Committee Report on Report by President on Nkandla security upgrades: adoption

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Meeting Summary

The Committee convened to consider the final draft report of the Committee. The Committee noted that the outcome in the High Court of South Africa in the matter between the DA and the South African Broadcasting Corporation (SABC) was of relevance to the matter. The judgment provided clarity on the findings and remedial actions of the Office of the Public Protector as it stated that the “powers and functions of the Public Protector are not adjudicative” and that “a finding of the Protector is not binding on persons and organs of state.” The judgment 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 is not to say that the findings of the Public Protector are binding and enforceable or that the institution is ineffective without such powers.” The Committee further observed that the Public Protector found no evidence that the President's brothers benefitted from the prestige project and contractual arrangements that involved the security upgrades at his private residence at Nkandla, but continued to allege that "There is no question that his family benefitted from these as they now form part of the President's estate". The question that arose was whether or not the family had and would continue to unduly benefit from the luxurious items not recommended in the security evaluation”. The Committee noted that the security list developed by SAPS and relied upon by the Public Protector in her report, was not developed in accordance with Step 2 of the Cabinet Memorandum of 2003. There was no evidence that it was conducted together with the State Security Agency (SSA) or that it was submitted to the Inter-Departmental Security Coordinating Committee (ISCC). The Committee could thus not rely on the authenticity of this list.

The reports of the Inter-Ministerial Task Team, the Public Protector and the SIU indicated that costing escalations inflated the project costs in an irregular manner to an amount in excess of R216 million. Having read and perused the investigative reports, there was agreement in the initial meetings of the Committee between all political parties that the value of the existing structures and work that was performed had been grossly inflated and not worth the amount that was spent in excess of R216 million.

The SIU, using the security requirements as set out in the security assessment reports of SAPS and the South African National Defence Force (SANDF), issued a considered view of concern that required urgent attention; in the final two points of its report where it placed urgency on the need for further security assessments by security experts from the State Security Agency (SSA), SAPS and the SANDF. Cited in part, it read as: “during the inspection in loco, the investigating team noted a number of matters of concern relating to the upgrades that have been effected. … having regard for what was produced under Makhanya’s stewardship of the project and measuring it against what the security assessment reports set out as requirements, in our respectful view, a further review by SAPS should be undertaken as soon as possible.”

The Committee recommendations were: The President should ensure the implementation of all measures, as outlined in his final Report on the upgrades at his Nkandla private residence to the Speaker of the National Assembly. The President should also consider whether any Member(s) of the Executive Authority failed to implement the provisions of the Cabinet Memorandum of 2003, either through complacency or negligence in the execution of their duties, and, if necessary, take appropriate action. Further, it recommended that all persons responsible for the loss of state funds should be held accountable and the law should take its course. With regards to whether the President and his dependents benefitted unduly as a result of the security upgrades, the Committee recommended that the matter of what constituted security and non-security upgrades at the President’s private residence be referred back to Cabinet for determination by the relevant security experts in line with the Cabinet Memorandum of 2003. The security experts should report back to Cabinet and the Joint Standing Committee on Intelligence within three months.

The Committee briefly deliberated if time frames should be prescribed to Cabinet in light of their hectic schedule.

The Chairperson said some of the issues would be left open ended if time frames were not attached to the recommendations and that Cabinet would be able to communicate if a specific time frame was unrealistic. There needed to be sufficient pressure, because none of the recommendations were new directives; but it should have been done in the first place. The Committee was now simply stating that it should be done in a prescribed time frame.

The report was adopted with amendments and would be published in the Announcements, Tablings and Committee Reports (ATC) dated 11 November 2014.
 

Meeting report

Consideration and Adoption of the Agenda
The agenda of the meeting was adopted without amendment.

Consideration and Adoption of the Meeting Minutes dated 6 November 2014
Ms M Kubayi (ANC) referred to page three of the Minutes under the heading ‘Legal opinion presented’ and suggested a restructuring of the sentences.

The Minutes of the meeting dated 6 November 2014 was adopted with amendments.

The Chairperson asked if there were any matters arising out of the Minutes.

Dr M Motshekga (ANC) said there had been media reports that stated that this was an “ANC meeting”. The Minutes stated that Mr M Maimane (DA) said that as much as they withdrew their participation from the Ad Hoc Committee to consider the Report by the President regarding the security upgrades at the Nkandla private residence of the President, they considered themselves to be lawful members of the Committee. The Chairperson was correct in making the draft report available, but could not have foreseen that it would be abused at it was. He hoped that such a draft would not be made available again, because after the deliberations, the Committee would adopt the report subject to corrections.

Ms B Ngcobo (ANC) said in line with the apology for non-attendance offered by Mr P Mulder (FF+) for the meeting dated 6 November 2014 it showed that this was not an “ANC meeting”.

The Chairperson noted that there had been a request from Mr Mulder for a copy of the legal opinion and this would be forwarded to Mr Mulder.

The Chairperson said this was Version 4 of the draft report and the Committee would pronounce on the status of the report at the conclusion of the meeting. If the Committee adopted the report, it would be sent to the National Assembly for publishing in the Announcements, Tablings and Committee Reports (ATC).

Consideration of final draft report of Committee
The Chairperson proceeded to read through the report. The introduction covered the Assembly Resolution of 19 August 2014 and the composition of the Committee. On 12 September 2014 the following correspondence from the President was also referred to the Ad Hoc Committee by the Speaker:

(a) A letter, dated 12 August 2014, from the Public Protector to the President of the Republic regarding the report that he submitted to the National Assembly in relation to the security upgrades at his Nkandla residence, and

(b) A letter, dated 11 September 2014, from the President of the Republic to the Public Protector in response to her letter of 21 August 2014.

The Chairperson noted that there was another letter by the Public Protector, in response to the letter of the President, dated 15 September 2014. For record purposes, that letter should also be recorded in the report.

Also on 12 September 2014, the Final Report of the Special Investigating Unit (SIU) to the President of the Republic regarding the Prestige Project involving the security upgrading of the private residence of the President situated at Nkandla, KwaZulu-Natal, was referred to the Ad Hoc Committee. The following reports and correspondence therefore served as source documents for consideration by the Committee:

a) The Inter-Ministerial Security Cluster Task Team Report (Also referred to as the Inter-Ministerial Security Cluster Task Team Report);
b) The Report of the Joint Standing Committee on Intelligence (JSCI) on the Inter-Ministerial Report; and
c) The Public Protector’s Report entitled “Secure in Comfort”;
b) The Special Investigating Unit’s Final Report;

On 23 October 2014 the Assembly, by Resolution, extended the deadline for the Ad Hoc Committee to report to 14 November 2014.

Committee deliberations
On 29 August 2014 the Committee convened to elect a chairperson in terms of the Rules of the National Assembly. However, at this meeting, due to differences of opinion on what constituted the Committee’s Terms of Reference, a chairperson was not elected. The opposition parties were of the opinion that the Resolution establishing the Ad Hoc Committee should be amended to reflect that the Committee was to consider, and report on, the Report of the Public Protector. After consultation amongst all political parties at a special meeting of the Multi-Party Chief Whips Forum of the National Assembly, the Committee reconvened on 9 September 2014 and elected Mr C Frolick (ANC) as its Chairperson.

At the meeting of 25 September 2014, the Members representing the Congress of the People (COPE), although not Members of the Committee, highlighted the party’s objections to the constitutionality of the Committee. All other parties disagreed with the interpretation of the COPE MP's and agreed that the Committee was indeed constitutional. The representatives of COPE then left the meeting stating that 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 agreement on the methodology to follow in performing its mandated task. The key points of deliberation were whether:
• the findings, recommendations and remedial actions in the Report of the Public Protector were binding and enforceable on other organs of State; and
• if any person or persons should be invited to present their reports before the Committee or to provide oral evidence.

 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:
a) The Report of the Public Protector was superior to all other reports;
b) The Public Protector did not make recommendations – her report, “Secure in Comfort”, stated “remedial actions”;
c) The proposed remedial actions stated in the Public Protector’s Report, “Secure in Comfort”, were binding and enforceable;
d) The Committee had to invite persons and parties mentioned in the reports of the Public Protector, the Inter-Ministerial Task Team (Security Cluster), and SIU to appear before the Committee as allowed by Rule 138 of the National Assembly Rules; and
e) The Committee had to seek a legal opinion from senior legal counsel on the status of the Public Protector Report and whether or not its proposed remedial actions were binding and enforceable on the organs of State.

The Majority Party held the following position:
a) The Committee’s deliberations should remain focused on the Report of the President;
b) All the reports had to be treated in an equal manner to avoid casting aspersions on any of the government agencies or structures that dealt with the matter at hand
c) The Committee had to consider the source documents to get a proper understanding of the issues raised
d) The Public Protector made recommendations and might state remedial actions;
e) The proposed remedial actions stated in the Public Protector’s Report were not binding and enforceable on other organs of State;
f) The Committee would first consider the Report by the President and other reports prior to deciding whether or not to call witnesses;
g) The Majority Party listed the ten steps as contained in the Cabinet Memorandum of 2003 as guiding the methodology it would follow.

The Committee could not reach consensus at this meeting on the methodology to be followed. Members of the Opposition Parties withdrew their participation from the Committee and walked out of the meeting. When the Committee again met on 30 September 2014, it was confirmed (in terms of the relevant Rules) that the Members present formed a quorum. The Committee therefore proceeded with its mandated oversight responsibilities to consider the President’s Report and the source documents. In this meeting the technical staff supporting the Committee presented the commonalities and differences in the findings and recommendations of the source documents that served before the Committee. In focusing on this, the Committee also considered the constitutional role of the President, the Executive, Accounting Officers and officials of the respective departments. In concluding the meeting of 30 September 2014, the Committee once more invited the opposition parties to return and participate in the ongoing proceedings towards finalising the work of the Committee. Given the nature of the Committee’s oversight function in considering the President’s Report, the Committee decided that it was unnecessary to call witnesses. The Committee noted that when the Public Protector submitted his Report to the National Assembly in 2004 (Public Protector’s Special Report to Parliament 28 May 2004), the National Assembly established an Ad Hoc Committee to deal with the matters. The Committee noted that, in processing its work, the Ad Hoc Committee of 2004 did not call witnesses to give evidence, but instead considered the contents of the report before it. The Committee therefore applied the principle of precedence (stare decisis) and focused on the content of the investigative reports that served as source documents before it, rather than initiating its own in-depth investigation into the matter. The Committee concluded this meeting by agreeing that a draft Committee report should be prepared for consideration at its next meeting.

On 9 October 2014, the Committee met to consider its draft report. After deliberations, the Committee noted that additional time was required to properly prepare the final report for the Committee's consideration. The Committee again expressed disappointment at the withdrawal of the Opposition Parties from the deliberations of the Ad Hoc Committee. The Committee repeated its call for Members of the Opposition serving on the Committee to return to the Committee to complete the task in line with the House Resolution.

Observations
During its deliberations the Ad Hoc Committee made the following observations:

The status of the Public Protector’s Report, remedial actions, and the High Court (Western Cape) Judgment regarding the Public Protector as ombudsman:

3.1. The Committee noted that the outcome in the High Court of South Africa in the matter between the DA and the South African Broadcasting Corporation (SABC), Case No. 12497/2014, was of relevance to the matter that it was mandated to consider.
3.2. This judgment stressed the importance of the Office 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 and prejudice.
3.3. The Committee noted that, in addition, the judgment provided clarity with regards to the findings and remedial actions of the Office of the Public Protector as it stated that the “powers and functions of the Public Protector are not adjudicative” and that “a finding of the Protector is not binding on persons and organs of state.”
3.4. The Committee observed that the above mentioned judgment 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 is not to say that the findings of the Public Protector are binding and enforceable or that the institution is ineffective without such powers.”
3.5. The Committee further noted that the investigative reports produced by the Inter-Ministerial Task Team, JSCI and SIU all contained findings and recommendations, but that specifically the latter, legislatively, could initiate punitive legal action to ensure redress and remedial action.

Mr F Beukman (ANC) noted that (3.2) should read ‘without fear, favour or prejudice’.

The Chairperson read through the observations and 3.9 to 3.68 dealt with divisions of responsibility, constitutionally prescribed systems of financial control and how the characteristics, material conditions and difficult terrain of Nkandla affected the security upgrades. It also included the private expansions and improvements to the Zuma homestead and observations on whether the President and his family unduly benefited from the security upgrades.

Ms D Dlakude (ANC) said it should be reflected in the positions held by the Majority Party that reports were not being reviewed nor would any inquiries be opened.

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 first house was at roof level with work on the roof at the first stages; the second house was also at roof level just ready for the roof to be installed; and the third house was just below roof level. The Zuma family had appointed its own architect, contractors and engineers for the project and no state funds were used to improve the homestead. In the Inter-Ministerial Security Cluster Task Team Report, DPW made it clear that the Department "did not pay any contractor for the construction of the houses of the President." The President introduced Mr Makhanya, the architect, to the DPW team. This was done because there were already advanced construction taking place at the President's homestead. The President notes that he "...facilitated a meeting between this same grouping of persons and Mr Minenhle Makhanya, the consultant who was already engaged with building work at my home so that they would be appraised of the pre-existing plans for construction at the residences and that there would be as little disruption as possible to the work commissioned." The Public Protector found no evidence that the President's brothers benefitted from the prestige project and contractual arrangements that involved the security upgrades at his private residence at Nkandla, but continued to allege that "There is no question that his family benefitted from these as they now form part of the President's estate". The question that arose was whether or not the family had and would continue to unduly benefit from the luxurious items not recommended in the security evaluation". The observations continued to cover the steps taken by the President to deal with the allegations of maladministration and wastage related to the project to secure his private residence at Nkandla.

With regards to whether the President and his dependents benefitted unduly as a result of the security upgrades, the Committee noted that the security list developed by SAPS and relied upon by the Public Protector in her report, was not developed in accordance with Step 2 of the Cabinet Memorandum of 2003. There was no evidence that it was conducted together with the State Security Agency (SSA) or that it was submitted to the Inter-Departmental Security Coordinating Committee (ISCC). The Committee could thus not rely on the authenticity of this list. There was agreement across investigative reports on non-compliance with the legislative framework, 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 an irregular manner to an amount in excess of R216 million. Having read and perused the investigative reports, there was agreement in the initial meetings of the Committee between all political parties that the value of the existing structures and work that was performed had been grossly inflated and not worth the amount that was spent in excess of R216 million. The observations showed a table that showed general agreement across the reports of the lnter-Ministerial Task Team, the Public Protector and the SIU on the issues of non-compliance, unnecessary cost escalations and irregular activities that took place in this project.

The observation continued to deal with evidence in the investigative reports of control ceded to the private professional team. The reports documented a process amounting to dereliction of duty with control over the design, costing and the procurement of service providers ceded to the private professional team; this was a process in which DPW's professional team systematically and irregularly ceded control of the budget and the procuring of service providers to the private professional team, namely Makhanya Architects and R&G Consultants. DPW's cost control system that normally took place through the Special Bid Adjudicating Committee (SBAC), the Regional Bid Adjudicating Committee (RBAC) and supply chain management was corrupted once the acting Director-General, the Deputy Director-General of Key Accounts Management, the regional manager of the Durban Regional Office, and project manager increased the RBAC cost limitations of R500 000 to an unlimited amount. This meant that the Makhanya-R&G Consultants combination was able to procure service providers with access to state funds that had no limit set to it through the normal cost control system. The reports provided evidence that Mr Makhanya, the architect of the private renovations at the President's private residence at Nkandla, became the Principal Agent of the project. The SIU report 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 Committee observed that the reports referred to the DPW professional team expressing its concerns that the Principal Agent did not prepare and send monthly reports to the DPW professional team. The reports unanimously refer to evidence collected from persons involved that the operationalisation of the project by DPW constituted non-compliance with the 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 policy and going so far as "making the rules as one went along" The Public Protector's report stated that "the authority to implement security measures at the private residence of the President is primarily conferred by the Cabinet Policy of 2003", however, because the National Key Points Act (Act 102 of 1980) was "inexplicably dragged in halfway through the implementation of the Nkandla Project," it was her opinion that its provisions "had to be complied with". Committee noted that the SIU expressed a view that the upgrades were not installed in terms of the National Key Points Act, but in terms of the Cabinet Memorandum of 2003. The observations further covered the steps contained in the Cabinet Memorandum of 2003 and noted that only two of the steps as set out in the Cabinet Memorandum of 2003 were implemented.

Findings
> On the legislation and regulations that guided the security upgrade project, the Committee found that:

4.1. The Cabinet Memorandum of 2003 was the appropriate policy document that should have guided the process of securing the private residence of the President;

4.2. 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.

4.3. Neither the National Key Point Act nor the Cabinet Memorandum of 2003 required the residence to be declared a National Key Point before security upgrades could be effected.

4.4. It seemed as if there was a lack of oversight by the relevant Executive Authority (relevant Ministers) to ensure the proper departmental co-ordination and implementation in compliance with the Cabinet Memorandum of 2003.

4.5. From the source documents, it appeared as if regular security assessments, as stated in the Cabinet Memorandum of 2003, were not performed by SAPS.

4.6. The SIU, using the security requirements as set out in the security assessment reports of the SAPS and the South African National Defence Force (SANDF), issued a considered view of concern that required urgent attention; in the final two points of its report where it placed urgency on the need for further security assessments by security experts from the State Security Agency (SSA), SAPS and the SANDF. Cited in part, it read as: “during the inspection in loco, the investigating team noted a number of matters of concern relating to the upgrades that have been effected. … having regard for what was produced under Makhanya’s stewardship of the project and measuring it against what the security assessment reports set out as requirements, in our respectful view, a further review by SAPS should be undertaken as soon as possible.”

> On the initiation of security upgrades at the private residences of the President, Deputy President, former Presidents and former Deputy Presidents, the Committee found that:

4.7 It was common cause that security upgrades had to be effected at the President’s private residence at Nkandla.

4.8 The Public Protector and the SIU both reported that the Cabinet Memorandum of 2003 was the authority for implementing security measures at the President’s private residence. The Public Protector stated it as follows: “However, no evidence has been submitted or found indicating that the Presidency requested the SAPS and SSA to consider securing the private residence of the President, yet this is the trigger mechanism stipulated in paragraph 8.1.2 (b) (i) of the Cabinet Policy of 2003.” In the light of the aforementioned comments by the Public Protector, it was clear that the President did not request the upgrades.

4.9 The Public Protector further states that “However, I was persuaded by the submissions by various representatives of the State that the normative process is not to wait for a request from the Presidency. I was advised that the action is taken to provide immediate basic security while commencing a process of conducting a comprehensive security evaluation as soon as a President is elected.” The President in his report to the Speaker states that: “In 2009 I was appointed as President of the Republic. Immediately upon my inauguration, members of the security cluster engaged with me regarding security requirements at my homestead which are commensurate with a Head of State of the Republic.” In view of the above, the Committee found that the project to secure the President’s private residence was correctly initiated.

4.10 The President in his Report to the Speaker of the National Assembly indicated as follows: “In the course of the engagements with the security cluster, I initially met with the then Minister of Public Works, Mr. Geoff Doidge, senior SAPS officials and other government officials at my homestead in a consultative process regarding improved security due to my occupying the office of President of the Republic. From time to time I received briefings both formally and informally from the various Ministers engaged with the security enhancements. I was advised at some stage of the need to declare the homestead as a National Security Key Point. Whilst I took no exception to such declaration, I was not intimately involved with the finer details”. Whilst the President might not have requested the security upgrades, it was certain that he became aware of them.

4.11 It is, however, important to note that the reports contained no evidence that the President in any manner influenced the Executive Authorities or officials to act in ways that might suggest that they should have acted irregularly while securing his private residence at Nkandla.

> On the appointment of Mr Makhanya and the Private Professional Team, the Committee found that:

4.12 Those officials who were responsible for Mr Makhanya’s later appointment as Principal Agent knew the requirements of the legal, regulatory, and supply chain management framework, but did not follow these important prescripts to the letter and therefore it could be alleged that they acted irregularly.

4.13 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 "scope creep" and massive irregularities that saw costs soar to in excess of R216 million as highlighted by both the Public Protector’s and the SIU reports.

4.14 There was gross negligence on the part of the senior officials of DPW. The officials who have acted outside of the legal and regulatory financial framework exposed themselves to the consequences as prescribed in the relevant legislation that gave effect to section 216 of the Constitution, which was the PFMA, National Treasury’s Practice Notes and DPW’s supply chain management policies.

4.15 It appeared from the Public Protector’s Report that the former Minister and Deputy Minister of Public Works “were at some stages involved in the implementation of the Nkandla project. The involvement albeit for a short period of time appears to have created an atmosphere that was perceived as political interference or pressure, although the evidence does not show any such intent on their part.”

4.16 The National Key Points Act of 1980 was erroneously applied to deal with the security requirements of the President.

4.17 The oversight over the implementation of the 2003 Cabinet Memorandum was the responsibility of the relevant Members of the Executive Authority.

4.18 The measures of financial control were flouted that transparency and control were not evident in the manner in which the project was implemented.

> On the efforts of the President to investigate allegations of maladministration and wastage in the prestige project involving security upgrades at his private residence at Nkandla, the Committee found that:

4.19 The Public Protector alleged that the President failed to act to protect state resources and that this failure constituted a violation of paragraph 2 of the Executive Ethics Code.

4.20 The information before the Committee showed that the President as Head of the Executive instituted the following actions:

• On 5 October 2012, the Minister of Public Works announced that an investigation into the allegations would take place by a specially convened Inter-Ministerial Security Cluster Task Team. This Task Team would, in all likelihood, have been appointed after consultation with the President. It was inconceivable that a Task Team would have been appointed without the President being aware of its appointment.

• On 20 December 2013, the President signed Proclamation R 59 of 2013 for the SIU to investigate the matter and where relevant, institute civil action to recover any state funds that might have been lost due to possible irregular activities;

• The Inter-Ministerial Security Cluster Task Team reported on its investigation on 27 January 2013;

• Once the Public Protector’s Report, “Secure in Comfort” was made public on 19 March 2014 and was submitted to the National Assembly by the President, the President, adhering to Chapter 9 of the Constitution, noted her report, its findings and recommendations and responded to it through a letter to the Speaker of the National Assembly, on 2 April 2014.

• The President in this letter stated the he requested the SIU to make a provisional report of its investigation available so that he could respond more fully to the report of the Public Protector;

• On 14 August, 2014, the President reported to the National Assembly on the efforts he and government as a collective was making to ensure that whatever state funds might have been lost due to the security upgrades, could be identified and recovered, and that persons who were implicated through evidence, were brought to book.

4.21 In light of the above points, the suggestion that the President did not act, was not correct.

> On whether the President and his dependents benefitted unduly as a result of the security upgrades, the Committee found that:

4.22 The security list developed by SAPS and relied upon by the Public Protector in her report was not developed in accordance with Step 2 of the Cabinet Memorandum of 2003. Step 2 of the Cabinet Memorandum of 2003 required a formulation by SAPS and SSA of a proposal on appropriate security measures to be put in place by the State at the President’s private residence. These measures should thereafter be communicated to the Interdepartmental Security Coordinating Committee (ISCC) for technical assessment.

4.23 In view of the fact that the list compiled by SAPS was not developed in accordance with the Cabinet Memorandum of 2003, the Committee could not rely on the list.

4.24 It was common cause that the Public Protector was not a security expert. The Cabinet Memorandum of 2003 outlined ten steps to be followed when security measures were to be installed at the private residences of a sitting President, Deputy President, former Presidents and Deputy Presidents. All the Reports prepared on the security upgrades at the President's private residence were unanimous that most of the aforementioned steps were not complied with.

4.25 A Senior Parliamentary Legal Adviser provided a legal opinion to the Committee on undue enrichment and arrived at the following conclusion: "Therefore, in my view it would be premature for the Committee to make a finding of undue enrichment prior to the matter having been attended to by the relevant security experts consistently with the Cabinet Memorandum of 2003". The Committee concurred with this legal advice.

> On the ownership of the land, including the structures and amenities that were constructed on it, the Committee found that:

4.26 The President’s report to the Speaker of the National Assembly provided clarity on the issue of ownership and occupation of land in question. Paragraph 11 of the President’s Report reads as follows: “My family homestead is located some 24 kilometres south of Nkandla town centre. The land on which it is situated is owned by the Ingonyama Trust, the legal entity that owns traditional land and is administered by His Majesty King Goodwill Zwelithini Ka BhekuZulu. Together with my family, I occupy the land through a certificate issued by the local inkosi termed Permission to Occupy”.

4.27 It was evident from the source documents before the Committee that both pieces of land where the security upgrades took place belong to the Ingonyama Trust and that the Zuma family occupied one of the pieces of land.

With regards to the question of whether the President was in violation of the Executive Members Code, the Committee found that:

4.28 There were several allegations about the President, amongst others that he lied to Parliament when he said government did not build his house, that government built a spaza shop for Mrs Zuma and that his family benefited from the project (President’s brother). The Public Protector in her Report noted that: “President Zuma improperly benefited from the measures implemented in the name of security which include nonsecurity comforts such as the Visitors’ Centre, such as a swimming pool, amphitheatre, cattle kraal with culvert and chicken run”. The Public Protector cleared the President in all these serious allegations except that she found that there were according to her, “non- security related items that were erected or built which the President and his family materially benefited”.

4.29 In the judgment of the Democratic Alliance v The South African Broadcasting Corporation Limited and Others (Case No: 12497/2014) WC, High Court Judge Schippers referred to the nature and extent of the powers of the Public Protector and stated as follows: “Further, unlike an order or decision of a court, a finding by the Public Protector is not binding on persons and organs of state. If it was intended that the findings of the Public Protector should be binding and enforceable, the Constitution would have said so”.

4.30 Regarding the above, the Committee thus finds that the Constitution, section 167, (4)(e) specified that “only the Constitutional Court may decide that Parliament or the President has failed to fulfil a constitutional obligation.”

Ms Dlakude and Ms Kubayi highlighted some grammatical and spelling errors in the report.

Ms Kubayi referred to point 4.28 and asked that the whole quote as per the Public Protector’s report should be included and that 4.3 should also reflect that the President’s residence was declared a National Security Key Point after the security upgrades were started.

Recommendations
• On non-compliance with relevant legislation, policy instruments and regulations that led to irregular actions and massive cost escalations, the Committee recommended that:

5.1 The President should ensure the implementation of all measures, as outlined in his final Report on the upgrades at his Nkandla private residence to the Speaker of the National Assembly. However, the Committee was of the considered view that the security upgrades should be effected in terms of the Cabinet Memorandum of 2003.

5.2 The President should consider whether any Member(s) of the Executive Authority failed to implement the provisions of the Cabinet Memorandum of 2003, either through complacency or negligence in the execution of their duties, and, if necessary, take appropriate action.

5.3 The President should note the instances where the Executive Authorities did not act according to the prescripts of the PFMA that sets out precise divisions of responsibility between the Executive Authority and the administration, and, if necessary, take appropriate action.

5.4 The Cabinet should strengthen efforts to ensure greater co-ordination of strategic projects pertaining to the security of the President, Deputy President, former Presidents and former Deputy Presidents.

5.5 All persons responsible for the loss of state funds should be held accountable and the law should take its course. The Committee fully supported the measures that were being implemented by the SIU and the relevant authorities.

5.6 DPW should strengthen its supply chain management processes and key accounts management branches, and include as part of this process, precisely set time frames and cost limits for prestige projects.

• On the structures and amenities that were constructed on the land adjacent to the Zuma homestead that belongs to the Ingonyama Trust, the Committee recommended that:

5.7 The relevant Executive Authority should discuss, at the appropriate time, the post-tenure arrangements with the relevant local, provincial and national authorities to facilitate the future use of such structures and amenities by the local communities.

5.8 DPW should ensure that the necessary consultations take place with the state security departments so that proper security assessments regularly take place to ensure the ongoing security of the President, Deputy President, former Presidents and former Deputy Presidents and their dependents after they leave office.

• On whether the President and his dependents benefitted unduly as a result of the security upgrades, the Committee recommended that:

5.9 The matter of what constituted security and non-security upgrades at the President’s private residence be referred back to Cabinet for determination by the relevant security experts in line with the Cabinet Memorandum of 2003. Cabinet should report back to Parliament on the steps taken to give effect to this recommendation.

• On the legislation and regulation that guided the security upgrade project, the Committee recommended that:

5.10 Policy and regulatory gaps in the current legislative and regulatory framework relating to securing the private residences of political office bearers required urgent attention to avoid further possible waste of state resources.

5.11 A comprehensive review of the National Key Points Act (102 of 1980) should be undertaken to ensure that a new piece of legislation that is relevant to the current Constitutional and Legislative dispensation is promulgated.

5.12 The Cabinet Memorandum of 2003 and related regulations such as the Ministerial Handbook should be reviewed by Cabinet;

5.13 A technical team of qualified security experts from SSA and SAPS should undertake an evaluation of the existing security features at the private residence of the President at Nkandla to assess whether the implemented security features were secure, and to evaluate the concerns raised by the SIU report. The outcome of this evaluation should be reported to Cabinet.

5.14 All contractors involved in projects that were focused on security upgrades of senior public office bearers, should in future be properly vetted by the relevant security agencies and should comply with the construction industry building standards as set out in the policies and regulations of DPW.

5.15 The relevant Executive Authorities, after doing the necessary assessment with security experts should, in future report to Cabinet and the Parliament on the implementation of security upgrades of Prestige Projects. Regular reports as per the relevant legislation should be made to Parliament.

5.16 A private home of the President and the Deputy President that was used for official government accommodation should qualify for the necessary security installations and security improvements.

Ms Dlakude said the report-back to Cabinet on what constituted security and non-security upgrades by the relevant security experts should be made within three months.

Ms Kubayi said that timeframes of three months should be set for 5.1, 5.6, 5.13 and that reporting should be done to the JSCI as well as Cabinet for 5.15. She asked if the relevant Members of the Executive Authority should not be listed where relevant in the recommendations.

Dr Motshekga said the recommendations were in line with Parliament’s oversight over the President and the Executive. It strengthened democracy, the Constitution, accountability and checks and balances.

Ms Dlakude said the Committee could not put time frames on Cabinet because of their hectic schedule.

The Chairperson said some of the issues would be left open ended if time frames were not attached to the recommendations. Surely Cabinet would be able to communicate if a specific time frame was unrealistic. There needed to be sufficient pressure, because none of the recommendations were new directives; it should have been done in the first place. The Committee was now simply saying it should be done in three months. For 5.3, the former Minister and Deputy Minister of DPW could be included, because they were already named in the Public Protector’s Report. Recommendation 5.2 was adequately worded, because Member(s) of the Executive Authority reported to the President and the President should consider whether any of them failed to implement the provisions of the Cabinet Memorandum of 2003 and take appropriate action where needed.

Dr Motshekga agreed and said the Committee was not investigating Member(s) of the Executive Authority.

Ms Dlakude proposed adoption of the report with amendments.

The Chairperson clarified 5.13 and said the Committee did not give this team an instruction to spend more money on the project, but it was a directive to evaluate the concerns of the SIU and to report back to Parliament.

Mr Beukman seconded the proposal for adoption.

The Chairperson stated that the report was thus adopted by the Committee.

Mr Motshekga said the draft report should not be distributed, because it was subject to corrections.

The Chairperson said the report before the Committee was clearly a draft report and the final report would be published in the ATC.

The Chairperson thanked the Committee and the meeting was adjourned.
 

Present

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