After almost two years and a bitter fight in Parliament that culminated in EFF MPs being dragged from the National Assembly as they demanded that he “pay back the money”, President Zuma has offered to do just that.
Analysts say the president “blinked” because he realised he would lose next week’s court case.
In a letter addressed to the registrar of the Constitutional Court, which is to hear an application by the EFF and DA for direct access to it to rule on the Nkandla matter next Tuesday, Zuma has proposed that the auditor-general and Treasury determine the reasonable cost of non-security upgrades by the state at Nkandla and the reasonable proportion of this amount for him to repay.
“To achieve an end to the drawn-out dispute in a manner that meets the Public Protector’s recommendations and is beyond political reproach, the president proposes that the determination of the amount he is to pay should be independently and impartially determined,” the presidency said.
The move was announced in a statement late on Tuesday night, just more than a week before the president is to deliver this year’s State of the Nation Address.
Professor Steven Friedman, director of the Centre for the Study of Democracy, said the most obvious reason for Zuma’s surprise offer to pay a portion of the Nkandla costs was that he was facing a court case he might lose.
While commentators would be tempted to draw all sorts of political conclusions from the president’s change of heart, after he had been adamant up to now he would not pay anything because he had not requested any of the upgrades at his home, Friedman said the problem was that people assumed “what is going on in their heads is also in the president’s head”.
But this was not necessarily the case.
While there was a sense that Zuma had been weakened by the fiasco that followed his firing of then finance minister Nhlanhla Nene in December, the scenario was similar to the Arms Deal case brought by Terry Crawford Browne, in which Zuma capitulated and agreed to establish a commission of inquiry into the matter at the 11th hour.
It was likely his lawyers had advised him to make an offer before Tuesday, Friedman said.
EFF leader Julius Malema was expected to hold a press briefing on Wednesday.
The party said late on Tuesday night it was not prepared to comment at the time of publication.
The DA also announced it would give its reaction after meeting its legal counsel.
It said the wording of Zuma’s offer was “carefully non-specific, and the DA will not enter into any settlement that would effectively undermine the remedial action expressly prescribed by the Public Protector”.
Nevertheless, the party considered the offer to amount to an admission by Zuma that he benefited unduly from the R246m security upgrades to his home.
In a statement today, the DA said its leader, Mmusi Maimane MP, the chairman of federal executive, James Selfe, and its spokeswoman for Justice, advocate Glynnis Breytenbach, would meet its legal counsel.
Advocate Paul Hoffman, director of Institute for Accountability in Southern Africa, said Zuma had finally “blinked” in the running saga over the costs on Nkandla.
“He has been advised that the decision of the Supreme Court of Appeal in the dispute between the SABC and the DA over the chief operating officer in which judges found that when the Constitution says that the public protector is entitled to take appropriate remedial action, it means she is entitled to take appropriate remedial action and that he would therefore lose the argument about whether he is entitled to get his appointees in cabinet to second guess the report of the public protector,” he said.
Hoffman said the remedial action the public protector called for required that the president must take steps with assistance from Treasury and the police to work out what the reasonable value of the security enhancements are.
“The visitors’ centre, the amphitheatre and the swimming pool are not security. It’s about working out what is security and what is not.”
Hoffman said the taxpayer was the big winner because the state would get money back from Zuma, the architect involved and officials who let the upgrades balloon to R250 million.
Parliament has made it clear no points of order or privilege will be entertained during the address following the adoption of new joint rules for the National Assembly and National Council of Provinces, pre-empting the tactic employed by the EFF last year to interrupt Zuma.
“It will now be for the court to decide if the offer is an appropriate basis for an order when the applications are argued,” Zuma’s statement said.
He specifically limited his offer to the five items listed by Public Protector Thuli Madonsela in her report, Secure in Comfort, as being non-security related – the swimming pool, visitors’ centre, cattle kraal and chicken run and amphitheatre.
He also noted that he “remains critical of a number of factual aspects and legal conclusions in the report”.
In a report to Parliament which was endorsed in the final report of the ad hoc committee established to deal with the Nkandla saga, Police Minister Nathi Nhleko concluded last year that all the upgrades, including those listed by Madonsela, had a security purpose and that the president therefore had nothing to repay.
But, after a Supreme Court of Appeal ruling in a case relating to the appointment of Hlaudi Motsoeneng as chief operating officer of the SABC, which found that public protector remedial actions were binding unless overturned by a court, the DA argued in court papers that the appointment of the police minister to investigate the question amounted to a parallel process to that of the public protector.
The EFF contended that Zuma had failed to comply with his obligation to uphold the constitution by rejecting Madonsela’s remedial action, and that Parliament had failed its constitutional duty to hold him to account.
Zuma said in the statement his offer to allow the auditor-general and Treasury to determine the sum for him to repay was in response to the DA’s objection to the involvement of the SAPS, which Madonsela had said should assist in the process.
Madonsela’s report also said “the amount in question should be based on the cost of the installation of some or all the items that can’t be conscionably accepted as security measures”, which included the five items specifically listed.
Her use of the word “including” leaves open the question of whether other items could be added to the list, while Zuma has limited his offer to pay to only those five.
The need for a costing exercise to determine the reasonable portion for Zuma to repay reflects Madonsela’s acceptance that contractors delivering the project grossly inflated prices, meaning what was paid by the state was not a reflection of the value of the upgrades.
While Zuma’s statement says her report “specifically found no wrongdoing of any kind by the president”, it did find he was in breach of the Executive Ethics Code and his constitutional duty to protect public resources in “tacitly” accepting the undue benefits he received.
The public protector’s office said it planned to release a statement later on Wednesday.