Was Madonsela wrong about Nkandla?

2015-05-18 05:18

In 2009 the National Assembly elected Jacob Zuma as South Africa’s fourth democratic president. Mr Zuma claims that shortly after his election his family took a decision to renovate their homestead in Nkandla, northern KwaZulu-Natal. The renovations were to be done at the family’s expense.

However, on December 4, 2009, a Mail & Guardian report made the accusation that Mr Zuma was ‘expanding his remote family homestead at Nkandla in rural KwaZulu-Natal for a whopping price of R65-million—and the taxpayer is footing the largest chunk of the bill.’ On November 11, 2011 the paper alleged, among other things, that, ‘Lavish extensions to the president's KwaZulu-Natal homestead include underground dwellings and an escape tunnel, funded by public money.’ The paper’s sources put the total budget at between R69-million and R400-million.

In 2012 members of the public requested the Public Protector, Advocate Thuli Madonsela, to investigate public spending on the President’s homestead in Nkandla. Adv Madonsela’s Report (March 2014) highlighted the scale of the Nkandla Project—aptly named “Prestige Project A”. She called it ‘a runaway train of public mismanagement and corruption’.

She noted that the initial cost estimation for the project was R145 million, which ballooned to R215 million and then to R246 million. While the official justification was that the cost was acceptable as necessary expense for the President’s security, Madonsela had to investigate several patently non-security features, which include a visitors’ centre, a cattle kraal, a chicken run, an amphitheatre, a marquee area and a swimming pool.

Madonsela concluded that: ‘The Minister of Public Work’s communication with Parliament, the nation and, possibly, the President was riddled with inaccuracies and inconsistencies, particularly regarding the regulatory framework employed to justify state expenditure on the upgrades at the President’s private residence, the nature of the upgrades and the extent to which the President and his family benefited from relevant installations. This has grossly undermined trust in government.’ She found that public officials involved in the Project failed dismally to follow Supply Chain Management prescripts and Treasury Regulations.

As regards the President, Madonsela concluded that he failed to discharge his responsibilities as the ultimate guardian of state resources. Specifically, he failed to ask questions about the scale, cost and affordability of the Nkandla Project. Further, she invoked section 96 (conduct of Cabinet Members and Deputy Ministers) and section 237 (diligent performance of obligations) of the Constitution and the Executive Ethics Code to support a assertion that Mr Zuma was required to take reasonable steps to inquire into the situation and to ensure an immediate correction of any irregularities and excesses.

She concluded that, ‘His failure to act in protection of state resources constitutes a violation of paragraph 2 of the Executive Ethics Code and accordingly, amounts to conduct that is inconsistent with his office as a member of Cabinet, as contemplated by section 96 of the Constitution.’ Having found that the president and his family ‘benefited unduly’ from state resources, she recommended that he should pay back a portion of the benefit.

The Office of the Public Protector

Before delving into my quarrel with the Report, I must digress and touch on the constitutional status and powers of the Office of Public Protector?

The Public Protector is one among several institutions created by Chapter 9 – specifically section 181(1) -- of the Constitution to ‘strengthen constitutional democracy in the Republic’. Although the Public Protector has been called an ombudsman, the office is in fact sui generis. In its recent judgment in Democratic Alliance v South African Broadcasting Corporation, the High Court explained that, ‘[Chapter 9] institutions are independent, subject only to the Constitution and the law; required to be impartial and exercise their powers and perform their functions without fear favour or prejudice; and are accountable to the National Assembly.’

Section 182 of the Constitution provides that the Public Protector has power, as regulated by national legislation, to: ‘(a) to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; (b) to report on that conduct; and (c) to take appropriate remedial action.’

In 1994, the Legislature enacted the Public Protector Act ‘to provide for matters incidental to the office of the Public Protector as contemplated in the Constitution’. This Act must be read together with section 182 of the Constitution.

In its judgment in Public Protector v Mail & Guardian Ltd and Others, the Supreme Court of Appeal held that, ‘The office of the Public Protector is an important institution. It provides what will often be a last defence against bureaucratic oppression, and against corruption and malfeasance in public office that are capable of insidiously destroying the nation. If that institution falters, or finds itself undermined, the nation loses an indispensable constitutional guarantee.’

What’s wrong with the Report?

I’m convinced that Adv Madonsela took great care not to be drawn into the debate about Mr Zuma’s fitness to hold office. I suspect too that, in an attempt to protect the independence and integrity of her office, she avoided speculating about whether the President is corrupt. She thus carved her findings around him in order to ensure that he could be held accountable without speculations about his wrongdoing.

I don't doubt the magnanimity of Adv Madonsela’s intentions. However, I think her solution -- to what must have been a challenging political morass -- is plagued by defective constitutional assumptions. The first is that a president can be held  directly accountable for mismanagement as the ‘ultimate guardian’ of resources. The second is that a public official who ‘benefits unduly’ from state resources, without personal wrongdoing, can be ordered to pay back a portion of the benefit.

Is the President the ultimate guardian of resources?

In terms Chapter 5 of the Constitution, the President is ‘the Head of State and head of the national executive’. He must uphold, defend and respect the Constitution as the supreme law. The President wears two hats: as the ‘head of state’ – which entails mostly ceremonial functions – and as the head of the national executive, which entails managing the day-to-day functions of government. This distinction is important.

Section 85(2) provides that the President ‘exercises the executive authority, together with the other members of the Cabinet.’ Section 92(1) provides that, ‘the Deputy President and Ministers are responsible for the powers and functions of the executive assigned to them by the President’. Section 92(2) provides that, ‘Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.’

It is doubtful whether the President could have taken action, short of meddling in procurement processes and micro-managing the Project. Section 216(2) of the Constitution provides that, ‘the national treasury must enforce compliance with the [financial control] measures established in terms of subsection (1), and may stop the transfer of funds to an organ of state if that organ of state commits a serious or persistent material breach of those measures’.

The import of sections 85, 91, and 92 is that cabinet members are accountable individually to Parliament. Further, in terms of section 216, the national treasury, which reports to both the President and Parliament, is ultimate controller of state resources.

‘Benefiting unduly’

It is quite patent that the President and his family benefitted unduly from state resources. However, if one disputes the claim that the President bears ‘ultimate’ responsibility over state resources, as I do, then the President benefitted unduly without wrongdoing on his part.

The more pointed question is whether the Public Protector has the power to order the President to pay back a portion of the benefit, in a case where she does not make a direct finding of mismanagement against him.

Section 6(4)(iv) of the Act provides that the Public Protector has the power to investigate ‘any alleged improper or unlawful enrichment, or receipt of any improper advantage, or promise of such enrichment or advantage, by a person as a result of an act or omission in the public administration or in connection with the affairs of government at any level or of a person performing a public function.’

If the Public Protector concludes that there is such an offending act or omission, then section 6(4)(b) provides that it is in the Public Protector’ sole discretion to rectify the act or omission by: (i) mediation, conciliation or negotiation; ?(ii) advising, when necessary, any complainant regarding appropriate remedies; or ?(iii) any other means that may be expedient in the circumstances.

I concede that the clause ‘any other means that may be expedient in the circumstances’ may be read to allow a recommendation to pay back a portion of an undue benefit. However, in the case of the Nkandla Project, the recommendation is problematic for a number of reasons.

First, the President insists that he did not order the non-security features. Whether we believe him is beside the point. The question is whether any institution has the power to order him to pay for (or buy) something he does not want merely because of actions of other public officials? A possible response is that the Mr Zuma’s architecture approved the non-security features and, therefore, he is liable in terms of agency law. I don't find this argument particularly convincing.

Second, it is unclear any institution has the power to order the President, or any other public official for that matter, to pay back an accrued non-monetary benefit. One possible suggestion is that the courts have a power to order such restitution relying on the private law concept of unjust enrichment. However, the law of unjust enrichment applies as an equitable action between two parties. Clever lawyers may argue that the common law concept of unjust enrichment should be developed in terms of section 39 of the Constitution to apply to restitution of undue benefits to public officials. I do not think a court would accept this argument. I am not even sure a court should accept such an argument.

Finally, are recommendations of the Public Protector binding?

Adv Madonsela and Mr Zuma got into a nasty public spat about whether he could dispute her recommendations. In a strongly worded letter leaked to the press, Madonsela complained that the President purported to give the Minister of Police (or the Executive) power to review her Report. She insisted that her decisions are not subject to ‘review or second guessing by a Minister and/or the Cabinet.’ In her view, the decisions of the Public Protector can only be judicially reviewed or set aside by a court of law and any second-guessing amounts to a usurpation of her constitutional powers. Is she correct?

The High Court does not think so. In a persuasive judgment in Democratic Alliance v South African Broadcasting Corporation (2014, now on appeal before the Supreme Court), Schippers J held that ‘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.’ The Judge warned that the Public Protector should not be viewed as a ‘parallel court of first instance for maladministration’.

Professors Woolman and Bishop, editors of the most persuasive constitutional law treatise in South Africa, also take this view: ‘One of the most common criticisms levelled against the Public Protector, and ombudsmen generally, is that the institution lacks the power to make binding decisions. In truth, however, the ability of the Public Protector to investigate and to report effectively – without making binding decisions – is the real measure of its strength.’

This post comes from a longer (unpublished) comment on the Nkandla Report. Get in touch on Twitter: @Brad_Cibane.

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