President Jacob Zuma claims, in an affidavit, that he has complied fully with the remedial actions of the public protector in her Nkandla report.
Responding to an application by the DA for it to be granted direct access to the Constitutional Court in the event the EFF’s similar application is granted, Zuma said he had complied, and continued to comply, with Public Protector Thuli Madonsela’s “Secure in Comfort” report.
He said her instruction that he should, with the assistance of the National Treasury and the SAPS, determine the reasonable portion of the costs of non-security items for him to repay required the involvement of third parties other than himself.
“This means that it is permissible (or ‘rational’ to use the DA’s word) for other efforts to be initiated and operate in response to the PP report - and indeed, for the reasons already given, it is necessary to do so if the remedial action of the PP is to be rationally and fairly implemented,” Zuma said in his answering affidavit.
This justified his instruction to Police Minister Nathi Nhleko to determine whether or not he should repay any of the money spent on Nkandla.
Part of determining the reasonable portion had to include a consideration of which measures constructed by the state at Nkandla did not relate to security, Zuma said.
“It is, in my submission, relevant to the very issue of a ‘reasonable portion’ whether such expenditure was not security-related as opposed to prime features of security,” he said.
At the heart of the dispute lies the question of whether Nhleko’s report on Nkandla represents a “parallel process” to Madonsela’s investigation.
Both the Supreme Court of Appeal and Western Cape High Court have ruled that an organ of state may not institute a parallel process and accept its findings in place of those of the public protector. Nhleko found the items specified by Madonsela as being non-security-related - the visitor’s centre, amphitheatre, swimming pool, cattle kraal and chicken run - were security items. He said this meant there was nothing for the president to repay.
The DA, EFF and other opposition parties contend Madonsela had already made a finding that these were not security features and Zuma could not substitute Nhleko’s verdict for hers.
In a replying affidavit to Zuma’s, chairman of the DA federal executive James Selfe said this finding was contained in the body of Madonsela’s report, and “(if) she required a re-determination of the issue, her remedial action would conflict with the findings made and recorded in the body of the report”.
Madonsela herself has made it clear she does not believe Zuma has complied with her remedial actions, writing to him three times in an attempt to get him to do so.
In a media statement in May, she also dismissed Nhleko’s report, saying it contained “misstatements, inaccuracies, incomplete information, innuendos and false accusations” relating to her investigation.
The Constitutional Court has yet to decide whether it will grant the EFF’s application for direct access, which is based on its claim that Parliament failed in its constitutional duty to hold Zuma to account, and that Zuma had failed in his constitutional duty by not implementing Madonsela’s remedial action.
Saturday Star