers’ money was stolen. Therefore it is not an investigation. It is carrying out the duty of Parliament to prevent similar actions in the future. When dealing with President Zuma, he is amazed that people say that the President does not sign cheques, however this cannot be used to argue against his responsibility, because this would mean that in future no politician can be held responsible for corruption, because they did not enter into the contracts. He labelled this logic as flawed and dangerous, because this leaves the officials involved always liable. He highlighted the contradictions in the President’s response in Parliament to the question whether he knew about the project, where the President stated, “all the buildings and every room we use was built by ourselves and our family, not by government…the government has not built a home for me”. The President proceeds to say, “I told government that I have my own plan, which was a comprehensive plan, what then happened was I allowed government to meet with the contractors already on site”. After allowing this meeting, he then insists from a security point of view that these people participate. Therefore, it is clear that two things are being dealt with, which can only be settled when the President is confronted with the questions. First, that as he says the government did not build him a home, how would the security upgrades which involved the building of homes be clarified? Secondly, what does the President mean when he says he introduced people, especially when subsequent to this the person becomes project manager? The proposal is simple, let it be decided presently who will be called and when they will appear. He would argue the process of synthesis is complete and the next step can be acted upon. It has been established who knew what and therefore the President should be brought in to explain why there are contradictions to the statement he made in the House of Parliament.

Dr Mulder returned to the argument by Ms Kubayi, which warned the Committee to be careful in what it does, because the President may take remedial action. This may be so, but he was not concerned about that, because he felt that Parliament and the Committee holds the trump card, in the form of the Constitution. Section 55 of the Constitution enjoins Parliament to exercise oversight over the executive. Two of the most comprehensive reports produced during the lifespan of the democracy are before the Committee and all that needs to be done is for the Committee to play its constitutional role. Dr Motshekga suggests that the ten-step decision tree is the answer. However the Committee cannot follow this because how is the problem of understanding why the directives were not followed, to be dealt with? He suggested that this should be done by calling the responsible individuals. However, Ms Kubayi argues that the Committee should call no one. If the Committee decides to call nobody, despite common knowledge that 18 of the 29 questions asked by the PP were not answered nor the majority of the questions put by the SIU, the only reasonable inference he can draw is that the Committee is part of a cover-up. The President felt it was a good idea to undermine these institutions and not comply, if the Committee ‘plays along’ then it becomes complicit in that kind of approach. Ms Maseko argues on behalf of the PP that she is satisfied as to the bond, however this is not so according to the Public Protector Report. Referring to page 281, the PP indicates that, “I indicated in my said letter to the President that the concern of the complainant and his impression is that you may have violated the provisions of the Executive Ethics Code by misleading Parliament when you say you have a bond. I also referred you to the public statement of the Presidency of 20 November 2012 that the information relating to the bond in the statement of the President would be made available to an authorised agency or institution empowered by the law of the land, you will respectfully agree with me that this includes the PP”. The PP later indicates, “I accordingly wish to appeal to you to provide me with the relevant documents pertaining to the bond you refer to and information contained in these documents will be handled discreetly as they relate to your private affairs and all I need to verify in this regard is that the bond exists and relates to your private residence at Nkandla”. The PP is clearly not satisfied as argued. A Member had also argued that if the questions which were never answered are asked this amounts to a review of the Public Protector Report, and this is not true. However, some Members are shying away from the Public Protector Report. The PP “treated the President with gloves… she was very, very soft on the President”. The PP’s remedial actions contain only four steps: reprimand the ministers, cooperate with the identified bodies to determine how much is owed. The PP could have found that the President was in violation of Chapter Nine of the Constitution because he was not cooperating with the PP and therefore was undermining the Constitution. Therefore, when Dr Mulder calls for further evidence he is fulfilling the duties of Parliament to hold the executive to account and in fact the Committee should go beyond the Public Protector Report. The Public Protector Report is not up for discussion and the remedial actions are not mere recommendations, it is the role of Parliament to implement these actions. This is not the totality of Parliament’s role. If it takes oversight seriously, then it should go beyond the remedial action prescribed. The Committee cannot do what it is supposed to do and it will not be able to do its duty if it is thought that calling people is unnecessary. He therefore supported the proposal that a list of people to appear in the Committee be drawn up. He argued in the first meeting that the importance of the process should not be underestimated, it goes beyond merely the PP versus the President. If Parliament fails in its duty, how can anyone ever again be expected to take Parliament or any oversight seriously, when the President did not even do so? ANC Members are quite happy that nobody is called to account and that the Committee should be satisfied that the majority of questions were not answered and the ten-step decision tree cannot be implemented, because the Committee simply does not know why the regulatory provisions were ignored.

Mr Maimane raised a point of order asking the Chairperson to clarify whether he was going to hear all the inputs before calling for a decision or simply let the proposal “hang”.

The Chairperson said that there is a list of speakers, with Dr Motshekga as the last speaker and once this is done the matter will be considered.

Ms Dlakude wanted to draw the Committee’s attention to page 286 of the Public Protector Report where Mr Khanyile’s evidence indicated that, from the time that the Nkandla project commenced, the procurement processes were different from the norm and failed to comply with the prescribed standards of demand management and budgeting. Further, the officials involved clearly thought that due to the fact that the Nkandla project related to the security of the President, which was why it was regarded as urgent and as it was driven from the DPW’s head office and the Ministry of Public Works, the deviations from the norms were justified. What was abnormal was that the head office was interfering with the project manager and regional office, further the Director General was operationally involved in the project was on site and met with professionals and gave instructions which were contrary to the regulatory framework. The Minister, as political head of the DPW, was supervising the project every two weeks, including chairing the site meetings. Hence the ANC says that it is understood that according to reports there was serious looting of state funds during this project and this is why it is asserted that no report is superior to any other and all the findings agree with each other. Therefore, the ANC believes its role to be to consider the reports and formulate its own recommendations to be placed before the National Assembly. “What we are not going to agree upon is for people to be called before this Parliament, reason being we are not opening an investigation. Investigations have been done by the people relevant including the Public Protector”. Therefore, the Committee is to look for loopholes and make recommendations geared at not allowing this to happen again. It is agreed that the SIU has already began referring people to the NPA and instituting civil claims.

Mr Gardee referred to page 426, paragraph 9.2.1, of the Public Protector Report which clearly states that the report is in terms of the Executive Members Ethics Act. What this means is that this Committee was not established because there is an SIU Report or “an Nkandla scandal”. This Committee was established because in terms of the Executive Members Ethics Act a complaint was received and flowing from this Act, an investigation was performed and this was reported on to Parliament, leading to the establishment of the Committee. Therefore the Committee should treat the Public Protector Report as primary and any others as subsidiary. Anything beyond what was is stated on page 442 of the Report is unconstitutional and ANC Members should not try to hoodwink Members into an unconstitutional process. The claim that the President did not know was “naivety at its best”, because the doctrine of the duty of care and the oath of office oblige the President to exercise his powers in accordance with this doctrine. Therefore, his ignorance cannot be used as an excuse. On the introduction of the architect, this can be equated to an improper relationship, such as when an accused is subject to sexual advances by a policeman or a client by their lawyer. In this situation the President is introducing an architect and what is expected of the public servant. He said “on the 5th of May 2014… [while] the President cannot produce a mere permission-to-occupy paper…has the guts to tell the world the security upgrades were very proper, because his wife was raped”. How can the President reveal such things, but fail to produce documents proving a bond. If the Committee persists in its approach, there are civil society organisations which are prepared to take the Committee’s process to court to have it declared a farce. The Constitutional Court will order as such and Members will be embarrassed that they are called to order by the judiciary. Therefore, it needs to be agreed that the conclusion is the PP is the author of the document which led to the existence of the Committee, not the SIU, and accordingly the PP is the prime candidate to appear before the Committee, then certainly the President should follow and then the rest of the implicated political principals as identified by Mr Maimane.

Mr Selfe said he is suffering from a profound feeling of déjà vu, because the present process mirrors the concerted effort in the previous Ad Hoc Committee that the reach of the Committee is shut down. Ms Dlakude states that the Committee’s role is to consider reports for any flaws, table recommendations in Parliament and not to open any further investigations supplemented by witnesses. This suggestion would be a profound failure of the constitutional responsibilities of Parliament according to section 55 of the Constitution. This section is very clear and states that the National Assembly must provide mechanisms to hold the executive to account to it. “If we simply take note of the reports and make some random recommendations” it will not take the Committee any closer to holding the executive to account. There was systematic looting by the executive and the Committee needs to satisfy itself that the unanswered questions in the reports are satisfactorily answered and this would not be re-opening the investigation, it would simply be augmenting the investigation and drawing it to a close. If the cracks are merely papered over and the situation is treated as an unfortunate mistake and responsibility is placed with a clerk in a government department in Durban, then the Committee will have profoundly failed in its duty, in the most abject way. He therefore appealed to the ANC Members to take their constitutional duty seriously and pursue the unanswered questions, lest Parliament be reduced to a farce.

Dr Motshekga said that when it is argued that there was a tacit acceptance of the upgrades, he does not understand. How does someone who tacitly accepted this, later go and accept that the Minister of Police is to determine how much, if anything, must be paid back. The Committee must bear in mind that the responsibility that people think was wrongly given to this Minister, was their responsibility which they had at the beginning of the process, which was not discharged at the beginning of the process. In the President’s correspondence, he makes a point which is consistent with the rules of natural justice. In that one cannot be judge in one’s own matters. Why should the President be asked to judge himself, sentence himself and then jail himself? The process requires determination of whether the President shares responsibility and if so how much is to be repaid. This process is underway and therefore, the Committee should not interfere with the process and shift the responsibility onto a party which does not have such responsibility. To say that there is remedial action and that it must be fully implemented as it is binding, is to deny that the question is still open. The SCA has not addressed itself on this particular matter, it only spoke to the expansion of powers of the PP, inasfar as these powers allow pro-action. Therefore the nature of the remedial action is in dispute. How can it be said that the people disputing the binding nature should accept it as such? Given the situation that there are conflicting opinions on the nature of the remedial action, how can the Committee ignore that there are two points of view and the courts have not expressed themselves on this? The balance of evidence by academics and the practice in this Parliament is that this remedial action has the status of a recommendation and therefore it is for us at the end of engagement to decide what do we do with this situation where the balance of evidence points in the other direction. On the point of moral obligations, law is about certainty and the standard is that of a reasonable person. On the suggestion that if the President shares responsibility the only question is what he must pay for and how much, but the Minister of Police is seized with this matter and the Committee cannot pre-empt the outcome of that process. As multiple reports are before the Committee, it cannot be said one supersedes another, rather the Committee should accept that there are differences between the reports’ interpretation of the nature of remedial action and the Committee after full engagement has to decide for itself. Many things have been said about whether the President knew or not, but in law hearsay and media are not used as standards for personal knowledge. Therefore, it cannot be said that the President has personal knowledge because of newspaper reports. Dr Mulder spoke to omissions by the President and Dr Motshekga warned against individualising, because in the executive there is both individual and collective responsibility. The President as head of the executive has appointed ministers to be responsible for certain areas of work and the President has to wait for a report from a minister before taking decisions. If a person claims that malfeasance has occurred under one of the portfolios, must the President involve himself in line functions and circumvent the appointed minister? He believed the Committee was misinterpreting the Constitution and therefore the proper role of the President and certain responsibilities are government responsibilities. Here for example a cluster is implicated and the President must await the outcomes of those interactions before acting. He sensed a concerted effort to isolate the President from his Cabinet and deal with him as an individual. This is the reason why Members resist the ten-step decision tree which is the only systematic guide available to apportion responsibility. Further, to suggest that the President has not answered 18 questions is an instance of asking a person to answer questions which are not within the person’s scope or personal knowledge, and this is unreasonable. There was a suggestion that Rule 138 gave the Committee the power to call persons. However it was accepted from the outset that there is a duty to establish the need to call persons and this has not been established yet. The demand made before the Committee was simply repeated calling for the presence of the President and Public Protector. In his opinion the PP has produced a comprehensive report which did not require any supplementary opinions. Mr Maimane was operating under the faulty assumption that the President acted as principal, because he appointed the principal agent, Mr Makhanya, and there is no evidence to this effect. The only evidence points to an introduction for the purposes of synchronisation. On the question of the bond, Members who take the view that it does not exist, do so simply because they do not believe that it exists and non-belief does not translate into fact. Therefore, the suggestion that the matter be dealt with elsewhere is correct. On how to take the matter forward, he agreed with the suggestion by Ms Dlakude, because there are comprehensive reports which make recommendations and all of these needed to be considered equally and recommendations to the House need to be produced. Mr Maimane’s fear concerning future president is unfounded, because Nkandla is the ancestral home of the President and he has not started a new home and therefore there is no basis for such a suggestion. Lastly, he confirmed Ms Dlakude’s assertion that there is no need to call anybody to appear before the Committee, because to do so would be to re-open investigations and amount to a review of the reports.

The Chairperson said that Mr Maimane had asked how far the deliberations would be allowed to proceed and Mr Singh had made this suggestion even earlier. He therefore wanted to get to the point, because clearly there are two different views on whether to call people or not; and the nature of the remedial action proposed by the PP. He would allow the last few Members an opportunity and then draw the meeting to a close.

Mr Singh said that Dr Motshekga had contended that there are two differing interpretations of the nature of the remedial action prescribed by the PP. In his and his party’s view this was not a recommendation, but an injunction that the Committee is obliged to follow based on the Constitution. There is the precedent for 20 years in Parliament, with other Chapter Nine Institutions. Take the Auditor General, this office makes a finding and gives an opinion on the financial statements of departments and state owned enterprises. An opportunity is then given to the department to respond and then a report is tabled in Parliament. After the tabling, the Standing Committee on Public Accounts considers the report of the Chapter Nine Institution and to facilitate this, the Office of the Auditor General, the implicated department and in recent times the responsible minister are called to speak to the report. The Committee then takes recommendations to Parliament after having been privy to all of this. He asked why this procedure is not being followed in the present instance and he contended that persons need to be called, not to review the report, but to clarify their positions. This needs to be done if the Committee is to do justice to its work.

Mr Malema said that he does not think that the Members are listening to each other, because if regard is had to the Report, it is seen that contrary to Dr Motshekga’s statement, the President admits having personal knowledge in the Public Protector Report, having been briefed from time to time. If there is a contestation about this, then this is sufficient reason to call the President, so that he may clarify whether he knew or not and if he is in a position to answer the rest of the unanswered questions. It is not the Members who are singling out the President, this was done by the PP, because nowhere is it indicated that the determination of whether he is liable must be done. Looking at page 442, it is clear that the President is being instructed to together with National Treasury and the Minister of Police to determine the extent of his liability. This is targeted at the President and him alone, there is no question of shared responsibility. He said, “Let me reassure you that if you want to amend the remedial actions, we are going to leave in the Committee and we will see you in court… and let a court pronounce on this matter…we are not going to legitimise [thuggery] where people want to undermine constitutional structures in the form of Office of the Public Protector through this process”. Members are being dishonest, because it was agreed that the Public Protector Report would not be amended and yet it is proposed that new recommendations be formulated, because the remedial action is not binding. If this is going to be the way forward of this Committee, then you must know that we are no longer going to participate in it. The only place where the powers of the PP can be interpreted is in the Constitutional Court…”we are not going to be bullied by the ANC which does everything in its power to protect President Zuma”. The recommendations are very clear and these need to be taken forward, the Committee should also be concerned to find accounting mechanisms as enjoined to do by the Constitution. Even if people are called and it is determined that President Zuma is to be charged, this does not amount to a review of the Public Protector Report, it accepts the remedial action and goes beyond it. The Committee should not even vote on the truth of this statement. The SIU Report cannot be of the same status as the Public Protector Report, because there was a previous Ad Hoc Committee even though there was no SIU Report and the newer reports are being taken advantage of. The Committee does not even have the power to amend the SIU findings and is constrained to add onto the list of people to face court action. Therefore anything which suggests changing the Public Protector Report is unconstitutional. He was not willing to legitimise such a process and would therefore withdraw and institute court proceedings.

Ms Kubayi said that a charge of dishonesty cannot be left unchallenged, it cannot be that people say, “it is their way or the highway” and they must be able to listen to opposing opinions even if they do not agree. She maintained that she did not see any reason why any person should be called to the Committee. She emphasised that it was inappropriate to threaten as a means of trying to provoke engagement and it is inappropriate. If she stated that she was not convinced, then it was for Members to try and persuade her through argument. She maintained the view that if people are called and challenge the contents of the Public Protector Report then this will amount to a review. “We must not be misquoted deliberately and it is mischievous to suggest that the African National Congress wants to review”. She said that it is childish to label people and call them names when there is disagreement. Her issue was that there was a clear proposal by Ms Dlakude, seconded by Dr Motshekga, against calling people to the Committee, because of the argument outlined above. It is not possible to limit the scope of what people called will say and what is the Committee to do if someone claims to have been misrepresented in the PP or SIU Reports. This is the ANC’s clear proposal.

The Chairperson said that more hands were going up, yet no new arguments are being presented. There are already two clearly opposing proposals and this is where the Committee stands.

Mr Shivambu said from the beginning of the process it was agreed that no review was on the cards, yet the proposal of the ANC clearly indicates an intention to change the remedial action of the PP and this is dishonesty. “We cannot be invited into such an unconstitutional space and action…and we cannot be part of such a process”. The ANC is beginning to betray its approach to Parliament, when it obstructs something as simple as a president coming to account to Parliament.

Mr Maimane drew parallels with a similar process, specifically the court order which President Zuma has been fighting regarding the ‘spy tapes’. He wanted to highlight the “genius” behind President Zuma, because he has used legal resources paid for by the taxpayer to appeal a court decision for months on end. This is because in his view even such a decision must be appealed to exhaustion. Now there is a report by the PP and the modus operandi is no different. His communication to the PP indicates that he does not view a court as an appropriate place to review these findings and instead tables a contradictory report in the form of the SIU Report. He warned against falling into the traps of a person experienced in delaying due process of the law and the Constitution, because this is the invitation accepted, to continue in the manner proposed. It is the President’s view that the PP’s findings have the status of an ombuds and Mr Maimane’s response is that he disagrees with the view taken by the President. This does not amount to a review. It merely raises a question of standi as to who has authority to decide upon the matter. The proposal he made places before the Committee whether to take a view which favours the Constitution and Chapter Nine Institutions, or will an executive view be taken, betraying the Committee as “a sweetheart of the executive”. Further, if the executive view is taken then it should be placed on record that nobody ought ever to comply with a report of the PP, because there is precedent where the President disregards the views expressed and it should be open to everyone to find an alternative view to the Public Protector. There is no debate about whether the questions enumerated by Dr Mulder have not been answered. Where a constitutional opinion may be required is on what was determined by the SCA as to the nature of the powers of the PP. The view of the DA is that the PP is supreme, because this is implied by the constitutional arrangement in Chapter Nine. Finally, the Committee has a choice to decide whether it is going to fall prey to a person who is experienced in delaying litigation, should the Committee be the “sweetheart of the executive” and become party to a cover-up? If the work of the PP is not supported here, then the Committee is saying that no one ought to adhere to the remedial action prescribed by the PP and this would be the biggest insult and downgrade possible. He therefore urged the ANC Members to take the time to decide against insulting the constitutional arrangement.

Mr Gardee raised a point of clarity, saying that he has a problem with the chairing of the Committee. This is because the Chairperson allows the persistent misperception of the President’s that the Minister of Police must determine whether the President is liable and that National Treasury and the Minister of Police should determine the extent of his liability. This is in contradiction with the injunction from the PP. He therefore asked the Chairperson to correct this unconstitutional view held by ANC Members.

The Chairperson replied that Mr Gardee had read the letter from the President and this is the President’s view, therefore he was not in a position to correct anything.

Dr Mulder said that Dr Motshekga has argued that the argument is exhausted and this is not the case. He was concerned that there are many things which the Committee does not know and the majority party is attempting to use its majority to prevent the Committee from finding out. He was a member of the previous Ad Hoc Committee and what is now being suggested in the present Committee is worse than what occurred before. Ms Kubayi has indicated that she is fully in accord with the process determined by the President and now the Committee must wait for the determination of the Minister of Police, as though the report of the PP never existed. As a taxpayer he could never accept that his tax money was being used to enrich the President of South Africa and why should anyone accept this, let alone the public. However the Committee will not take it forward. Dr Motshekga has indicated differing opinions on the nature of the PP’s powers. However there is no suggestion that this be investigated through the existing SCA case, rather it should be settled at the present meeting. He has been a Member of Parliament since 1994, and Members will know that he is a fairly reasonable person. However it is also known that things have changed in the Fifth Parliament. This change came about through the Members of the EFF. As a reasonable person, he was of the view that their approach was wrong, however he has come to realise that he was wrong. The way they operate seems to be correct, because the majority party wants to misuse its majority to force through unconstitutional things and he cannot be part of such a process. “Anything to protect President Zuma, you will even put the Constitution on the altar and I cannot be part of that”. The tragedy is the way the EFF acts in Parliament seems to be correct, because the majority party is flouting everything, because of the aim of protecting the President.

Ms Dlakude said that what is happening here is that many things are being raised about the President, which is not relevant to the reports, betraying an obsession with the President. The ANC is saying that it is not reviewing the report of anyone, let alone the PP. As Members should know, whenever a report is presented a committee will consider it and draft its own report to table in the National Assembly, and what is so different about this Committee’s process? The ANC believed that it was on the right track and Members had the right to disagree with this stance.

Mr Malema spoke on a “point of privilege” asking the Chairperson to crisply place the proposals before the Committee. This is because the opposition has proposed that a list of persons to appear before the Committee be drawn up and the remedial actions taken as they stand. While he believed the ANC states that no one shall be called and the remedial actions can be subject to change. He asked the Chairperson to allow the latter position to be clarified.

Dr Motshekga replied that the Constitution empowers the PP to investigate any matter in state affairs, which is believed to exhibit impropriety or prejudice. Then make a report on the situation and take remedial action. The question then is what does remedial action in this context mean, and there are differing opinions. The view from the opposition is that the remedial action is binding. However, the ANC feels that the remedial action may be mandatory or optional and this question has not been solved by the SCA. The view then taken is that the remedial action is not binding and has the status of a recommendation. Therefore, because of these differing views it would be incorrect for the Committee to say that the remedial action is binding. On the balance of evidence by legal academics, this is taken as not binding. The Constitution, is therefore no under attack because it is subject to interpretation and competent people have not come to consensus on the position advocated by the opposition. It is therefore unfair to label the ANC as acting unconstitutionally for taking a differing interpretation.

Dr Mulder said that the point spoken to by Dr Motshekga is vital and will eventually end up in the Constitutional Court. He did not want a decision to be taken on information which may not necessarily be correct, because it has huge implications. He suggested that the Committee resume the following day and that the court case is looked at. Dr Motshekga asserts that the majority of academic opinion is one way or another. Section 182(1)(c) read that the PP has the power to take appropriate remedial action and this has been done through her report. Dr Motshekga argues that this not so, based on academic opinion and he therefore regards the force of the remedial action to be equal to a recommendation. He asked the Chairperson not to force the decision to be taken presently, but to allow for Members to reconvene with the benefit of the SCA case in question and perhaps call in constitutional law experts before this decision is taken.

Mr Maimane said that it is clear that legal opinions will be required. Therefore, he proposed that the decision be suspended until the morning so that the Committee can avail itself of such assistance, with the proviso that this decision will form the agenda for the next meeting.

Mr Malema noted that recommendations are not taken they are made, yet the Constitution says “take appropriate remedial action”. Therefore, it cannot be a recommendation, it is an action. He agreed with the suggestion of Mr Maimane, because this is a very important constitutional matter and would be best taken the next day. He added that a decision should be made on whether the Committee is to call people before it, which is not to say call for the presentation of new evidence.

The Chairperson said that the request was fair and the issue in front of Committee will be whether any entities are to appear before the Committee and the binding nature of the remedial action as proposed by the PP, he then adjourned the meeting.

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