Tag Archives: South Africa

South Africa – Gumede says political rent-seeking is impeding talent and thew economy

Mail and Guardian

When the politically connected keep gorging at the trough, bona fide black talent is kept back, writes William Gumede.

Incompetent, rent-seeking public sector deployees often cause waste, mismanagement and inefficiencies. Service delivery gets stunted and a negative cycle of corruption ensues. (David Harrison, M&G)


South Africa is increasingly becoming a “rent-seeking” society in which the politically connected make easy money without having to work for it: they get government and private sector contracts, mining rights and favourable policies just because of their closeness to the ANC leadership.

Although rent-seeking may, for many, appear not to be corruption, it is a pervasive form of it. The entrenchment of a rent-seeking culture undermines the productive capacity of the economy, as well as innovation and new investment. It discourages job creation and efforts to reduce poverty and inequality. It ultimately stymies economic growth.

An obvious form of rent-seeking is narrow black economic empowerment (BEE), whereby shares in established white companies are allocated to a few politically connected blacks, their families and their associates. They become fabulously rich overnight just because of their political connections.

Such rent-seeking does not add value, but rather diminishes it. It is no wonder that many first-generation BEE deals have unravelled.

Rent-seeking includes appointing politically connected cadres in both the public and private sectors, or giving them government or private contracts, when they do not have the competence. Rent-seeking also involves lobbying for policies that enrich one group, company or political faction rather than the whole society.

Such activities generate more of the same, until there is a widespread culture of rent-seeking. If no action is taken against this, more people are attracted to such actions. Rent-seeking can generate a network of institutions that profit handsomely, such as lawyers advising on narrow BEE. It drives pork-barrel policies.

In the rent-seeking economy, there is no long-term investment. The rent-seekers try to “eat” as much as quickly as possible to amass wealth, before being pushed from the trough by the next dominant group.

Because it is so easy for the politically connected to live off “rents”, they are unlikely to have the incentive to build brick-and-mortar companies. Yet if South Africa is to industrialise, we need new, competitive productive sectors. Rent-seeking induces deindustrialisation.

The economy does not expand its productive capacity when rent-seekers milk existing capacity, choking less connected innovators and entrepreneurs who fail to get start-up finance, mining rights or trading licences. Narrow BEE means that black South Africans who are real entrepreneurs and innovators, people who could establish genuinely productive enterprises, creating new businesses and jobs, are elbowed out.

Worryingly, BEE deals increasingly use intermediary contractors who form superficially black shell companies, with little productive capacity, to secure public sector contracts. In many cases, established white companies will only appoint such politically connected black “businesses”.

Giving government contracts to the politically connected often means that services get more expensive: they have to hire white businesses with the capacity to deliver on their behalf. The same politically connected businesspeople get “empowered” by repeatedly being part of BEE contracts and government deals, to the detriment of building other companies.

A new phenomenon increasingly reported is that politically connected BEE businesspeople, in cahoots with corrupt government tender officials, steal the business plans submitted by entrepreneurs who are not politically connected, rework them slightly and then resubmit them to the same corrupt officials with successful outcomes.

Well-connected political deployees to government who lack the necessary competence push out talented potential incumbents. We often see the same people being appointed to senior positions, such as director general, in different departments, or as executives and board members at state-owned enterprises, even when they fail. They hop from one post to another, even if there are many talented black professionals out there.

Incompetent public sector deployees often cause waste, mismanagement and inefficiencies. Service delivery gets stunted and a negative cycle of corruption, nepotism and mismanagement ensues. They demoralise those working under them, decrease their productivity and undermine the whole system.

Rent-seeking is increasingly causing black resentment – from young black people, who cannot find a job without political connections, from business and from black professionals who get frozen out.

Black workers are also rebelling because they have not been empowered by skills development, shareholding and company social development, such as the provision of housing. Residents are angry because they are excluded.

Rent-seeking stunts the productivity of the whole economy: why does one have to work hard when all one needs is to be politically connected?

This rent-seeking phenomenon has broken the economies of most African countries in the postcolonial period. The cycle of rent-seeking, it seems, can only be broken if the sitting government is unseated.

So far, no African government that has lapsed into a rent-seeking culture has been able to reform from within. If South Africa is to buck this trend, there has to be a grass-roots campaign against corruption: the masses must understand its damaging impact on service delivery, poverty alleviation and job creation.

William Gumede chairs the Democracy Works Foundation and is the author of Restless Nation: Making Sense of Troubled Times. Unite against Corruption, a consortium of civil society groups and individuals, is organising marches against corruption in Cape Town and Pretoria on September 30. For details, visit uniteagainstcorruption.co.za.

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ICC demands explanation from South Africa over Bashir

Mail and Guardian

The ICC wants an explanation, by no later than October 5, as to why the government did not arrest al-Bashir when he visited the country.

'The International Criminal Court (ICC) had warned South Africa of the repercussions of allowing Sudanese President Omar al-Bashir into the country way before he controversially landed in South Africa in June this year.

The International Criminal Court (ICC) has given South Africa until October 5 to explain why it did not arrest Sudanese president Omar al-Bashir.

The ICC had warned South Africa of the repercussions of allowing al-Bashir into the country way before he controversially landed in South Africa in June this year.

In an order made by the court last Friday, it emerged that the registrar of the ICC met with the South African embassy and reminded it of the country’s obligation to the Rome Statute.

The order was posted on the ICC website. The full post can be read here.

On May 28 this year, in a note verbale to the South African embassy, the court reminded South Africa of its obligation to consult with it if it foresaw any difficulties in arresting al-Bashir.

Lack of clarity
On Friday June 12, the day al-Bashir landed in Johannesburg, the South African representative to the court told the court that there was lack of clarity in the law and that South Africa was “subject to competing obligations”.

On the following Saturday, even before a South African court ruled that al-Bashir be arrested, an ICC judge, Cuno Tarfusser, issued a decision noting that South Africa has to immediately arrest and surrender al-Bashir.

Despite this, al-Bashir attended the AU Summit in Sandton, Johannesburg.

On Monday, June 15, the North Gauteng High Court ruled that al-Bashir be arrested and handed over to the ICC. But by that time al-Bashir had already left Waterkloof Military Base in open defiance of the order.

Last month, a full bench of the North Gauteng High Court reserved judgment on the government’s application for leave to appeal against a June 15 order that al-Bashir be arrested.

No legal duty
The government’s lawyer in the appeal against the order, Jeremy Gauntlett, argued that there was no legal duty for the government to arrest a “serving head of state under the South African law”.

He said the order to arrest al-Bashir was contrary to the government’s statutory duties, not consistent with the Constitution and inconsistent with Constitutional Court authority.

Al-Bashir has been wanted since 2009 on charges of crimes against humanity.

The department of international relations would not comment on the order from the ICC saying the matter was sub judice. The controversial exit of al-Bashir from South Africa has become a sticky political matter.

Could SA leave Rome Statute?
Over the weekend, the ANC Youth League called once again for South Africa to relinquish its commitment to the Rome Statute.

The ANC has also instructed the department of international relations to review South Africa’s membership of the court.

Last week the Democratic Alliance failed in its bid to have President Jacob Zuma impeached on the basis that he did not uphold the rule of law by not arresting al-Bashir.

Speculation is rife that the Sudanese president may return to the country in December. This may be seen as an open defiance of the ICC by South Africa and will likely strengthen rumours that Pretoria will soon pull out of the Rome Statute.

The Sudanese leader may well be invited to The Forum on China/Africa Co-operation, scheduled to take place in December.

Zuma met with al-Bashir in China last Thursday where the pair committed to strengthening bilateral relations.


South Africa – Ramaphosa says he didn’t know plane he flew on to Japan belonged to Guptas

Mail and Guardian

Deputy President Cyril Ramaphosa has said he was not aware that the plane chartered for his official visit to Japan last month belonged to the Guptas.

Ramaphosa responding to questions in the National Council of Provinces on Wednesday. (David Harrison, M&G)

Deputy President Cyril Ramaphosa did not know that the aeroplane he flew on to Japan last month belonged to the Gupta family.

Responding to questions in the National Council of Provinces (NCOP) on Wednesday, the deputy president told Economic Freedom Fighters MP Emmanuel Mtileni that government had nothing to hide about the use of the Gupta jet.

This was after Mtileni sneaked in the question while the deputy president was talking about the prevalence of fake qualifications.

Last month, Ramaphosa flew to Japan on the Bombardier Aerospace on an official visit, which the department of defence hired through a state-managed contract with service provider ExecuJet.

Ramaphosa told MPs in the NCOP that when he travels, his office handles the details, looking at the route and cost.

“The Defence Force looked for a plane among the fleet of planes they have and found that there wasn’t one that could take us to the destination in a way that was appropriate.

“They then chartered a flight. They did not know who that flight belonged to, nor did I. I did not know who that plane belonged to. The information about the ownership of the plane only came out much later.”

He said they always sought to find the most cost-effective way of getting to destinations. “And we will continue to do, to make sure that taxpayers’ money is saved, and in this case it so happened that because of the commitments that we had and the number of other engagements, the best way to travel was to have a plane chartered. That is the reality, believe it or not.”

The deputy president faced questions on the government’s efforts to improve efficiency in state-owned enterprises, the empowerment of women, the rise in fake qualifications and the national minimum wage.

State-owned enterprises
Ramaphosa told MPs that the electricity challenge the country faces would pass and soon be forgotten, the ANC would choose the next president, female or otherwise, and all those with fake qualifications should remove them immediately from their CVs.

On state-owned enterprises, Ramaphosa said the work they were doing had nothing to do with the local elections and that the government was doing its job.

He said entities such as Eskom and the South African Post Office had their challenges but that they were working on them.

“Eskom is another utility that has faced challenges. But even Eskom is being turned around. And we all know the challenges that Eskom faces and we’ve never hidden them. In another 18 months to two years, you will forget the challenges that we had with relation to power and energy and Eskom ever happened. Be patient, this problem is going to be resolved.”

Female president
On the question of gender parity, Ramaphosa was put on the spot when an MP asked if he would support a female president. He said only that the ANC would choose.

“I am fortunate enough to belong to this glorious organisation called the ANC and it has always expressed its own ambition as to who should lead the ANC. And it has always acted on it. It has never failed to choose a person that it feels will take the agenda of the ANC forward. And when it chooses who should lead the ANC, it has a wide choice. It has 1.5-million members to choose from.”

Fake qualifications
On the prevalence of fake qualifications at private and public entities, Ramaphosa urged South Africans to stop padding their CVs with fake qualifications.

“We call on members of the public to ensure they do not jeopardise their employment prospects by misrepresenting their credentials. It’s either you have it or you don’t have it. Go and study and get your qualification. Let us not be fakes, let us not be fraudulent when it comes to our qualifications. If you are not educated, don’t claim it.”

He urged everyone with fake qualifications in their CVs to remove them, roll up their sleeves and go to school, as it was clear that by putting the “fake qualifications on their CVs, they have a deep desire to have them”.

South Africa – DA bid to impeach Zuma over Bashir fails

Mail and Guardian

he DA’s bid to impeach President Jacob Zuma over the government’s handling of Sudanese President Omar al-Bashir’s visit to the country has failed.

Mmusi Maimane said by allowing Bashir to leave the country, “our broken president broke the law to protect another broken man”. (David Harrison, MG)

The Democratic Alliance brought a motion to impeach Zuma to Parliament because it blamed his government for allowing Sudanese President Omar al-Bashir to leave the country, despite the North Gauteng High Court ordering that he be stopped from leaving. The party called for the establishment of an ad-hoc committee to establish Zuma’s fitness to hold office.

In a chaotic sitting with shouting MPs and even louder speakers, the motion to impeach Zuma was rejected, with 211 MPs voting against it, 100 for it and 17 abstentions, mostly from the Economic Freedom Fighters.

The EFF suggested amendments to the motion, including establishing an ad-hoc committee to deal with the Marikana massacre. Their motion was defeated with 310 votes against and 17 in favour, with one abstention.

DA leader Mmusi Maimane went back to an old classic during the impeachment debate in Parliament on Tuesday, another version of “the broken man” speech, this time including al-Bashir.

Justice and Correctional Services Deputy Minister John Jeffery reiterated the sentiment by calling him a hollow man, presiding over a hollow party full of empty promises.

In February this year, following the State of the Nation address, Maimane lashed out at Zuma, labelling him a broken man who has been allowed to get away with too much, accusing him of breaking Parliament.

And on Tuesday, he piled yet another wave of criticism on the president, this time for the country’s handling of Bashir’s visit to the country in June during the African Union Summit.  Bashir is wanted by the International Criminal Court for war crimes and crimes against humanity.

In his speech in Parliament on Tuesday, with ANC MPs heckling him throughout, Maimane said Bashir represented everything dark about the world.

“He joins the ranks of genocidal dictators from across the globe – Hilter of Germany, Pol Pot of Cambodia, Stalin of the Soviet Union and Chairperson Mao of the People’s Republic of China. These are the big men of our times. And, like all bullies, they are broken men. Broken men presiding over broken societies.”

Maimane said by allowing Bashir to leave the country, “our broken president broke the law to protect another broken man”. He said that was why they had tabled a motion to look into the impeachment of Zuma.

Maimane told the ANC while they could not fix a broken president, they could recall it, as they had done it before.

“You know as well as do he is beyond repair. Today is your opportunity to put South Africa back on track.”

Small Business Development Minister Lindiwe Zulu said she was sure South Africans were tired of hearing “broken man this, broken that”.

She said the motion was aimed at discrediting the leadership of the ANC, under Zuma.

“It is also aimed at undermining the role and responsibility of South Africa in the peace-building processes of the African continent. Further, it is aimed at undermining the political, economic and diplomatic relations South Africa has with other AU member states. The ANC-led government has always respected and upheld the rule of law and has always acted in line with the letter and spirit of the Constitution of the Republic.”

She said the question of whether South Africa had a legal obligation to arrest a sitting foreign head of state was a complex matter concerning both international and national law and had far-reaching implications for the conduct of international relations.

“It should be noted that the indictment of President al-Bashir would have potentially destroyed efforts led by Deputy President Ramaphosa as well as the AU in bringing about peace in the region and the country. In addition, it would have affected South Africa’s standing relations in its international and diplomatic relations on the continent and beyond,” said Zulu.

Economic Freedom Fighters MP Godrich Gardee said Zuma should be thrown in the dustbin, though not for not arresting Bashir when he was in the country.

He said the president should be impeached for the slow-moving economy, the Marikana massacre and the spending of funds on his Nkandla homestead.

“Those who want al-Bashir, they should go look for him. He [Zuma] should go, not for al-Bashir, but because he is in total disregard of the Constitution. Pantsi ngoZuma,” Gardee said.

The United Democratic Movement did not support the motion. UDM MP Nqabayomzi Kwankwa said if the motion had been about anything else but Bashir, they would have supported it. The African People’s Convention was also against it, while it was supported by the rest of the opposition parties.

ANC MP Jackson Mthembu listed the reasons under which a president can be removed by the house and said the Bashir matter was not a Zuma matter but a government one.  “There is no constitutional or parliamentary basis for such an ad-hoc committee to be established. President Zuma remains unbroken.”

He accused the DA of moving to the EFF’s gutter politics.  Deputy Minister Jeffery said only a court of law and not Maimane could decide whether the department was in contempt of court.

“The issue is not around whether we support genocide or not.”  He then turned to Maimane and said he did not know the Constitution.

“But all of this is probably not surprising, given that the leader of the opposition was fast-tracked into the limelight by Helen Zille and has little over a year’s experience in Parliament.”

He said Maimane was in it for the headlines.  “Honourable Maimane is a hollow man presiding over a hollow party. A party which is, as Business Day called it, all bright lights and hashtags. A hollow man, presiding over a hollow party, devoid of substance.

“This motion and the establishment of an ad hoc committee is yet another DA-pipedream, another empty promise, another empty DA headline. There is not an iota of substance to it.”

South Africa – court rules on power of community power in customary law

Mail and Guardian

Since the ruling communities under traditional leadership are seeking ways to introduce democracy into their existing systems.

The Constitution handbook. (Madelene Cronje, MG)

Customary law is coming in from the cold. Important judgments delivered this month show the courts supporting, as valid law, community practices that shun patriarchal, antidemocratic and elitist elements often synonymous with customary law, and that move towards a society based on constitutional values instead.

One of these landmark decisions came from a full bench of the high court in Bhisho, epicentre of a strongly traditional society with deep customary law roots.

At the heart of the case was a dispute over who should replace headman JH Fani in the Cala Reserve when he retired.

On the one hand stood the Cala community and the “planning committee” whose members were appointed by Fani as his advisory body. Committees such as this have long been associated with the headmen of the area and its members called a community meeting to discuss Fani’s successor.

During debate it became clear that the man who had acted as Fani’s de facto deputy, Gideon Sitwayi, was favoured by the community and he was duly elected. However, when Fani and a member of the planning committee tried to report Sitwayi’s election to the amaGcina Traditional Council the reaction was far from what they had expected.

Affronted by democratic choice
Although the people of Cala Reserve have chosen their own headman for more than a century the traditional council and its leadership were affronted and angry that someone was chosen by the people themselves, rather than by the traditional council. They acted “unlawfully” they were told, and the traditional leadership would go to the reserve to “introduce” the person they had decided would replace Fani.

It became clear that another reason the traditional council did not want Sitwayi chosen was that he was not a member of the royal family.

When the council arrived to introduce their preferred headman the community was informed there was no question of a meeting, nor any chance for questions: they were there to tell everyone who the new local leader would be. The chief said that whether the people of the area liked it or not, “it is the royal family that decides on the headman”, and that while the people of the area might always have chosen their own headman, a “new law” instructed the royal family to make the choice instead.

That “new law” was the Eastern Cape Act. One of the main tasks of the court in its ground-breaking judgment was to analyse what this law actually said, and whether it in fact prevented the long-standing democratic practices of the Cala Reserve people.

Royal choice
Before the matter went to court however, there was a flurry of letters between all the players, including the provincial authorities, and while this was taking place the royal choice of headman was already being paid a salary and plans for his installation were being made.

No compromise being found, the people of Cala Reserve asked for an interdict: they wanted the inauguration stopped so the courts could consider whether the royal’s choice should be set aside.

That application was granted – but the inauguration went ahead anyway, prompting contempt of court proceedings.

The interdict was followed by a high court judgment, this time reviewing and setting aside the royal decision not to follow the people’s will. Dissatisfied with the outcome, the Eastern Cape premier, the local government and traditional affairs MEC, as well as members of the royal family, appealed to a full bench of the high court.

Writing the unanimous decision of the full bench, Judge Clive Plasket quoted a letter that had set out the case of the royals: “In terms of … legislation it is the prerogative of the royal family … to identify … who will be an inkosana or headman, with no provision stipulating the involvement of the respective community of that particular administrative area.”

Traditional democracy
For the community Professor Lungisile Ntsebeza gave uncontested evidence of the long-standing practices of the Cala Reserve which the court accepted as establishing that for more than 100 years the community had elected its own headman, and that this remains the current practice. The practice checked all the requirements that would allow it to be regarded as customary law.

Provincial legislation on traditional leadership made it clear that this institution was to be “transformed”, said the court, so it harmonised with constitutional principles and derived its mandate “from applicable customary law and practice”. Since it was clearly the living customary law and practice in Cala Reserve for the people to choose their own leader, recognition of that practice by the royal family was required.

During argument, counsel for the provincial authorities and the royal family said the royals were not required to take into account the “popular view of the community” and that “no community consultation is envisaged” in the legislation. Counsel then conceded that the effect of this argument was that the people of the region would enjoy greater democratic rights in relation to choosing a headman under homeland rule than under a democratically elected government.

Community’s choice
The three judges agreed that when the MEC decided to recognise a headman chosen by the royal family even though someone else “qualified in terms of customary law”, the MEC’s choice could not stand. The court made short shrift of the MEC’s claim that the people of Cala Reserve “cannot be expected to be treated differently to other communities”. Provincial law clearly allowed differing ways of choosing candidates, said the judges.

“The intention of the legislature was that the customary practices of each community would guide each royal family in the exercise of its power,” they concluded.

In the end the court awarded costs against the royals and the provincial authorities, ruling that the royal’s choice should be set aside as “tainted by irregularity” and that the community’s choice must prevail.

The decision has been widely welcomed by rural organisations as evidence that a democratic approach to customary law and leadership will be upheld by the courts where local communities have indicated this is their preference.

Legal Resources Centre attorney Wilmien Wicomb, who represented the community, said since the judgment she had been inundated with calls from traditional communities wanting to know how they could replace their existing systems with more democratic practices.

South Africa – Wits V-C Habib defends suspension of EFF command

Mail and Guardian

Wits Vice-Chancellor Adam Habib took to Twitter to defend the university council’s decision to suspend the Wits EFF command and seven other students.

Wits University's Vice-Chancellor, Adam Habib, has defended the council's decision to suspend the EFF student command. (Paul Botes, M&G)

The decision to suspend the University of Witwatersrand Economic Freedom Fighters Student Command (Wits EFF) and seven other students, came after the Student Representative Council (SRC) election debate ended in physical altercations between members of Wits EFF and Project W – a non-politically affiliated student representative group – last Tuesday.

“We suspended violent students and de-recognised a society only after it broke electoral rules and provoked violence. How is this wrong?” asked Wits Vice-Chancellor Adam Habib. He said Wits EFF was welcome to return to campus if it reconstituted, committed to peaceful engagement and respected the code of conduct.

However, EFF’s national spokesperson and Wits PhD candidate Mbuyiseni Ndlozi said Habib and the Wits council’s decision to suspend Wits EFF was an attempt to shut down new ideas. “You will never shut down any varsity against an idea whose time has come. EFF is here to stay and there is nothing you can do,” said Ndlozi.

This incident played itself out on social media platforms where the conversation soon changed from political parties being banned at public institutions to a lack of transformation at former white universities, especially with regards to the treatment of black students.

Wits PhD candidate Lwazi Lushaba, left with only two months to graduate, was also suspended by the university.

Lushaba said he received a letter from Habib two days after the SRC election debate debacle. The letter said that Lushaba had participated in activities that were not conducive to free and fair elections and were intolerant to a democratic society.

“The University has received reports of various statements made under the auspices of the Wits EFF, the thrust of which indicates a propensity to interfere with proper governance of the University. I attach copies of some of these statements as Annexure A. It appears that you have associated yourself with these statements,” read the letter.

According to Lushaba, the associations made between him and Wits EFF are based on tweets he posted about constructing an alternative discourse and suggesting different motifs with regards to debates about decolonising, the black lived experience and memory-making. He had argued (on Twitter) that these issues should lead the debate in contemporary South Africa, a conversation that was joined by some Wits EFF members.

The issue contested on these platforms is that the curriculum in former white institutions should change.  Lushaba also aired his frustrations on Facebook.

“I teach to part-time students a second year course in Politics: POLS 2012 – South Africa Politics and Governance. In the first part of the course, I am expected to read together with the students a number of texts by white doyens of South African Studies. These scholars basically compete with each other in their defence of apartheid as having been a democracy of one form or the other,” said Lushaba.

He said it must chill the spine of every black person to hear such a claim, worse still as it is stated under the cloak of scholarly knowledge.  Lushaba said such views indicated that the lived experience of the black colonised in South Africa did not matter in white scholarly circuits. “This is what we teach black students in 2015,” he said.

In an interview with the Mail & Guardian, Wits politics professor Darryl Glaser said transformation of the institution was the biggest agenda over the last two years. He said there has been a radical stance in which issues relating to new cultural politics and demographics of staff are being dealt with.

“The main issues are the transformation of the syllabus, personnel and the introduction to black thought,” he said. The M&G also spoke to political studies master’s student and ANC Youth League member Tasneem Essop (23). Essop was also a secretary general of the Wits SRC in 2012 and 2013.

She said Wits and other former white institutions of learning haven’t changed. Essop said there is a lack of black staff and the curriculum needed to transform.

“They give us silly reasons as to why there are no black lecturers. We need to develop young black academics for the future. There are no courses on black political thought and what we learn is extremely eurocentric,” she said.

Essop said black South African academics were also less preferred to their African counterparts.

“These white supremacists would rather hear about black consciousness from a Kenyan perspective and not from a South African. It is fine for an African scholar to talk about Kenya but not a black South African to talk about the current oppression in all institutions. Our institutions of learning are anti-black,” she said.

As a result of these contested issues at institutions of higher learning, Lushaba said the commotion expressed by Wits EFF and other student organisations was “fairly proportionate to the intensity or pulse of the political contestation [that] erupted on the stage of the Great Hall, aborting what was supposed to be an SRC Election debate among different contending parties”.

However, according to Habib the suspensions were warranted. “This is now about ideas,” he said, “It is about violence and not being willing to commit to peaceful engagement.”

South Africa – is Zuma finally off the hook over Nkandla

Mail and Guardian

While a new cast of characters have the painful task of figuring out how to further secure Zuma’s rural home, the heat is off the president – for now.

Parliament's ad hoc committee has recommended that further steps be taken to ensure Jacob Zuma's safety at Nkandla. (David Harrison, M&G)

A new security assessment of President Jacob Zuma’s rural Nkandla home is in the works, an assessment various institutions agree will in all likelihood find a need for further work to be done to complete, or supplement, over R200-million worth of upgrades already effected.

Parliament, meanwhile, will in coming weeks finalise its current investigation into Nkandla, with no adverse finding whatsoever against Zuma himself.

The opposition Economic Freedom Fighters asked the Constitutional Court to give Zuma lessons in his constitutional obligations, and marching orders on Nkandla, an application that shows little promise of resulting in a hearing.

And despite rumblings from particularly the ANC in Gauteng earlier this year on Zuma’s handling of the Nkandla saga, those noises appear to have been hushed for at least the time being.

So though former ministers, government officials and an architect still face trouble on Nkandla, Zuma himself appears – at least for now – to be off the hook.

Why more steps?
In its final report on Nkandla tabled for consideration last Friday, Parliament’s latest ad hoc committee on the matter recommended “that the executive ensures that all necessary steps are taken to ensure the safety of the head of state and his family is not compromised”.

Why would more steps be required, almost six years into a massive security overhaul?

“Most of the work is incomplete especially those [sic] that relate to security monitoring of the president’s private residence. Consequently, it is clear that the current security arrangements are insufficient and incomplete,” the committee told the national assembly.

The Democratic Alliance’s Mmusi Maimane questions President Jacob Zuma about expenditure, apparently on security measures for his home in Nkandla. (Photos: David Harrison, M&G)

Various MPs expressed shock that a closed circuit TV system supposedly at Nkandla was not operational when they visited the complex.

The committee is not the first group to assert that Zuma is still not sufficiently secure at Nkandla. Almost exactly a year ago the Special Investigating Unit formally recommended another security review of Nkandla “as soon as possible”, and “noted a number of matters of concern” on security there, although in the name of security it would not disclose specifics.

New assessment
Police ministry spokesperson Musa Zondi this week confirmed plans for a new assessment, but said there were no timelines for the process yet as it would depend on discussions with the department of public works.

The department of public works did not respond to questions.

Nkandla has been the subject of four major security assessments and evaluations since 1999 involving either the South African Police Service and South African Defence Force, or both.

Just how more work on Nkandla can be structured to be legal and in compliance with regulations, who will be willing to do the work and who will take responsibility for such a task are all thorny questions complicated by years of investigations.

Nkandla was declared a national key point in 2010. In terms of legislation governing such points, dating from 1980, work necessary to secure a key point must be funded by the owner of the property or from a special government account set up for that purpose. But in an inter-ministerial report on Nkandla released in December 2013, ministers of the security cluster found that complying with that law would be in conflict with the Public Finance Management Act, a modern law that institutes strict controls on the spending of state money, and leaves little room for special accounts.

Cabinet memo
The security cluster ministers also found upgrades at Nkandla should have been governed by a 2003 Cabinet memo, which requires the president to sign off on security measures to be implemented at his private residence, after those measures are determined by the police and costed by the department of public works.

The Nkandla infrastructure should have been subject to an “immovable asset management plan”, the ministers said, which would quantify ongoing maintenance costs (to which no number has yet been put in various investigations), and the capital costs should be apportioned to “the relevant stakeholders”, signalling potential trouble as the SAPS and defence force argues over who requested and should pay for what.

Parliament’s ad hoc committee, chaired by Cedric Frolick, said earlier that the president did not have to pay back the money already spent on his KwaZulu-Natal home.

The individual functionaries, who will have to implement those steps for a new security assessment, will no doubt be mindful of the fact that a dozen department of public works employees involved in previous Nkandla work are being held personally responsible for failing to follow various rules and prescripts.

Two former ministers, who were ultimately responsible for those functionaries, still face censure.

The project leader for a new assessment will also be aware that the previous project leader, architect Minenhle Makhanya, is being held personally liable for R155-million of state money spent on Nkandla in a continuing matter before the high court in Pietermaritzburg.

Subsequent scrutiny
Various companies and contractors who did work on Nkandla found themselves accused of fraud, poor workmanship, and fleecing the public purse during subsequent scrutiny.

When Police Minister Nathi Nhleko suggested in July that more money would have to be spent on Nkandla, ANC secretary general Gwede Mantashe characterised it as “reckless” in its timing.

These issues will face a set of ministers and technocrats different from those who dealt with Nkandla between 2009 and 2012, but will not be Zuma’s direct responsibility. The only responsibility he will face in the renewed security assessment and its implementation, according to the findings of the various investigations to date, is to assume ethical responsibility for the effective application of state funds. Demanding as much from those intimately involved, and holding them accountable should they fail, will likely satisfy that requirement.

That represents only a temporary reprieve for Zuma, however.

In mid-June, chairperson of the ANC in Gauteng, Paul Mashatile, sought to distance the party from Nhleko’s report, which formed the basis of the parliamentary ad hoc committee’s findings, and the suggestion that more money would have to be spent on Nkandla.

Not the position of the ANC
That was not the position of the ANC, Mashatile said. He was subsequently backed by the party in the province.

Well-informed speculation at the time spoke of a possibility that the ANC would be asked to consider requiring Zuma to pay personally for any new work. Such speculation died down in the two months since, but insiders this week suggested the plan was not yet entirely dead.

Zuma also faces the prospect of a newly empowered public protector demanding, again, that he repay the state for some of the personal benefit he has derived from the Nkandla project. In September the Supreme Court of Appeal will hear a different matter, which has been brought by the Democratic Alliance, that has the potential of declaring Madonsela’s findings to be binding.

And should the Special Investigating Unit’s R155-million claim against architect Makanya fail, the unit has the option of trying to recover the money from those unduly enriched – a group it found to include Zuma himself. – With additional reporting by Qaanitah Hunter and Matuma Letsoalo

EFF goes for the constitutional jugular

The Economic Freedom Fighters do not have a particularly good chance of being heard on Nkandla before the Constitutional Court, but nonetheless in court papers it took the opportunity to express its intense displeasure with Parliament, the speaker Baleka Mbete and President Jacob Zuma.

On August 4, the party finalised papers asking the court to declare that both Parliament and Zuma, in their handling of issues related to Nkandla, had failed their respective duties to uphold the Constitution. That was several days before Parliament’s ad hoc committee on Nkandla tabled its report, and well before Zuma appeared in Parliament to answer, among others, an EFF question about Nkandla – but only one day after public protector Thuli Madonsela said it was up to those who thought her office required protection to do the protecting.

The EFF told the court in its notice of motion that Zuma should be forced to give effect to Madonsela’s recommendations, and the court should declare that Zuma’s failure to do so, and Parliament’s failure to force him to do so, was a failure of their constitutional obligations.

The court accepts direct applications under only exceptional circumstances and at its own discretion. This week, experts said Parliament had not yet formally adopted the ad hoc committee report, which would conclude its Nkandla investigation; the Nkandla matter would be heavily influenced by a Supreme Court of Appeal hearing in September, which itself is likely to be taken on appeal to the Constitutional Court; and that the EFF would be hard-pressed to explain why the Nkandla matter was urgent.

Unhappy: EFF leader Julius Malema.

The experts all agreed that the EFF’s chances of securing a hearing were slim. But the application itself gave EFF leader Julius Malema the opportunity to promise Zuma the party would see him in court – and it gave the party a fresh platform to express unhappiness with not only Zuma but also Mbete. The EFF deputy president, Floyd Shivambu, said in a supporting affidavit Zuma had violated the Constitution, committed a serious constitutional breach, and had undermined the independence and effectiveness of the public protector.

Shivambu said Mbete, though only cited nominally as a respondent to represent the National Assembly, was required to act impartially in her role.

“The experience of the EFF with the current speaker has been that she is not impartial, is prone to procedural lapses, and openly hostile to the EFF.”

To date, the Democratic Alliance has been the party leading the various legal threats and challenges on Nkandla, but it said this week it would not join the EFF in its approach to the court.

The DA’s James Selfe said the party would wait for a determination in its Supreme Court of Appeal case, which is seeking clarity on the public protector’s powers in the matter regarding the SABC’s chief operating officer, Hlaudi Motsoeneng. It is scheduled to be heard in Bloemfontein on September 18.

If the protector’s findings are found to be binding, Selfe said, that would enable a demand for the implementation of her findings on Nkandla.

“The issue regarding Nkandla and Hlaudi Motsoeneng are very similar, except in the matter of Hlaudi Motsoeneng the remedial action recommended by the public protector is very precise,” Selfe said. – Phillip de Wet and Qaanitah Hunter

When Parliament rewrote history

The latest ad hoc committee on Nkandla last week tabled its report for consideration by the National Assembly, with every sign that the report will be adopted by Parliament as a whole – despite the fact that it contains several blatant and critical factual inaccuracies.

In several instances the committee (officially titled “Ad hoc committee to consider the report of the minister of police in reply to recommendations in the report of the ad hoc committee to consider the report by the president regarding security upgrades at the Nkandla Private Residence of the president”) accepted assertions by Police Minister Nathi Nhleko that are flatly contradicted by documents.

Facts accepted by the committee, with its stamp of approval either directly or tacitly, include that:

  • Nhleko could find zero evidence that President Jacob Zuma had “requested anything to be constructed” in his perusal of “all reports related to” Nkandla. In her March 2014 report on Nkandla, public protector Thuli Madonsela relates that Zuma personally told her he had “requested the building of a larger kraal”;
  • The figure of R246-million spent on Nkandla was a cost estimate “by the media and opposition parties”. The R246-million number actually came from Madonsela’s report, in which she “conservatively estimated” that to be what would be required from state coffers before the project is completed, based on work that still had to be done at the time. The actual number (incorrectly rounded down instead of up by Madonsela herself) is R246 631 303.04;
  • Implicitly, the only “alleged non-security features” at Nkandla are the swimming pool, animal enclosures and a social node. The Special Investigating Unit, in a report on an investigation commissioned by Zuma, pointed to roads built for the sole use of the Zuma family, air conditioning installed in family residences, and extensive landscaping around the private residences; and
  • Nhleko’s status as a Cabinet minister does not oblige him to “make favourable judgments towards the president” because the president also appoints people such as judges to their positions.

The committee apparently did not notice that it requires a two-thirds majority of the National Assembly to remove the likes of a judge (and similar presidential appointees) from office, whereas a Cabinet minister serves at the absolute pleasure of the president and is specifically denied any security of tenure.

Consideration of the report by the National Assembly was yet to be scheduled as the Mail & Guardian went to print, but was expected before the end of August.

Both the DA and the EFF were expected to vote against its adoption, as are the African Christian Democratic Party and Freedom Front Plus, but the vote would be easily carried by the ANC, which has welcomed the report as tabled. – Phillip de Wet