Zuma pay back the money: Finish and Klaar

2014-09-15 11:50

There is always a fall guy or formally, a scapegoat for Mr. Jacob Zuma’s misdeeds, incompetence, untampered appetites and arrogance with his approach on power. Minenhle ‘The Architect’ Makhanya, who the Special Investigating Unit (SIU) has decided to institute a civil lawsuit of R155-million on, is a convenient person to use to deflect attention from the President and his Cabinet members. These people must be held to account for the mess that Nkandla has become.

It was in the absence of their vigilance and commitment to good governance that a private citizen (Minenhle Makhanya) was given powers of a government employee and according to the SIU, this behaviour “simply reinforced the abdication by the Department of Public Works of its obligations and responsibility to protect the public interest and the public purse.”

By the SIU’s admission, at the end of the investigation, they were faced with two choices on how to recover the ‘damages or losses’ suffered by the Department of Public Works to the tune of R155-million. The first was to “institute separate claims against each of the persons who or entities that were enriched…” The second choice was to “claim the full extent of its damages or losses from the person who was directly responsible for causing them, namely, Makhanya.” The SIU chose the latter, because logistically it is simpler and ensures that the ‘full extent’ of damages/losses is claimed.

However, I want to add, my observation is that this choice was also practical for the SIU because it meant that they would avoid instituting a civil lawsuit against the President. This is because the SIU founded that “the President and his family were enriched” and clearly would be liable to paying back some money to the state (as proposed by the Public Protector) had the SIU chosen the first available option to it – civil claims against individuals. Therefore, the defenders of Zuma will do well to not mislead the public and claim that the SIU report exonerates the President from payment; the SIU – simply out of cowardice – chose not to give such instruction.

Seemingly, the problem with Nkandla is that a great deal of Public Works employees - in their excitement to deliver security and comfort to the life of the President of South Africa – acted naively, foolishly and used herd mentality in their approach to procurement processes, appointment of companies, monitoring and evaluation of the Nkandla project. For this, many disciplinary hearings and criminal charges for contravention of policies and laws should be brought against them.

At the heart of the mess is not only Minenhle Makhanya – a private consultant. There is great prominence of the name Mr Jean Rindel (the official Public Works Project Manager) throughout the SIU report. This individual failed to implement many of the Supply Chain Management policies of the Department of Public Works. The same person failed to report deviations to the Treasury and Auditor-General as required by policy. However, this is not the bigger picture of the Nkandla fiasco.

The most worrying aspect of the SIU report, as well as those of the Public Protector and Ministerial Task Team, is that it shows the high level of misinterpretation of rules, laws and guidelines. Further is shows their rejection, sidestepping and undermining. At times, this is caused by what seems to be a complete lack of knowledge in terms of what is required of the state employees in the departments involved with the Nkandla project. On the other hand, it shows the flagrant disregard of rules, laws and guidelines.

This can only mean that Nkandla is the tip of the iceberg. Surely, this is not then only project that state employees have behaved in this manner and cost the public purse billions of Rands – to accidentally or deliberately enrich service providers that happen to have friends in high places or those that benefit by coincidence. Such gross negligence and absence of vigilance and impeccability in handling taxpayers’ money deserves serious punishment.

However, we know that government does not run itself. The Executive (Cabinet) is appointed for this purpose. The ultimate responsibility lies with this body, which must be held under close scrutiny by a vibrant, incorruptible, transparent and unrelenting Parliament in its pursuance of a functioning Executive – something that remains absent in the South African state. The SIU report is very revealing where this is concerned.

It states the following in respect to the negligence of the Ministers of Public Works and Safety and Security not fulfilling their constitutional duties, “Perhaps most significant, it means that the upgrades were effected without the requisite authority. Accordingly, the expenditure incurred in effecting the upgrades will probably be regarded as unauthorised for the purposes of the PFMA. However, money has been expended and upgrades have been effected. That cannot be undone.”

Yet these Ministers, who had failed in their duties, were at the forefront of defending the Nkandla upgrades, exonerating themselves from any wrongdoing, instead opting for the easier route to bully senior managers and low-level employees by using them as scapegoats. Because this project had a unique aspect to it – the upgrading of security in the President’s private residence, the Ministers had to be kept abreast and they needed to give authority for all aspects of the project, once the President himself had indicated satisfaction with the planned upgrades.

This is a requirement of a Cabinet Memorandum that guided the project, as the SIU concluded, “The upgrades were not effected in terms of the National Key Points Act.” This revelation indicates that members of the Cabinet misled both the public (contravention of public trust) and parliament (contravention of the constitution). This misleading action was intentionally done to cover the project with a cloud of secrecy and attempt to sidestep the jaws of accountability.

For the SIU to then go after Makhanya the individual, for the recovering of the costs and damages suffered by the public purse, is not only cowardice, but it also defeats the search for accountability on this Nkandla mess. Makhanya did not arrogate to himself the powers that led to him altering plans and adjusting costs of the project – this should never have happened in the first place. Who is responsible for this? Surely not Makhanya himself.

Zuma insisted that he no longer wants new contractors in his property and therefore forced the hand of the Department of Public Works to further employ the contractors in Nkandla, who among other things – some of them – inflated prices, claimed money for services and/or goods not delivered. That was not Makhanya. The chaos erupted also when Makhanya was recommended to Public Works as representative of the ‘private [renovation] works’ happening in the President’s Nkandla home. This, according to the SIU report, prompted the then Minister of Public Works Mr Doidge to requesting “the DPW professional team [and Makhanya] to synchronise the concepts (private and public) in order to ensure a smooth implementation of the project.”

At the time of synchronising the private and public works, it seems much of the planned private renovations by the Zuma family were not even halfway to completion. What this means is that there was a window to exploit the public purse by having Public Works now footing the entire bill of both the private (building of new family houses and amenities) and public (security upgrades) projects.

Zuma and his family must show that after Public Works came on board they continued to make payments to contractors and consultants until the private works were completed, though happening in parallel with the security upgrades by Public Works. We already know that the chicken run, culvert, swimming pool, amphitheatre etc were wrongly paid for by the public purse. Nevertheless, there is much more that could easily have been paid for in the hazy processes that were followed.

Zuma must pay back the money, his hands are not clean – finish and klaar.

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