Cape Town - It was hard to see the woods for the “decision trees” as Parliament’s ad hoc committee on the Nkandla scandal got down to business this week, before falling apart over the “elephant in the room”.
Opposition parties represented on the committee were ranged against the ANC as they fought over how to frame the debate.
“If you look at all the reports… there is a type of a scheme that permeates all of them. And that is an elephant in the room, and that is the extent of knowledge and consent by the president of South Africa,” said DA federal executive chairman James Selfe.
Opposition parties wanted to establish a hierarchy of reports before the committee – the public protector’s report, the Special Investigating Unit report, the report of Parliament’s joint standing committee on intelligence, and President Jacob Zuma’s report to the Speaker in response.
They argued that the public protector’s report, since it emanated from an independent body, as opposed to the other reports, which originated with the executive, should be considered paramount, and the committee should confine itself to ensuring remedial action contained in this report was implemented.
Top of the list of remedial actions was that Zuma should pay back a reasonable portion of the costs of non-security features, like a swimming pool, air conditioning for his houses and a visitors centre.
But the ANC argued the reports had equal standing, and the committee should go through them all and establish where things had gone wrong in order to make sure the officials responsible were brought to book and loopholes closed to prevent a recurrence.
“All officials that have been implicated, action must be taken, because we cannot have a situation where officials delegate their duties, and even ministers delegate their duties. What is the process in terms of the law? Who is the accounting person? Who is given the mandate to oversee the project who has not done so?” asked ANC MP Mmamoloko Kubayi.
This faultline was at the heart of the dispute, which led to opposition parties withdrawing from the process on Friday, saying it was clear the ANC was trying to dupe them into collaborating in a cover-up for Zuma.
ANC MP Francois Beukman said the committee could simply follow the “decision tree” of how things were supposed to have been done, contained in a cabinet memorandum of 2003, in order to identify what had gone wrong, as the project escalated from an initial cost estimate of R27 million to an eventual R216m.
“There was a spectacular failure of those institutions (the SAPS and the Public Works Department, among others) to stick to the decision tree, and if we are going to go later to recommendations, how can we as a committee advise Parliament on the way forward? We really would have to look at how can we strengthen this decision tree to ensure there is compliance with the relevant regulations, and that the officials tasked to do it take care of that,” Beukman said.
He said that, of the 10 steps contained in the decision tree, only two had been followed.
But the opposition argued that pinning everything on officials would fail to answer the question of why they had chosen to ignore the legal framework that was supposed to govern their actions by handing full responsibility for designing, costing, implementing and overseeing the project to one man – Zuma’s private architect, Minenhle Makhanya.
They had continued to allow costs to escalate even after overspending was exposed in a Mail & Guardian article of 2009, which was published before any of the state’s construction work had even begun.
“The project starts at R27m, it goes to R65m, then it goes to R216m, and even when the Mail & Guardian exposes that, ordinarily the junior people who are not involved with senior politicians get scared and say, we are exposed, and they tread very carefully,” said Economic Freedom Fighters leader Julius Malema.
“These ones are not careful, even when the matter gets exposed. Why? Because you’ve got the CEO’s approval. You can go higher and higher and higher only if you know you’ve got the ultimate protection.”
He said that, even if it was argued that Zuma was not informed of the costs, media coverage of the issue should have alerted him to the scandal unfolding at his home.
“Here is the newspaper, exposing the shenanigans that are going on in your yard. Even if you don’t know anything about this company called South Africa, at least your house, at least your homestead – people are stealing public money, using your name, using your house. It gets exposed by the newspapers – you still don’t know,” Malema said.
Opposition parties made three demands: that Zuma and others be called to explain themselves, that the public protector’s remedial actions be implemented without being amended by the committee, and that legal opinion be sought on the enforceability of the public protector’s remedial actions after the ANC argued, like Zuma, that they were recommendations only and didn’t have to be rubber-stamped by Parliament or the executive.
The failure to agree on any of these led to the opposition abandoning the process.
Now the committee, which still has a quorum with only the ANC members present, will continue its work on Tuesday, starting with following the decision tree.
Both Public Protector Thuli Madonsela and the SIU have already proposed steps to close the loopholes in the process that should have been followed, and the SIU has already begun the process of pursuing the officials who failed in their duties and an attempt to recover the state’s losses through a civil claim of R155m against Makhanya.
But simply trying to strengthen the “decision tree” will not prevent officials from deliberately ignoring it in future, if they feel they have been instructed by their political principals to do so.
While Kubayi argued that accounting officers were obliged under the Public Finance Management Act to request in writing any unlawful instructions from their superiors, officials involved in the Nkandla scandal repeatedly told investigators they had been ordered to keep their work secret.
They went as far as deliberately not keeping records, and in some instances the paper trail was erased, in order to prevent discovery.
Failing to call these officials to explain who gave them these instructions would ensure only they were held to account.
Political Bureau