Johannesburg - The cost to the public of the Nkandla debacle is set to climb well over the R246 million bill for the project itself after the security cluster of ministers announced they would seek a judicial review of the public protector’s report on the matter.
Assuming Public Protector Thuli Madonsela defends the application, it will pit at least two state entities against one another, each footing hefty legal bills in the process, which will ultimately come from the taxpayers’ pocket.
It is also possible the presidency will join the application as an interested party in what could turn out to be a lengthy process stretching all the way to the Constitutional Court.
For example, the known costs to the State of defending the DA’s application for the release of the so-called spy tapes, itself a spin-off of the party’s application for a judicial review of the National Prosecuting Authority’s (NPA) decision to drop corruption charges against President Jacob Zuma, hit R3.6m last year.
Of this, R2.3m was for Zuma’s lawyer, Michael Hulley, to represent the president in the matter. The NPA coughed up R1.3m in costs awarded to the DA at an earlier stage.
Hulley is also retained by the presidency as a special adviser to Zuma at a rate of almost R700 an hour.
The spy tapes matter has dragged on since 2009 and is to be heard again in the Supreme Court of Appeal after the NPA failed to obey a court order to hand them over.
Madonsela, meanwhile, finds herself set to defend three separate applications for judicial review of her findings – the Nkandla matter, her report on the Independent Electoral Commission lease debacle involving its chairwoman Pansy Tlakula, and her report on the fisheries patrol contract.
This is likely to tie up the public protector’s office in lengthy, and costly, legal proceedings.
Madonsela’s spokesman, Oupa Segalwe, said on Friday it wasn’t possible to estimate the costs at this stage but they were likely to run into millions.
For example, the public protector’s cost in the urgent application brought and later withdrawn by the security cluster ministers during the Nkandla investigation had been in the region of R600 000, though the ministers had been ordered to pay for this.
“It will be substantially more in a review application that runs its full course,” Segalwe said.
Less than R1m from the investigations budget had been made available, but this would not cover the costs of defending the review applications.
“Moneys allocated in our budget for our core operations will therefore have to be used, which will impact negatively on the service that we will be able to render.”
On top of this, Madonsela and members of the investigation teams involved in each matter would have to participate in preparing the court papers and consulting attorneys and counsel. This would take up time that could have been used to investigate other complaints.
Constitutional law Professor Pierre de Vos wrote on his blog on Friday that it was “difficult to see” a basis in law for the decision to review the Nkandla report and it was therefore “almost certainly” a move to protect Zuma.
“Even where the investigation and the findings of the public protector could be faulted or even where reasonable people could differ on whether the conclusions reached by the public protector in a report were correct, this will not render the report invalid.”
A court could set aside Madonsela’s findings only if it concluded no rational person could possibly have made the findings contained in the report – based on the facts revealed in it.
De Vos said he thanked his “lucky stars” that he was not “the lawyer tasked with trying to convince a court that the public protector’s report on Nkandla must be set aside because it is irrational”.