Opposition misread Madonsela’s report

Zuma suggested that the DA and the EFF may have erred by not launching a legal challenge directly to Police Minister Nathi Nhleko’s report that relieved him of any obligation to refund the state.

Nhleko’s report was adopted by the National Assembly in August. It, however, spurred both opposition parties to go to court to compel Zuma to comply with Madonsela’s findings in her report on the security upgrades to his private Nkandla residence that cost more than R200 million and included a swimming pool, cattle kraal and chicken run.

“Rather than launching a review, the DA, like the EFF in their application are constrained to contend that the exercise the PP directed excluded any consideration of whether the specific items were security related. This is a fundamental misinterpretation on a plain reading of the PP report.

“The PP report did not say and could not mean that security considerations did not play any role in the provision of the specific items. Nor did it say and nor could it mean, that I must unquestioningly, as an individual, pay for the specific items.”

The DA has made the point repeatedly, and did so again in an affidavit filed to the Constitutional Court on Friday, that Madonsela did not in her report instruct Zuma to decide whether to repay any money, but to work out, with the help of the police service and National Treasury, how much he should refund.

In August Madonsela went on record saying Zuma had misread her report, as she never directed him to bring Nhleko into the process.

“I further place it on record, as I did with the President, that the appropriate paragraph … actually asks the President himself to make the determination with the help of Treasury and the South African Police Service.”

But the President argued in his papers that he deliberately removed himself from any decision-making role in the process.

“It would hardly be appropriate for me to do such calculations on my own, given that I would then (correctly) have been accused of being ‘judge and jury in my own cause’.”

Zuma therefore assigned this task to Nhleko who found that all features added to his rural home served a security purpose.

Given the outcome of the police minister’s study of the matter — which concluded inter alia that the swimming pool doubled up as a fire fighting reservoir — Zuma said “there was no question of quantum for me to refer to Treasury”.

“It is for this reason that … I required that the minister of police should undertake an exercise to determine which of the upgrades (if any) were not related to security.”

“Put differently, on a plain and common sense interpretation of the PP’s remedial action, I have complied with the PP report.”

The Constitutional Court is set to hear the applications by the DA and the EFF in early February.

In its papers, the DA relies in part on the Supreme Court of Appeal’s ruling in the Hlaudi Motsoeneng case in October. That court warned that no person may reject the Public Protector’s findings in favour of those of a parallel investigation.

The party argues that that is what the President did with the Nhleko report.

In his submission, Zuma did not venture an opinion on the extent of the powers of the chapter nine institution. Instead he said that this is currently the subject of a debate, but whatever its outcome, with regard to Nkandla, Madonsela’s finding cannot constitute a ruling.

“I deny that in the circumstances of this case, the PP report could be interpreted as a ‘ruling’.”