Committee Report on President's Submission in response to Public Protector's Report

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Meeting Summary

The Committee met to consider its draft report to the National Assembly, particularly the composition of its observations and findings, based on its consideration of the various reports relating to the security upgrades at the President’s private residence at Nkandla.

Before going into the actual business on the agenda, the Chairperson noted that he had received correspondence from Mr M Maimane (DA), requesting a copy of the draft report as it stood at the previous meeting. He had instructed the Committee staff to direct a copy to him. An ANC Member said she felt the only reason a draft report could be requested was because the party wished to participate in the happenings of the Committee, but she was aware that the Opposition had indicated that it would release a minority report. She warned that the Committee should not be taken for granted and that if the Opposition wished to engage on the report, the Committee was the appropriate place to do so.

Technical changes for consistency and proper references to the source document were mainly effected to the observations by the Committee. Members generally commented that the Committee should observe that what had occurred at Nkandla had been an instance of serious maladministration, opening the door for large scale corruption.

The Committee received an opinion from a Senior Parliamentary Legal Advisor on the propriety of the Committee making a finding of undue enrichment against the President, based on the Public Protector’s report, and further on how the quantum of a successful claim in unjustified enrichment was calculated. The four basic elements to a claim of undue enrichment were explained, and it was pointed out that the crux of the problem was that it would be difficult for the state, as plaintiff, to discharge its onus of proving that some of the upgrades were indeed non-security upgrades, using the Public Protector’s report. This was because the Public Protector was not a security expert and with the absence of compliance with the prescripts of the Cabinet Memorandum, it would be difficult to prove that some of the upgrades were indeed non-security upgrades. Further, in light of the cost escalations which were at play at Nkandla, it was uncertain how much the property owner would in fact be enriched. With the lesser amount between the existing extent of enrichment and impoverishment being the quantum, it was uncertain what the prospective amount of the claim would be.

The findings of the Committee were generally left intact, aside from a Member’s instance that the findings be properly referenced to the relevant report and that all the impugned government departments and agencies responsible for carrying out the security upgrades should be enumerated. There was also a general criticism that the headings of the various findings did not logically correlate with the contents which followed, and that the order of the findings could be improved by beginning with the non-compliance by the state entities, and ending with the steps taken by the President.

The meeting concluded with it being decided that it would sit the following Tuesday to determine its recommendations to the National Assembly, in anticipation of the report being presented to the House the following Friday.

Meeting report

The Chairperson said he had received two apologies, one from Ms L Maseko (ANC), who is on study leave, and from Dr P Mulder (FF+), who submitted a verbal apology to the Committee. He reiterated that as per standard operations, all Members who had chosen not to participate in the meeting had been informed of the meetings, and had been listed on the Z-list, which is a public document.

The draft agenda basically consisted of a consideration of the draft minutes, followed by the draft report of the Committee. He wanted to add a piece of correspondence he had received, after the draft minutes. He asked for a mover for the amended agenda.

Mr F Beukman (ANC) proposed adoption of the agenda, as amended, and Ms B Ngcobo(ANC) seconded.

The Chairperson then went on to a consideration of the minutes of 30 October 2014, page by page, asking Members to indicate any corrections. With no corrections being raised, he asked for a mover for adoption of the minutes as a true reflection of the meeting.

Ms Ngcobo moved the adoption, and this was seconded by Ms D Dlakude (ANC)

Correspondence

The Chairperson indicated that Mr M Maimane (DA) had requested a copy of the draft report under consideration, and had indicated that although his party had withdrawn, it still viewed itself as lawful Members of the Committee. He indicated that he had instructed the Committee staff to send a copy to Mr Maimane and remind him that all the meetings were open to the public and the media, and the report was being dealt with as a public document.

Ms M Kubayi (ANC) appreciated the correspondence being brought to the attention of the Committee. She was, however, concerned about the manner in which Opposition parties were conducting themselves in this Parliament. Her understanding was that any Member of Parliament was entitled to be part of a Committee, even where their membership was not in terms of the party representation system of Parliament. Her problem was that Opposition Members seemed to want to run things parallel to the procedures of Parliament. She was confused as to why the Opposition wanted the report, because this would generally be to participate better in taking the draft report into its final stage. She felt that the Opposition was not helping to support democracy. She was aware that the Opposition had indicated at a media briefing that it intended drafting a minority report and not recognising the work done by the Committee. She said that the Members of the Committee had been working day in and day out -- to exhaustion -- because they understood the importance of the work being done. If Mr Maimane wanted to participate in the Committee, he must return, because the Members would not be engaged in the streets or through the media. She appreciated the Chairperson bringing the correspondence to the attention of the Committee, but warned that people must not take the Committee for granted.

The Chairperson said that he did not want to open a debate on the matter, and indicated to the staff that a copy of the report considered at the last meeting be sent to Mr Maimane.

Consideration of the Draft Report

Observations of the Committee

The Chairperson said it would be remembered that a number of proposals had been made by Members relating to the observations of the Committee, and changes had been made to the report. Therefore a short presentation would be made by the technical team drafting the report, focusing on the areas where the enhancement took place, based on contributions by the Members.

Mr Shuaib Denyssen, Content Advisor to the Committee, said that one of the first areas which had to be worked on was page 8, under observations, and it carries on to page 9, covering points one to seven. He noted that this version of the draft had been footnoted, on instruction from the Chairperson indicating references to the various reports. The relevant section is prefaced with a heading: “The matter of precedence, status of the Public Protector’s report, remedial actions and High Court, Western Cape division judgement regarding the Public Protector as ombudsman”.

  1. The Committee noted that when the Public Protector had submitted reports to the National Assembly in 2001 (Public Protector Report 13 of 2001) and 2004 (Public Protector Special Report date May 2004), Parliament established ad hoc committees to deal with the matters of investigation;
  2. The Committee noted that in both cases, in processing its work, both committees did not call witnesses, but instead used the contents of the reports and communications serving before it for evidence. Only where absolute need arose, to gather clarity in matters, did the ad hoc committees enter into written communication with the office of the Public Protector. The Committee applied the principle of precedent (stare decisis) and focused on the contents of the investigative reports’ source documents, rather than initiating its own in depth investigation into the matter.

Mr Beukman said that it had been mentioned specifically in the previous meeting that the 2004 committee was where no witnesses had been called, and not the 2001 report.

The Chairperson asked if Members agreed that points one and two should be amended accordingly. He received positive indications and asked Mr Denyssen to proceed.

  1. The Committee further noted that the outcome in the High Court of South Africa in the matter between the Democratic Alliance and South African Broadcasting Corporation (12497/2014) was of relevance to the matter which it was mandated to investigate.
  2. This judgement stressed the importance of the Public Protector as one of six institutions established by the Constitution to strengthen democracy through their independence, impartiality and the exercise of their powers without fear, favour or prejudice.

The Chairperson said that the Committee was not mandated to investigate, but rather to consider reports.

  1. The judgement provided clarity with regard to findings and remedial actions of the office of the public protector as it is stated that “the powers and functions of the Public Protector are not adjudicative” and that “a finding of the Public Protector is not binding on persons and organs of state”. This comes from page 32.51 of the judgement and is made in reference to section 182 (1) of the Constitution.
  2. The Committee observed that the above mentioned judgement further stated that the power to take remedial action, as described in section 182(1) of the Constitution, “means no more than that the Public Protector may take steps to redress improper or prejudicial conduct, but that it is not to say that the findings are binding and enforceable, or that the institution is ineffective without such powers”.
  3. The Committee further noted that the investigative reports produced by the Inter-Ministerial Task Team, Joint Standing Committee on Intelligence and Special Investigating Unit all contained findings and recommendations, but that specifically the latter legislatively could institute punitive legal action to ensure redress and remedial action.

The Chairperson asked for comment from the Members.

Dr M Motshekga (ANC) said that the situation was well captured, but on paragraph 4 he wanted to clarify that the Constitution established these institutions “not to strengthen democracy through independence and impartiality, but it gives them the power to investigate maladministration, prejudice as listed in the Constitution”. However, independence and impartiality were very important, as they gave these institutions the ability to perform their functions without fear, favour or prejudice. He would therefore like the formulation of the sentence reconsidered.

Mr Beukman, on paragraph one, said for completeness sake that in the third line, specific reference should be made to Public Protector’s report number 26.

The Chairperson said he had specifically requested the legal advisor to the Committee to prepare an interpretation of this judgement, because there was a perception that the interpretation given of what the powers of the Public Protector were in terms of the Constitution and the Public Protector’s Act, was that of the Committee. He noted that the Western Cape High Court was not the first to have pronounced around this topic.

Dr Motshekga said that there had been a Supreme Court of Appeal (SCA) decision which stated that the Public Protector fell within the category of ombudsperson, but in the South African case the Public Protector has more powers, in the sense that the Public Protector can proactively investigate matters. This did not confer adjudicative powers on to the office, nor did it give the Public Protector the powers of a court of law. Therefore, he thought that the judgement of the Western Cape High Court and the interpretation thereof were correct. However, it must be understood in full, because the court did not only state that the Public Protector’s powers were not binding, but went on to say that the remedial action could not be ignored. Therefore, if one did not agree with the remedial action, “one must have cogent and rational reasons for doing so”. The court therefore required a person to engage and have reasons for disputing. In conclusion, he said that this was what was happening through the process of the ad hoc committee, because once the report had reached Parliament, it had decided to appoint the Committee to engage with the findings.

The Chairperson requested that the technical team include the SCA judgement into the observations and also to reflect the amendments of the Members. He noted that the potential for redrafting was exactly what gave a draft report its status, as anyone wishing to quote from a draft report ran the risk of being contradicted at a later stage. He then asked the Content Advisor to move onto the next area where major changes had been made.

Mr Denyssen said that it had been a major undertaking to ensure that references were checked for their veracity, because some were found to be fairly weak, and where a statement was made the relevant report must speak to the point made. He said that the next area where major changes had been made was on page 16, which referred to the “Head of Cabinet, President and Cabinet acted with urgency to deal with the serious allegations related to the project to secure his private residence at Nkandla”.

Ms Dlakude said that the sub-heading should read the “The President acted with urgency to deal with the serious allegations related to the project to secure his private residence at Nkandla”

The Chairperson agreed, and said that the report referred to the Committee in terms of the House resolution was by the President, not one by Cabinet.

Mr Denyssen said that this section started on page 16 and ended at the top of page 17 with paragraph 45.6, and reads as follows:

42. Following sustained media allegations that the President used state funds to build his private residence at Nkandla, under leadership of the President, as head of Cabinet, a number of consistent actions indicate the serious commitment by government to deal with the matter in a transparent manner.

The Chairperson said that an amendment should be effected to remove “serious commitment”, because this is an opinion.

Mr Denyssen replied that the section would be amended.

The Chairperson said that urgency should not be used in the heading, because this was an observation and the Committee had to guard against introducing impetus to something that an assessment still had to be made on.

43. These actions by the President as head of the national executive (section 83 of the Constitution), took place in addition to the investigation that the Public Protector undertook and reported on in Secure in Comfort, dated 19 March.

44. Each of the investigations resulted in reports which had findings and remedial actions that cannot be ignored.

45. The reports can be recorded chronologically as follows:

Mr Denyssen noted, before continuing into the list, that some of the communications by the President and the Speaker of the National Assembly are not recorded and the technical team believes they should be included.

45.1 On 5 October 2012, the Minister of Public Works announced that an investigation into the allegations would take place by a specially convened security cluster task team.

45.2 On 20 December 2013, the President signed proclamation R59 of 2013 for the SIU to investigate the matter and, where relevant, institute civil action to recover any state funds which may have been lost due to corrupt activities.

45.3 The Inter-ministerial task team reported on its investigation on 27 January 2013.

45.4 The Public Protector’s report Secure in Comfort was made public on 19 March 2014. It was submitted to Parliament by the President, adhering to Chapter 9 of the Constitution, who noted the report of the Public Protector and its findings and recommendations and responded to a letter to the Speaker of Parliament on 2 April 2014, published in the Announcement, Tablings and Committee Reports document on 2 April, on page 2 418.

Ms Ngcobo said that the Speaker was that of the National Assembly.

Mr Denyssen said that this is one of the errors which had being worked on previously. He had indicated that the word Parliament may be used here, because this Committee did not fall under the National Council of Provinces.

The Chairperson said that the Committee must be consistent, and reference should be made to the National Assembly.

45.5 The President in this letter stated that he had requested the SIU to provide him with a provisional report of his report, as soon as possible, in order to assist him in providing Parliament with a further report.

Mr Beukman noted an inconsistency between page 2 and paragraph 45. Page 2 stated that the inter-ministerial task team report would also be referred to as the sectoral cluster report, while 45.1 referred to the specially convened security cluster task team. He therefore suggested that 45.1 be changed to the wording on page 2.

45.6 On 14 August 2014, the President provided a further report to Parliament on the further efforts he and the government as a collective had made and were busy making to ensure that whatever state funds might have been lost could be identified and recovered; and that persons who were implicated through evidence were brought to book.

Mr Denyssen reiterated that there were further communications from the President which should be included from sub-paragraphs 45.6 onwards, and these would be included.

The Chairperson asked if there were any other areas of substantial change.

Mr Denyssen said that on page 18, the comparative findings across reports in the previous report had been left blank. It was decided that this was improper, and the words not applicable had been inserted. He then suggested moving on to the findings on page 23.

The Chairperson asked, before moving on to the findings, whether any of the Members had identified an area under ‘observations’ which, upon reflection, required enhancement.

Ms Kubayi said that she hoped technical changes, particularly regarding consistencies, would be dealt with as the technical team revised the report. She cited page 13, ‘Material conditions at Nkandla which influenced security upgrades,’ which did not make clear the issues which were to follow. She wanted the sequencing of the report to be logical, with headings reflecting the contents to follow.

Mr Beukman said that on page 22, paragraph 6.2 reads: “The Committee observed that only two of the above steps, as set out in the Cabinet Memorandum of 2003, were followed”. He felt it material to note which steps were taken. Further, all the steps which were not followed should be detailed, indicating the executive members who were responsible for these steps.

Ms Dlakude commented generally on the observations, saying that the manner in which the security upgrades at the Presidents home were handled was a serious concern to the Committee, especially the way it was implemented. The people who were responsible for monitoring implementation had decided not to do what they were supposed to do. She was not sure whether the President continued to be secure, in light of the manner in which his home is shown on the media. Secondly, using contractors without the requisite documentation was a serious concern for the Committee. She believed that the work was not properly done and a loophole had been opened for the looting of state funds. The same applied to the way in which the consultants and contractors had escalated the costs of the project. When the Committee makes its recommendations, it must be said that preventative measures need to be put in place for the future, as these would not be the first or the last security upgrades to take place for executive members.

Ms Kubayi spoke to page 17, paragraph 45.6, and said that thorough referencing should be done, indicating the steps taken. This was important, as the observations needed to be substantiated and a reader should be capable of determining their source.

Dr Motshekga wanted to amplify the point of Ms Dlakude, saying that securing the residence of the President was a constitutional matter. The Cabinet Memorandum was the source of authority in giving effect to this constitutional matter. These prescripts must be looked at for negligence in compliance and Ms Dlakude was correct in saying that it could not be known whether the President was indeed properly secured.

The Chairperson said that Dr Motshekga was moving into the terrain of findings, rather than observations.

Ms Ngcobo asked for a legal advisor to explain the duties of the executive members and the duties of the administrative members, particularly what the President’s responsibilities were around the project and its finances.

The Chairperson said that part of the report dealt with the accountability of the executive authorities of the Department and relevant accounting officers. As he was unsure whether the legal advisor would be able to explain this, he asked the content advisor to indicate which paragraphs reflected this information.

Mr Denyssen said that this was on page 10, and the heading was: ‘Division of responsibility under the Public Finance Management Act.’ Page 10.13 referred to the political head and in the Act, this is referred to as the executive authority. The executive authority holds responsibility for policy matters, while the administrative head or accounting officer is responsible for the use of the department’s funds and human resources to transform the policy into concrete outcomes. Basically this means that the administration would take a policy and turn these into programmes which consist of projects, to which money and capacitated staff are dedicated.

Legal Opinion on Undue Enrichment

The Chairperson said he had asked for Adv Ntuthuzelo Varana to deal with the concept of undue benefit, which arises in two reports, and how these reports arrived at these points. He had engaged Adv Vanara to develop a legal opinion on whether the Committee could make a finding of undue enrichment and the processes which had led to these findings in the reports.

Adv Vanara said that as Members did not have copies of the reports, he would make a detailed presentation of it for them to get the full benefit of his submissions and the legal authorities used for substantiation.

Ms Kubayi asked if the Members could be provided with copies of the document.

Adv Vanara spoke to page 2 of the opinion, which confirmed the instructions from the Chairperson to advise whether, based on the Public Protector’s report, a finding of undue enrichment could be made in respect of the security upgrades at the President’s private residence. Page 3 gave further background, indicating that the Public Protector’s report made findings about upgrades at Nkandla in the report entitled ‘Secure in Comfort.’ This report indicated the Public Protector’s view that some of the upgrades were not security upgrades, while others were. The Committee wanted to know whether, based on the Public Protector’s findings, a successful civil claim of undue enrichment could be founded. Further, how in law the quantum of an undue enrichment claim was determined. This had been asked specifically in light of the cost escalations identified in all reports.

He then turned to the bases for civil claims in South Africa, saying that the first was breach of contract, secondly a delictual claim, and thirdly a claim of undue enrichment. The first two were based on fault liability, while the last was a no fault claim. Therefore, the plaintiff did not have to prove negligence or intent on the part of the defendant, in order to found a successful claim. He said that of all four reports, only the Public Protector’s had made a finding that payment should be made in respect of the non-security upgrades. He emphasised that the finding that payment should be made in the Public Protector’s report, was not based on undue enrichment, but rather on the effects of the National Key Points Act.

He moved on to the merits of the claim, and what needed to be proven to found a successful undue enrichment claim. There were four requirements: the defendant must have been enriched, the plaintiff must be impoverished, the defendant’s enrichment must have been at the plaintiff’s expense and lastly, the enrichment must be unjustified. He cited two SCA judgments as authority for these requirements: Kudu Granite Operations Pty (Ltd) v Catering Ltd, at paragraph 17, and McCarthy Retails Pty (Ltd) v Short Distance Carriers CC, at paragraph 2. He said Kudu Granite was the authority for the onus being on the plaintiff to prove these four requirements on a balance of probabilities and then the defendant would bear the onus for proving that the enrichment was justified or not, to the extent claimed. He then quoted Malan JA in African Diamond Exporters Pty (Ltd) v Barclays Bank Ltd who, at page 713, said “I agree with the view stated by Prof De Vos that where a plaintiff has proven an over payment recoverable by the condictio indebiti, the onus lies on the defendant to show that he was not enriched at all, or only by part of what was received”.

In the current case, if there were to be a claim for undue enrichment, the state would have to be the plaintiff bearing the onus to prove all the elements. Here the basis would have to rest on whether some of the enhancements could be classified as non-security enhancements. Whether or not this were the case, would depend on the facts of the case. He considered what the Public Protector regarded as non-security upgrades and her reasons therefore. These were found in paragraph 10.3.1 of its report, and he quoted: “a number of measures, including buildings and other items constructed and installed by the DPW at the President’s private residence, went beyond what was reasonably required for his security”. Further, 10.3.2 reads: “the measures that should have never been implemented, as they are neither provided for in the regulatory instruments, particularly the Cabinet policy of 2003, the minimum physical security standards and sub-security evaluation reports, nor reasonable as the most cost effective way to meet incidental security needs. They include the construction inside the President’s residence, such as the visitor’s centre, the cattle kraal, the chicken run, the swimming pool, an amphitheatre/marquee area, relocation of neighbours”. He moved on to 10.3.3, which deals with “measures which were not expressly provided for, but which could have been discretionally implemented in a manner which benefits the broader community. These include the helipad, the private clinic… the construction within state occupied land of permanent, expensive one-room sub-staff quarters that could have been located at a centralised police station”. He referred the Committee to page 42 of the Public Protector’s report, where one could get an idea of how the Public Protector arrived at what, in her opinion, were non-security upgrades. Paragraph one reads: “all I did here was to ascertain from the relevant state actors what the proximity of such non-listed measures was to the list in the minimum security measures and the list prepared in pursuit of the list of security evaluations”. What was indicated here was that the South African Police Service (SAPS) prepared a list of features which, according to the Public Protector, was what the security experts term ‘security features.’ Anything which was not on this list and which was not satisfactorily explained to not be a security feature, would lead to the conclusion that it was not a security feature.

If the Committee were to pursue a claim of unjustified enrichment, Adv Thuli Madonsela would have to be called as a witness, as the author of the document. In Adv Vanara’s view, what constituted security upgrades should properly be determined by security experts. He quoted Gentiruco A.G. v Firestone Pty (Ltd), a 1978 Appellate Division case, at page 616: “the true and practical test of the admissibility of a skilled witness is whether or not the court can receive appreciable help from that witness on a particular issue”. In Seyisi v the State, an unreported case of the SCA in 2012, Tshiqi JA said the following regarding expert witnesses: “expert witnesses are required in principle to support their opinions with valid reasons, but no hard and fast rules can be laid down. Much will depend on the nature of the issue involved and the presence or absence of an attack on the opinion of the expert. Where the expert personally conducted experiments, it is easier for the court to follow the evidence, accept it and rely on it in deciding the issue”.

It was common cause that the Public Protector was not a security expert, and it was apparent that the Cabinet Memorandum of 2003 had outlined ten steps to be followed when security upgrades were to be installed at the residence of a sitting or former president or deputy president. What was imperative about these tens steps was that all the reports concurred that most of the steps were not complied with and even those that were, were not complied with fully. The second step, in particular, deals with the needs analysis by the SAPS and State Security Agency (SSA), but only the SAPS had made the analysis.

The challenge facing the Committee was non-compliance with the Cabinet Memorandum. The problem was that the persons making the calls on the project were not security experts and unable to determine what would qualify as a security or non-security upgrade. On the basis of the Public Protector’s finding, it was his submission that without a security expert’s advice and compliance with the ten steps outlined in the Cabinet Memorandum, it would be very difficult for the state to discharge its onus. Therefore, it was premature for the Committee to make a finding of undue enrichment. He recommended that the Committee should perhaps refer the matter back to the Cabinet to have appropriate security experts determine what truly constituted security upgrades.

On the determination of the quantum of undue enrichment claims, he made reference to the Kudu Granite case, which outlined how this would be determined. The SCA stated that the quantum was the lesser amount of either the amount by which the defendant was enriched, or the amount by which the plaintiff was impoverished. Turning to the current case, the state had spent in excess of R216 million, and what the state had lost would be the portion of this amount which had been spent on non-security upgrades. Conversely, if the benefiting party had in fact only received upgrades to the value of R10, then this would be the quantum of the claim. Therefore, the issue of cost escalation was a determining factor in the quantum of the potential claim.

The Chairperson invited comment by the Committee.

Ms Kubayi said that the legal opinion was helpful and would be useful in the recommendations and findings of the Committee. She also noted that there was a paragraph of the opinion which was in Afrikaans, and would like this to be explained.

The Chairperson thanked Adv Vanara for his contribution and asked him to be present while the Committee discussed the findings.

The Committee’s Findings

The Chairperson noted that the headings would be more useful if they were better correlated with the following content, lest the document be open to misinterpretation. The first finding (4.1) dealt with the steps taken by the President since the security upgrades at Nkandla had become topical and investigations had started. It basically referred to the earlier observations of the Committee. However, he could not clearly see the finding in the text. He therefore asked for it to be made more explicit.

Ms Kubayi said that she had raised this in the previous meeting. The findings ought to reflect the non-compliance with the procedure first, and then go into the actions taken by the President. Going into the first finding, she said that it was not the evidence, but the reports before the Committee, and this should be properly reflected in the paragraph. She echoed the Chairperson’s concerns about the absence of a clear finding. She suggested it should first be indicated that the Minister of Public Works had announced the investigation and the steps taken, and so forth. She wanted reference to be made to the relevant documents, because this would help ensure that the Committee had a source for its findings. In light of the heading, the President’s actions must be listed and the finding of sufficiency, or not, be demonstrated through such things as the signing of a proclamation for the SIU, and the correspondence with the Committee.

The Chairperson agreed that paragraph 4.1 should come towards the end, because this summarised what was contained therein.

4.2 Security cluster investigation report states that the President did not request the security upgrades at his Nkandla residence.

Ms Kubayi said that the referencing again was incorrect, because this was spoken of in the SIU, the Public Protector and Inter-Ministerial Task team report. Therefore, the sentence was incorrect and needs to be corrected.

4.3 “The security upgrades to the President’s private residence should have started with a request by the President. The Public Protector, on page 389 of her report and the SIU Report at pages 68, 69 and 189, reported that the Cabinet Memorandum states that the process of securing the President’s private residence should be started by a request from the President, and this did not happen.”

The Chairperson said that even here, clear reference needed to be made to the relevant report. He asked for the finding to be clarified, to ensure that there was no room for an allegation of manufacturing findings. He said this point also needed to be clarified in order to show what had kick-started the process. In the Public Protector’s report, a normative process was spoken of, and this was the correct reference.

Ms Kubayi said that she had difficulty with this paragraph, because the Committee had found that there was no legal framework which clearly governed the process. As both the National Key Points Act (NKPA) and Cabinet Memorandum were purportedly used as empowering documents, the finding should reflect that no legal framework gave clear authority for the carrying out of the work, and speak to the fragmented legislation. This was necessary for the future plans to have comprehensive legislation to ensure that this sort of confusion did not occur again.

Mr Denyssen said that this was captured on page 26, from 4.10 onwards.

4.4 “The reports contain no evidence that the President in any manner influenced the executive authority or officials to act in ways which suggested that they should have acted in corrupt ways while securing the private residence at Nkandla”.

Ms Kubayi said that the referencing again was a problem, because the finding was drawn from the reports and if the reference was not properly made, the Committee ran the risk of making unsubstantiated findings.

4.5 “Introduction of Mr Makhanya to the DPW team, was done because there were already plans in place for construction. New plans were put in place, but there was nothing irregular in introducing the teams, as the introduction of Mr Makhanya did not constitute an appointment. Those who were responsible for his later appointment as principal agent knew the requirements of the legal, regulatory and supply chain framework, but did not follow these important prescripts to the letter and therefore it can be alleged that they acted illegally”.

The Chairperson said that the second sentence should not be there, as it was unnecessary to expand on a finding already made.

Ms Kubayi said that the Committee could not be seen as taking a stance, or trying to justify anything. Further, it should be specified what legal framework was being spoken of -- the Public Finance Management Act, the DPW’s supply chain policy, and the Treasury regulations.

4.6 “The private professional team was appointed in an irregular manner and the ceding by the DPW officials of their responsibilities to Makhanya and R&G consultants allowed for what the Public Protector calls project creep and massive corruption, which saw costs soaring to in excess of R216 million, as highlighted in both the Public Protector and SIU report”.

Ms Kubayi said that it should be expressed that the Committee confirmed this, because the legal framework had not been followed by the officials.

The Chairperson said that 4.6 should be read with 4.7.

4.7 “There was gross negligence on the part of senior officials and the Acting Director General of Public Works. The officials who have acted outside of the legal and regulatory financial framework exposed themselves to the consequences as prescribed in the relevant legislation which gives effect to section 216 of the Constitution, which is the Public Finance Management Act, National Treasury practice notes and the DPW supply chain management policies.”

4.8 “The instances where the executive authority did not adhere strictly to the divisions of responsibility as per the Public Finance Management Act, and where they strayed too close to the work of officials, created a climate in which overzealous officials could have misinterpreted such involvement as further motivation to act outside the parameters of the existing legislative and regulatory framework.”

The Chairperson said that here the wording used needed to closely follow that of the Public Protector’s report, because reference was made to this exact point in that report. This would protect the Committee from allegations that it was interpreting the report.

Ms Kubayi said that the finding as it stood seemed to place the blame only with the DPW. However SAPS, the SSA and South African National Defence Force (SANDF) all had roles to play in oversight over the security features. Without this, there was no way to determine the validity of the security upgrades. DPW’s liability lay mainly in the appointment of Makhanya, but the monitoring of the project was not carried out by the other above-mentioned agencies.

Mr Denyssen agreed with Ms Kubayi, and said that the executive authority was SAPS, brought in under paragraph 4.9. He agreed that the SSA and SANDF should also be brought in under this paragraph, as this would be linked to recommendations and later findings.

Ms Kubayi said that 4.9 spoke only to executive authority and administrative authority. The accounting officers needed to be brought in as well.

4.9 “There was a lack of sufficient oversight and monitoring by the executive authority of the Department of Public Works and SAPS over how policy was implemented towards its desired policy outcomes, as prescribed in the PFMA”.

The Chairperson said that Ms Kubayi’s point under 4.8 also applied here, and the administrative authority of the SAPS, SSA and SANDF needed to be included.

4.10 “The current legislative and regulatory measures related to the installation of security upgrades at residences of political office bearers are fragmented and inconsistent. The National Key Points Act is out of sync with the current constitutional and legislative dispensation”.

The Chairperson said that the heading here must be changed, because it did not reflect the Committee’s discussions.

Mr Beukman said on 4.11 and 4.12, that there was general agreement about 4.11. However, he was unsure whether 4.11 should exist, because the Cabinet Memorandum of 2003 was the guiding light. He said that 4.12 needed to be crafted properly, and the SIU report was diplomatic when it said that the National Key Points Act should not have been used. It was important to note that the fundamental difference between the Public Protector, the SIU and Inter-Ministerial Task Team, was that they differed on the applicability of the National Key Points Act, with only the Public Protector finding that it applied. The Committee should be very clear that the security upgrades were done in terms of the Cabinet Memorandum, and that the “NKPA is not relevant for the Committee’s proceedings or findings”.

Ms Kubayi said that the reference to the NKPA should not be removed entirely, because it was in the reports. Further, the existence of the NKPA had led to the confusion, although the Cabinet Memorandum was the means through which the security upgrades had been conducted. Further, it needed to be mentioned to have grounds for motivating Parliament to change that legislation.

Dr Motshekga said that both of the above Members’ concerns were dealt with under 4.12 and 4.13

4.12 The National Key Points Act of 1980 was not the applicable piece of legislation that guided the security upgrades of the President’s residence at Nkandla.

4.13 The Cabinet Memorandum of 2003 is the appropriate policy document which should have guided the process of securing the private residence of the President. However, only two of the prescribed steps were in fact followed.

4.14 There was a lack of oversight by the executive authorities of the DPW, SAPS and SANDF to ensure proper departmental coordination, in compliance with the Cabinet Memorandum of 2003.

The Chairperson added that the SSA should be added, as this was a security matter.

4.15 Regular security assessments, as stated in the Cabinet Memorandum of 2003, were not performed by the SAPS, under which the relevant state security entities function.

Ms Kubayi said for consistency, all the relevant actors should be mentioned, as they all had some form of responsibility.

The Chairperson said that this would be cross-checked with the Cabinet Memorandum.

Mr Denyssen suggested that this should remain as it was, because it referred to on-going security assessments, even after construction. He agreed, however, that instead of saying ‘relevant state security agencies,’ the specific ones be named.

Ms Kubayi asked where the issue of the initial assessment fell.

The Chairperson said that it was contained in the observations, and the legal advice of Adv Vanara suggested incorporating the initial assessment into the document.

Ms Kubayi suggested that the finding about the absence of the initial security assessments should come before the regular security assessments.  

4.16 The SIU, using the security requirements as set out in the security assessment reports of SAPS and the SANDF, issued a considered view that requires urgent attention. In the final two points of its report, in paragraphs 46 and 47 on pages 247 and 248, it places urgency for further security assessments by security experts from the SSA, SAPS and SANDF. “During the inspection in loco, the investigating team noted a number of matters of concern relating to the upgrades which have been effected. Having regard to what was produced under Makhanya’s stewardship of the project and measuring it against what the security assessment report set out as requirements, our respectful view is that a further review by SAPS should be undertaken as soon as possible”.

The Chairperson said that the entire paragraph 4.17 dealt with the legal advice which he had requested from Adv Vanara, particularly who was qualified to carry out security assessments and what constituted security upgrades. It should therefore be altered to reflect the opinion received.

4.18 We have two pieces of land that are under discussion, one belonging to the Zuma family, where houses were at different stages of completion, and the other belonging to the Ngwenyama Trust. According to the Public Protector’s report, Secure in Comfort, a bond was declared to the registrar of interests. In his letter to the Speaker of the National Assembly, dated 14 August 2014, in which the President states that he has permission to occupy as issued by the traditional authorities, and as such the land belongs to the Zuma family.

4.19 The second piece of land on which residences of resettled families and other features were constructed, is administered by the Ngwenyama Trust. Resettlement of these families took place with the necessary permission of the traditional authorities.

4.20 As part of securing the President’s private residence, and to ensure that in cases of emergency there is a free and fast flow of traffic, various amenities and structures were removed from the President’s land and constructed on this second piece of land.

4.21 In light of the steps you have reported, the President is not in violation of the Executive Members Ethics Code. The Committee is satisfied that both the Public Protector’s investigation and that of the SIU did not find evidence that the President violated the Executive Members Ethics Code.

The Chairperson said that this was where Ms Kubayi’s earlier point about the steps taken by the President could be captured. Further, there needed to be a cross-check about what the reports said exactly on this point.

The Chairperson then invited comment on the process moving forward.

Ms Dlakude said that the Committee should allow the technical team to further amend the document, before the Committee moved on to the recommendations, as the Committee would like these to flow clearly from the findings.

Ms Kubayi said that she seconded the proposal, but a meeting should be held as soon as possible. The findings were almost at the point where they pointed directly to recommendations. All that was left was to fix the structure and phrasing.

The Chairperson said that what would therefore be done was that the technical team would be asked to start to work immediately on the amendments and improvements, with particular emphasis on the opinion from Adv Vanara. He noted that the Committee must report to the National Assembly by the following Friday, and supported what Ms Kubayi had said about meeting as early as possible.

Ms Kubayi proposed meeting on Tuesday morning the following week.

Dr Motshekga supported this proposal.

The Chairperson said he would strive to get the amended report to the Members before the meeting. He then declared the meeting adjourned.

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