The Committee extensively discussed the Western Cape High Court judgment on the Public Protector’s Report dealing with the SABC chief operating officer appointment. The judgment pronounced on whether remedial actions recommended by the Public Protector were binding and enforceable. The judgment read that the Public Protector’s remedial actions were neither enforceable nor binding, but institutions of government could not ignore the report. The judgment went further and said the ‘Public Protector’s independence was subject only to the Constitution and the law’. If the remedial actions of the Public Protector were binding and enforceable it would have said so in the Constitution. This coincided with the majority party’s stance on the matter.
The Committee’s Content Advisor read out the draft Committee Report which gave an overview of what had transpired in the Committee as well as the reports the Committee used as source documents to make recommendations. He gave an overview on the commonalities and differences in the reports and an overview of how the Nkandla issue had progressed over time. The Joint Standing Committee on Intelligence (JSCI) report stated that the Department of Public Works paid for the security upgrades that were based on the assessments conducted by SAPS and SANDF which amounted to R71 212 621.77. The cost for other departmental operational needs required for securing the President’s private residence, amounted to R135 208 022.51. As at December 2012, the total amount spent on the project was therefore R206 420 644.28. DPW Acting Chief Financial Officer at that time, provided evidence in the form of a works control system printout showing that R26 677 240.46 representing variation orders was added to this amount and brought the cost of the project as at December 2012 to R233 097 884.74.
Committee Members made observations, findings and recommendations which would later be drafted and presented at the next meeting. Members said there had been flouting of the laws and non-adherence to the legislative framework by the officials who were tasked with the responsibility of the Nkandla project. There was a dereliction of duties by the accounting officers by not adhering to the PFMA guidelines. The Executive Authority neglected their duties especially in terms of oversight. There was no coordination between the relevant departments. It should also be noted that there was no legislation in place that promoted such coordination and this was a gap the Committee could make definite pronouncements on.
Further recommendations included the review of the Cabinet Memorandum of 2003 and the National Key Points (NKP) Act. None of the reports before the Committee found that the President violated the Executive Members’ Ethics Code. The Public Protector’s Report stated that the work done at Nkandla did not warrant the expenditure and SIU’s report also stated that there was a lack of adequate security features. There should be an independent assessment done by the ‘expert’ and a report should be tabled in Parliament. Steps needed to be taken so that this did not happen again, but those who were found to have been flouting the law, needed to be held accountable.
The Chairperson noted that a request was made for an extension to report to the House and the National Assembly had granted the extension. It also agreed that the Committee continue with its work in line with the original House Resolution. Notwithstanding that certain Members, who served on the Committee, decided to withdraw their participation, the work of the Committee would continue and it would be concluded. Members would also recall that the Content Advisor, Mr Shuaib Denyssen, requested more time to complete the Draft Report, which was now done.
The Chairperson confirmed that there were no apologies from any of the Members not present. He also confirmed that all the Members that served on the Committee had received the notification of the meeting.
Consideration and Adoption of the Agenda
The agenda of the meeting was adopted without amendments.
Consideration and Adoption of the Meeting Minutes dated 30 September 2014 and 9 October 2014
The Chairperson said the Committee did not adopt the Minutes of the meeting dated 30 September 2014, because there had been a technical problem in producing the minutes on time.
The Committee proceeded to consider the Minutes dated 30 September 2014 for adoption.
Ms M Kubayi (ANC) referred to page four of the Minutes under the heading ‘Discussion on the input provided by the Content Advisor’. She asked if there should not be an explanation why the discussion of the Special Investigating Unit (SIU) Act was requested. It did not stipulate what the presentation specifically focused on.
The Chairperson asked if the Committee agreed that specific reference to what the SIU Act stipulated should be inserted and to amend the numbering to show consistency and the Committee agreed.
Ms Kubayi referred to page 5 to the resolution of the administrative team to start compiling the draft report. She asked if the resolution was not misplaced because where it was inserted implied that it was part of the discussion on the content of the meeting. She proposed that it be moved to the summary of the resolutions or to the Chairperson’s concluding remarks.
The Chairperson suggested that it be moved to the concluding remarks and the Committee agreed.
The Minutes of the meeting dated 30 September 2014 was adopted with amendments.
The Chairperson asked if there were any matters arising out of the Minutes.
Dr M Motshekga (ANC) said paragraph 5.2.2 recorded that the opposition parties walked out as a delaying tactic to await the outcome of the judgment before the Western Cape High Court on the case the DA brought to have the appointment of Hlaudi Motsoeneng as the SABC Chief Operations Officer, reviewed. That judgment had been handed down and he asked if the Chairperson had been informed by the opposition parties of any other reason for not attending this meeting.
The Chairperson confirmed that no communication had been received.
Ms Kubayi said there had been a difference in viewpoints by members of the ANC and opposition parties on the Public Protector’s remedial recommendations and whether those recommendations were binding and therefore enforceable. She asked if she could read from the judgment.
The Chairperson said it should be discussed further down in the agenda. It was important, because during the meeting prior to the walk-out, a request had been made for a legal opinion.
Ms Dlakude said small opposition parties were represented by two Members in this Committee. Last Thursday some members of those parties raised the concern that those two Members were not mandated to walk out of the meeting. It was raised in the House that a meeting would be convened to nominate two alternative representatives to represent the small opposition parties in the meeting. She asked if there had been any indication given that other representatives had been nominated.
The Chairperson said he did not know if such a meeting had taken place and whether an agreement had been reached among the opposition parties.
Mr F Beukman (ANC) referred to 5.3 in the minutes which stated that no witness would be called because all the reports submitted were sufficient. It was one of the issues raised by opposition parties as a so-called ‘deficiency’ in the proceedings. It was important for the Committee to take note of precedence and on two previous occasions, in 2001 and 2004, reports from the Public Protector were handled in Parliament. In 2004 the report was discussed as presented without calling any witnesses. That report also stated that the various reports submitted were also considered and it should be noted going forward that it was parliamentary procedure in terms of precedence.
The Chairperson asked what exactly the 2004 report was about.
Mr Beukman said it was a Special Report on an investigation on a complaint by the then Deputy President against the National Director of Public Prosecutions under the National Prosecuting Authority (NPA).
Dr Motshekga said precedence had the same force as the Rules and he supported Mr Beukman’s position.
The Chairperson said that although precedence was important in terms of the work of the Committee, each and every Committee of Parliament determined its own procedure. The issue of precedence would be considered towards the end of the Report.
Mr Beukman said the initial point should be made also in terms of precedence that the Committee did not just accept recommendations from institutions and the reports were carefully considered.
Ms L Maseko (ANC) agreed and said even decision-making in Parliament had historically referred to precedence to come to a conclusion.
Ms Dlakude said the Committee, in terms of the Rules of Parliament, was allowed to determine its own programmes. It did not mean that witness would be called every time and no new enquiry was being opened. Investigations had been done and this Committee chose to stick to its mandate to consider all reports before the Committee.
The Committee proceeded to consider the Minutes dated 9 October 2014 which was adopted without amendments.
Issues to be clarified by Members
The Chairperson gave Members an opportunity to raise and discuss issues to be clarified before the presentation of the draft Committee Report.
Ms Kubayi said she raised the fact that only a court of law would be able to determine whether the remedial recommendations of the Public Protector were binding and enforceable. There had been a court judgment and whether it would be challenged or not, it should be reflected on because it had implications for the work of the Committee. Specifically, because the court judgment stated that the Public Protector’s remedial actions were neither enforceable nor binding, but institutions of government could not ignore the report. She quoted from the judgment where it said that ‘the Constitution has said that the Office of the Public Protector was modeled on the institutions of the ombuds’ and the ‘Public Protector’s independence was subject only to the Constitution and the law’. The opposition had been hammering on the fact that the Public Protector’s remedial actions were enforceable and binding. It should also be reflected on whether the Public Protector’s Report had been ignored. The judgment went further and clarified that if the remedial actions of the Public Protector were binding and enforceable, it would have said so in the Constitution.
Dr Motshekga said there were two contending interpretations of the Constitution and the Public Protector Act. The Public Protector advocated the fact that her remedial actions were binding and enforceable. That view led to the view by COPE that the meetings could not and should not continue because there was a constitutional issue to be settled and that there was a need for legal advice. The judgment had been handed down and it should be evident, based on the fact that this Committee had been established before the outcome of the court case, there had never been any intention to ignore the proposed remedial actions. The judgment clearly stated that if the Constitution envisaged that the proposed remedial actions of the Public Protector should be binding it would have said so in the Constitution and neither did the Public Protector Act. The letters written by the Public Protector to the President demanding compliance were informed by her wrong interpretation of the Constitution and the Act. That wrong interpretation also led the opposition parties to launch a ‘pay back’ campaign. The court had settled the case and the ‘pay back’ campaign had collapsed and the letters written had lost validity. The judiciary of this country guided this matter and the process could now move forward without any confusion.
Ms B Ngcobo (ANC) said the Office of the Public Protector was one of the Chapter 9 institutions and was mandated by a specific Act. The Public Protector Act did not put the Office of the Public Protector above other Chapter 9 institutions. Chapter 9 institutions investigated and submitted reports on those investigations to Parliament so that Parliament could do its work.
Ms L Maseko (ANC) said Chapter 9 institutions were established as institutions to support constitutional democracy and were accountable to Parliament.
Ms D Dlakude (ANC) said it was wrong from the onset for opposition parties to have believed that the Public Protector’s Report was superior to all other reports. The SIU was established through an act of Parliament with specific responsibilities. The Inter-Ministerial Task Team was another arm of the State which should be respected. The Joint Standing Committee on Intelligence (JSCI) report was also very relevant, because it was a report from a committee that was responsible for oversight over the Executive. All the reports were relevant to the Committee to do its work.
The Chairperson gave over to the Content Advisor for the presentation of the Draft Report.
Presentation of Draft Report by Committee Content Advisor
Mr Denyssen read through the introduction of the report that spoke to how the Committee was established. It addressed the report by the President that was tabled and the composition of the Committee. It also gave an overview of the process and the subsequent correspondence related to the remedial recommendations. The following documents and correspondence served as source documents for the Committee’s consideration:
- The Public Protector’s Report named ‘Secure in Comfort’
- The SIU’s final report
- The inter-ministerial report also referred to as the Security Cluster report
- The report by the JSCI on the inter-ministerial report
On 23 October 2014, the National Assembly extended the deadline for the Ad Hoc Committee to report to the House to 14 November 2014.
Mr Beukman said it was important that full dates should be uniformly added in the report, as well as the dates of the relevant reports.
The Chairperson said the Speaker also referred correspondence to the Committee at the previous meeting. One was a letter from the Public Protector, a response by the President and another letter from the President to the Public Protector.
The Content Advisor moved on and gave an overview of the meetings and deliberations of the Committee. On 29 August 2014, the Committee convened to elect a chairperson in terms of the rules. However at this meeting, due to differences of opinion on what the terms of reference of the Committee were, a chairperson was not elected. After consultation amongst all political parties, the Committee reconvened on 9 September 2014 and elected Mr C Frolick (ANC) as its chairperson. On 18 September 2014, the Committee again met to consider its work programme. The Committee convened on 25 and 26 September 2014 to consider reports before it. At the meeting dated 25 September 2014, the Members representing COPE highlighted the party’s objections to the constitutionality of the Committee. The representatives of COPE then left the meeting stating the party would follow the proceedings of the Committee, but would not participate in its work. In the subsequent meeting of 26 September 2014, Members of the Committee could not reach an agreement on the methodology to follow in performing its mandated task. The key points in the deliberations were whether any person or persons should be invited to present their reports before the Committee or whether the reports before the Committee were sufficient evidence for the purpose of the Committee. In its deliberations, the issues of contention between members of the majority party and the opposition parties were as follows:
The opposition parties held the following position:
-The report of the Public Protector was superior to all other reports
-The Public Protector did not make recommendations and her report, ‘Secure in Comfort’ stated remedial actions
-The remedial actions stated in the Public Protector’s Report, ‘Secure in Comfort’, were binding
-The Committee had to invite persons and parties mentioned in the report of the Public Protector, the inter-ministerial committee and the SIU, to appear before the Committee
-The Committee had to seek legal counsel on the status of the Public Protector’s Report and whether or not its proposed remedial actions were binding
The majority party held the following position:
-All the reports had to be dealt with in an equal manner to avoid casting aspersions on any of the government agencies or structures that dealt with the matter
-The Public Protector made recommendation and might state remedial actions
-The proposed remedial actions stated in the Public Protector’s Report were not binding
-The Committee’s deliberations should remain focused on the investigations that the Public Protector, the inter-ministerial committee and the SIU undertook
-The Committee had to consider the content of all the reports, together with their findings and recommendations
-There was not a need to call persons mentioned in the reports as witnesses as the separate investigations extensively and exhaustively extracted information from political office bearers, public servants and private service providers involved in the project
The Committee could not reach consensus in this meeting on the issue of the methodology to be followed. Members of the opposition parties withdrew their participation from the Committee and collectively walked out of the meeting. When the Committee again met on 30 September 2014 it was confirmed, that in terms of the relevant Rules, that the Members present formed a quorum. The Committee therefore proceeded with its mandated business to consider the reports before the Committee. In this meeting, it placed a specific focus on the commonalities and differences in the findings and recommendations of the mentioned source documents that served before the Committee. In focusing on this issue, the Committee also applied itself to the status, role and responsibilities of the agencies and structures that performed the investigations, including the office of the Public Protector, the SIU and briefly the JSCI and the inter-ministerial committee. In concluding the meeting of 30 September 2014, the Committee once more invited the opposition parties to return and participate in the ongoing proceedings. The Committee concluded this meeting with an instruction that a draft report should be prepared for consideration in its next meeting. On 9 October 2014, the Committee met to consider its draft report. After deliberations, the Committee support team required more time in compiling the report. At this meeting the Committee again expressed disappointment on the withdrawal of opposition parties from the deliberations. The Committee appealed for the opposition parties to complete the task it was mandated to perform. The Committee agreed that it would not cease the work due to the absence of certain Members.
Ms Kubayi said the report should be explicit in the arguments and why a particular decision was taken. She referred to page four of the draft report and said the arguments around the non-selection of the chairperson should be explained. The report also gave the impression that political parties consulted in the meeting and it was not the case. It was after consultation of the political parties’ Chief Whips that the issue was resolved. It should be reflected in the report that COPE, in terms of the Rules of Parliament, was not assigned membership to the Committee, but the Rules allowed any Member of Parliament to participate in any committee. In the meeting of 9 October 2014, the letters received by the Committee should be reflected and how the letters were dealt with. She appealed to the drafters to always reflect all the reports because the report by the JSCI was omitted in some instances. The report should state that opposition parties held the position that the Public Protector’s Report was both binding and enforceable. The President should be included in the list of people opposition parties wanted to appear before the Committee. The report should be consistently referring to either the ‘ANC’ or the ‘majority party’ throughout the document.
Ms Maseko said it had been raised before that a Member of the Committee should not be distinguished by the party they belonged to. The Content Advisor presented on 30 September 2014 and it should be specific that the ‘Content Advisor’s specific focus was on the commonalities and differences in the findings and recommendations of the mentioned source documents that served before the Committee’.
Mr Beukman said it should be amended that the majority party held the position to first assess the reports before the Committee and would thereafter consider if calling any witnesses would be necessary.
Mr Motshekga said the phrase the ‘majority party held the following positions’ gave the impression that it was predetermined positions and it was not the case. Mr M Lekota (COPE) said that there was a constitutionally issue barring the Committee from continuing its work and a legal opinion was needed. With respect to Mr Lekota, but his claim that it was a constitutional issue was unfounded and the withdrawal of the parties on that basis, was invalid. This was a multi-party democracy and some constitutional experts misled the opposition. To suggest that because the opposition had withdrawn meant that the Committee had lost its legitimacy was outrageous, especially if this view was supported by a so-called constitutional expert. It also raised the question whether the minority parties had a veto over the majority party in a multi-party democracy. If that was the case, it was contrary to the fundamental principles of a constitutional democracy. Maybe Parliament should hold lectures for some Members of the opposition who did not seem to understand the basic principles of constitutionalism.
Ms Dlakude said in the meeting of 29 August 2014 the opposition wanted the resolutions explicitly stated, because they were paranoid that the report of the Public Protector would not be considered. The opposition only wanted to consider the Public Protector’s Report and they wanted a list of witnesses to be drawn up at the onset of the Committee proceedings. These were the issues that prohibited the election of a chairperson at the meeting.
The Chairperson thanked Members for their input and said not all the detail could be included in the report, because the aim was not to transcribe the whole process. At the meeting of 25 September 2014 and the position that COPE took, it should be noted that other opposition parties were not in agreement with COPE to leave the meeting or that the meeting was unconstitutional.
Ms Dlakude said the report should be simplified so that people could download it and read and understand what went wrong with Nkandla.
The Chairperson asked the Content Advisor to continue with the presentation.
The Content Advisor said during deliberations, the Committee made the following observations:
The rural character of Nkandla affected the provision of security The unique rural conditions of the area and the geography of Nkandla had a marked influence on ensuring the security of the President. In providing security, government should make the necessary physical modifications to the particular physical and socio-economic circumstances within which the President’s private residence was situated. The President was the Commander in Chief of the armed forces and he and his dependents should be provided with health care by the South African National Defence Force (SANDF), protection by the South African Police Service (SAPS) supported by SANDF and transport by SAPS and SANDF.
Material conditions at Nkandla that influenced security upgrades (information based on the security assessment by JSCI and the Inter-ministerial task team). The President’s private residence was geographically located in a deep rural area and it was characterised by a low level of infrastructural development. Statistics showed that Nkandla rated within the top five poorest areas in KwaZulu-Natal. Roads were of low quality that influenced the need for security due to need for access roads that enabled staff who were responsible for the President’s health, protection and transport to quickly reach, and in cases of emergency, evacuate the president and his dependents. The terrain was steep and mountainous which made any form of transport difficult, especially in bad weather. Even transport by air (helicopter) had been proven to be dangerous. Health care facilities in Nkandla were too far from the President’s residence. There was a general lack of bulk water and electricity supply and communication infrastructure that negatively influenced the socio-economic conditions of the area. The municipality of Nkandla and surrounding areas had over a number of years experienced high political tension with sporadic threats and warnings of a resurgence of political violence. Rural villages were soft targets for criminals and security assessments by the Department of Police and the Department of Defence and Military Veterans concluded that Nkandla was a high-risk area.
A difficult terrain on which to construct and ensure security. The land on which the private residence had been developed, laid at a gradient of 400 to 700 which made it even more susceptible to flooding during storms. Due to this gradient all construction activities such as earthworks and landscaping had too include fortifications, buttresses and paving for proper water flow and storm water drainage. To ensure general security and a swift flow of traffic in cases of emergencies, all structures that could have slowed down traffic or that could have been used as hideaways and strategic attack positions, had to be removed and cleared. Where structures and other residences had to be removed and cleared, they had to be re-erected elsewhere, including on land that did not belong to the Zuma family, but had to be reacquired from traditional authorities.
The private expansion and improvement to the Zuma homestead. In 2008, prior to being elected as President, the Zuma family started expanding and improving the homestead. At the time of the President’s inauguration in 2009, the three houses on which work had started were at various stages of construction. The Zuma family had appointed their own architect, contractors and engineers for the project and no state funds were used to improve the homestead. In the JSCI report, the Department of Public Works (DPW) made it clear that the Department did not pay any contractors for the construction of the houses of the President.
Commonalities across the reports and within the Committee on non-compliance with relevant legislation and supply chain management policy, which led to corrupt actions and massive cost escalations. The JSCI report stated that DPW paid for the security upgrades that were based on the assessments conducted by SAPS and SANDF which amounted to R71 212 621.77. The cost for other departmental operational needs required for securing the President’s private residence, amounted to R135 208 022.51. As at December 2012, the total amount spent on the project was therefore R206 420 644.28. DPW Acting Chief Financial Officer at that time, provided evidence in the form of a works control system printout showing that R26 677 240.46 representing variation orders was added to this amount and brought the cost of the project as at December 2012 to R233 097 884.74. There was agreement across the reports on non-compliance with relevant legislation, supply chain management regulations, Treasury regulations as well as unnecessary cost escalations. The reports of the inter-ministerial task team, the Public Protector and the SIU indicated that costing escalations inflated the project costs in a corrupt manner. Having read and perused the investigative reports, there had been agreement between all political parties that the value of the existing structures and work had been grossly inflated and not worth the amount spent.
Evidence in investigative reports. The reports documented a process of ceding of control of the design, costing and procurement of services from DPW’s professional team to the private professional team of Makhanya Architects and R&G Consultants. The reports affirmed that Mr Makhanya became the principal agent of the project. The SIU further pointed out that the appointment procedure of the principal agent and the manner of procuring services by ceding control to the principal agent were evidently irregular. The SIU Report further provided evidence that the ceding of total control into the hands of the principal agent took place in combination with the removal of control of DPW’s supply chain management department. The report stated that in this capacity, Mr Makhanya acted on behalf of DPW and that he would in designing and procuring services on behalf of DPW ensure the prudent use of project funds. The Committee observed that as the principal agent, Mr Makhanya had a duty to provide regular reports to the DPW’s professional team on matters of design, the procurement of services and the costing of all parts of the project. The Committee observed that the reports referred to the DPW’s professional team in expressing its concerns, that the principal agent did not prepare and send monthly reports to the DPW professional team. The report unanimously referred to evidence collected from persons involved that the operationalisation of project by DPW constituted non-compliance with the Public Finance Management Act (PFMA), National Treasury regulations and the Department’s own supply chain management policies. The SIU Report went as far as referring to the DPW project managers as ‘flouting the supply chain management policies’ and making the rules as they went along.
Applicable legislation and policy. The Committee noted that the Public Protector’s Report held that the National Key Points (NKP) Act and its relevant schedules provided the statutory and regulatory measures along which the project had to unfold. The Committee noted that the NKP Act established that the Minister of Police signed the NKP declaration and it was done on 8 Aril 2010. The SIU expressed an argument that the upgrades were not installed in terms of the NKP Act, but in terms of the Cabinet Memorandum of 2003. The Cabinet Memorandum of 2003 prescribed that the certain steps needed to be followed when security measures were installed at the private residence of a President. It would start with a request from the President, followed by an evaluation by SAPS based on a threat analysis by the State Security Agency (SSA) of structures that the State would construct to ensure the safety of the President and his immediate dependents, including their personal property. SAPS and the SSA should formulate a proposal on appropriate measures, staff and structures to be put in place by the State. These measures should be submitted to the Interdepartmental Security Coordinating Committee for technical assessment. DPW would prepare a cost estimate based on the proposed structural security measures to be submitted to the SAPS. SAPS advised the Minister of Safety and Security on the proposed security measures and the related costs. The Minister of Safety and Security would approve and relate such measures to the President for consent. SAPS would then submit the measures as approved by the President to DPW for approval of costs. SAPS personnel and related costs would be provided and funded by SAPS. Structural additions and amendments to the property were made and thereafter maintained from the DPW budget. The security situation at the private residence of the President should from time to time be revisited by SAPS to ensure continued security assessment and threat analyses. These assessment reports might from time to time necessitate up – or downgrades or termination, depending on the dynamic security requirements of the President.
The Committee noted that only two steps as per the Cabinet Memorandum of 2003 were followed. The President did not request the security upgrades and no submission were made to the Interdepartmental Security Coordinating Committee for technical assessment. No approval by the Minister of Safety and Security on the design or costs was done. No approval of costs was done by the Minister of Public Works. The committee observed that these instances of non-compliance meant that the project was initiated and implemented without the necessary executive authority. There could therefore not be a budget assigned to the project and the expenditure could be deemed as ‘unauthorised’ as per the PFMA. The Committee observed with concern that the legal and regulatory framework along which government secured the private residences of the President was fragmented. This fragmentation existed in part due to the fact that the existing legal and regulatory framework consisted of more than one pieces of legislation that placed the responsibility on more than one department or government agency without any one coordinating the process.
Control and divisions of responsibility. The Committee observed that the legal framework that was relevant to the matter before it consisted variously of policy instruments, legislation and regulation. The Committee observed that the Cabinet Memorandum of 2003 had as its main consideration the safety of the President and it did not place any limit on the amount being spent in effecting upgrades for security purposes. The legislation that gave effect to Section 261 (1) of the Constitution was the PFMA. Importantly, the PFMA in giving effect to what the Constitution stated should be done, ensured that an important division of responsibility between the President and the administrative head of a department existed. The Executive Authority held the responsibility for matters of policy and the administrative head was responsible for implementation of the department’s budget and human resources to translate policy into concrete outcomes. The Executive Authority remained accountable to Parliament for achieving policy matters and outcomes, while the accounting officer was accountable for the manner in which he or she utilised the budget and human resources to reach those outcomes. The Committee observed that an important aspect of the PFMA maintenance in each department of government was an effective and transparent financial accountability system. In the matter before the Committee, the reports before it contained evidence that a roster system through which service providers were contracted was in fact in place and was supposed to have been applied in a uniform and transparent manner. Unfortunately these measures of control were flouted.
Systems of financial control. The Committee observed that the PFMA gave appropriate effect to Section 216 of the Constitution. It placed the responsibility on accounting officers, to not only establish, but to maintain systems of financial accountability. Accounting officers were therefore responsible for basic financial systems, internal controls, and budgets and reporting. The Committee observed that chapter 10 of the PFMA stated clearly that accounting officers faced strict disciplinary sanctions, including dismissals where they did not adhere to the prescripts of the PFMA. The Committee observed that there were instances where the Executive Authority strayed too close to the areas of the accounting officers and administrators. This led to allegations that they irregularly interfered in procurement processes. The Committee observed that the residences of families that had to be resettled for security purposes were constructed on land that was administered by the Ingonyama Trust and it was done with the necessary permission of traditional leadership. The President occupied the land through a certificate issued by the local nkosi. The Committee observed with concern that the report contained reference from security personnel that in spite of the project to secure it, the private residence of the President remained vulnerable. The Committee noted the reports of the investigative agencies and structures that served as its source documents with its findings and recommendations were not binding on any person or organ of state. The agencies and structures whose reports had been considered were of equal importance to Parliament and each report’s content had been considered in equal measure. The Committee’s decision to give effect to its mandate with the focus on the investigative reports on agencies and structures were consistent with the manner in which Parliament previously dealt with the Public Protector’s Report.
Mr Denyssen said the steps followed by the President to address this matter were missing from the report and he presented a document that illustrated the steps taken by the President that could be included in the report.
The Chairperson asked that copies of the document be circulated to Members and he asked Members to add any observations before the Committee moved on to the Recommendation.
Mr Motshekga said when most of these laws were crafted it was not foreseen that South Africa would have two Presidents that came from Qunu and Nkandla respectively. It was difficult for most South Africans to even contextualise rural conditions. It was not inconceivable that the effecting of security measures in such a rural setting enhanced living conditions and in this case be labeled as ‘unduly benefiting’ from the security upgrades.
Ms Kubayi asked if the sequence of the report could not be amended so that it started with the legislative framework and the analysis of commonalities and differences. The state of Nkandla could then follow. She disagreed with the report where it stated that ‘The JSCI report stated that DPW paid for the security upgrades that were based on the assessments conducted by SAPS and SANDF which amounted to R71 212 621.77’. It was stated in the Public Protector’s Report that DPW came up with that amount through their own assessment without SAPS and SANDF. DPW, SAPS and SANDF never had a coordinated work programme. The ceding of control to Makhanya Architects should be clarified, because all the investigative reports were clear that there was no proper handover process and it spoke to a dereliction of responsibilities. In terms of the Cabinet Memorandum of 2003, she stated that perhaps the drafters should first lists the steps that were taken and list the steps that were disregarded. She also asked that the drafters properly sequenced the numbering.
Ms Dlakude said it should be added to the observations that 15 contractors were used and those contractors did not have the necessary documentation in place such as tax clearance certificates or the Construction Industry Development Board (CIDB) grading certificate. The Committee was not sure if the work done by these contractors were up to scratch. An expert should be able to assess the work done by these contractors. There was no monitoring or oversight done on the implementation of this project. It meant that some officials and the relevant authorities neglected to do their work. Since the project was not budgeted for, it led to an escalation of costs and the approval of variation orders.
Mr Beukman said perhaps the report should focus a little more on the fact that the safety of the President was of national importance and also elaborate more on the land that was administered by the Ingonyama Trust.
Ms Maseko asked at what point the Committee would consider the report of the President to the Speaker.
Ms Ngcobo said it should be clarified what the status of Nkandla was before the project was initiated, the work that had already been done by the Zuma family and the work done, if any, when the President was first a MEC and then the Deputy Minister.
Ms Dlakude said all the reports were in agreement with what the President told Members of Parliament in the House about the fact that no State funds were used on Nkandla prior to the project. It should also be noted that at no time did the President interfere with the implementation of security upgrades at Nkandla.
Findings and recommendations of the Committee
Ms Kubayi said there was flouting of the laws and non-adherence to the legislative framework by the officials who were tasked with the responsibility. There was a dereliction of duties by the accounting officers by not adhering to the PFMA guidelines. The Executive Authority neglected their duties especially in terms of oversight. There was a sense that at some point in the project, some of the things were done deliberately. People knew the laws under which they were operating, but it was simply disregarded. The President did not ask for the upgrades. The process of appointment of Mr Makhanya as the principal agent in the project was illegally done and the handover process was also not properly done. There was no coordination between the relevant departments. It should also be noted that there was no legislation in place that promoted such coordination and this was a gap the committee should make definite pronouncements on.
Mr Beukman said he recommended a review of the Cabinet Memorandum of 2003 and the NKP Act. There should be provision made in the Medium Term Expenditure Framework (MTEF) for a budget item for future presidents as well. There should be a level of expertise built into the review of the Cabinet Memorandum of 2003. An expert would be able to pronounce whether security upgrades were up to standard. There should perhaps be a permanent panel responsible for the vetting of the service providers.
Ms Dlakude said there was no proper assessment done on the security upgrades. Certain Ministers were mentioned in all the reports, suggesting that they were too close to the project and allegations of ‘political interference’ had been made.
Mr Motshekga said without the necessary expert, it could not be said that the President unduly benefited due to the enhancement of non-security features. It should be noted that those that appointed Makhanya Architects did so based on their own discretion. There had been gross negligence on the part of the officials and the Executive Authority.
Ms Kubayi said this type of project needed to be incorporated into an Act or regulations where limits were set. None of the reports before the Committee found that the President violated the Executive Members’ Ethics Code. The Public Protector’s Report stated that the work done at Nkandla did not warrant the expenditure and SIU Report also stated that there was a lack of adequate security features. There should be an independent assessment done by the ‘expert’ and a report should be tabled in Parliament. Steps needed to be taken so that this did not happen again, but those who were found to have been flouting the law, needed to be held accountable.
Ms Dlakude said the Minister of Police, after doing the necessary assessments with security experts, should report to Parliament on progress made. In future, the implementation of a prestige project should be properly monitored to avoid looting of the State. An expert on security features should also co-manage the implementation of such a project.
Ms Ngcobo commented on the Executive Authority involvement and said at some point there seemed to have been an over involvement in the project and then it seemed they were ‘nowhere to be found’.
Dr Motshekga said a private home of the President qualified to be secured by the State. It was for an expert to assess the features before any comment should be made about ‘unduly benefiting’.
Ms Maseko said in the review of the Cabinet Memorandum of 2003 there should be a mechanism put in place to see if assessment had taken place and the outcomes of the assessment.
The Chairperson reviewed the input by Mr Denyssen on the role of the President in this matter. The Inter-ministerial Task Team was set up by the President to investigate the matter. After the task team reported, the President issued Proclamation 59 of 2013 to investigate the matter with special powers. The President did respond by the Public Protector’s 14-day deadline by writing to Parliament and informing the Speaker that he was awaiting the outcome of the SIU Report and would thereafter respond. Within the 14 day deadline the President requested an update from the SIU to assist him with his response. A second letter was written to Parliament and it was the President’s full response on the matter. Usually reports by the SIU on matters of investigation took log. In this instance, the SIU took a much shorter time to report and it was indicative on how seriously the matter was being considered.
The Chairperson thanked the Committee and he asked Mr Denyssen to have the amendments to the draft Committee Report ready by Wednesday, 5 November 2014.
The meeting was adjourned.
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