PRESIDENT Jacob Zuma "unduly benefited" from upgrades to his private Nkandla residence in KwaZulu-Natal, Public Protector Thuli Madonsela has found, and will have to pay back at least part of the spending on improvements to the property not related to security.
Ms Madonsela’s long-awaited, 400-page report on Nkandla, titled Secure in Comfort and released in Pretoria on Wednesday, "conservatively estimated" the value of the upgrades at R246m, following her probe.
It also said the president should have questioned the scale, costs and affordability of the upgrades.
Ms Madonsela said Mr Zuma had told Parliament that his family had built its own houses, the state had not built any of it and the president and his family had not benefited from the improvements.
In November 2012, Mr Zuma told Parliament: "Let me make one thing quite clear … my residence in Nkandla has been paid for by the Zuma family. All the buildings and every room we use in that residence was built by ourselves as a family, and not by government. I have never asked government to build a home for me and it has not done so, the government has not built a home for me."
"This was not true," Ms Madonsela said on Wednesday, adding that Mr Zuma and his family benefited from a government-built visitors’ centre, a cattle kraal and chicken run, a swimming pool and an amphitheatre, among other facilities.
However, Ms Madonsela said she accepted the "evidence" that Mr Zuma addressed Parliament in "good faith" and "was not thinking about the visitors’ centre but (about) his family dwellings".
"While his conduct could accordingly be legitimately construed as misleading Parliament, it appears to have been a bona fide mistake," she said, and therefore she was therefore unable to find that his conduct violated paragraph 2 of the Executive Ethics Code.
Her report also found that Mr Zuma failed to discharge his responsibility as a beneficiary of public privileges and a guardian of state resources.
Ms Madonsela said it was not unreasonable to have expected the president to act in December 2009 when the news first broke of the exorbitant amount spent on his residence, which stood at R65m at the time.
"His failure to act constituted a violation of paragraph 2 of the Executive Ethics Code and, accordingly, this amounts to conduct that is inconsistent with his office as a member of the Cabinet," the report said.
Mr Zuma has been asked to pay back at least part of the amount that he and his family had unduly benefited. He will need to work with the Treasury and the South African Police Service to determine and pay a “reasonable percentage of the cost” of the Nkandla improvements that were not related to security, such as the visitors’ centre and swimming pool.
The protector also found that a critical service delivery programme was shelved and money diverted to the Nkandla upgrades.
“Funds were reallocated from the inner-city regeneration project and the dolomite risk management programme of the Department of Public Works,” the report said. “Due to lack of proper demand management and planning, service delivery programmes of the Department of Public Works were negatively affected.”
The protector said the conduct of the department violated section 237 of the constitution and the Batho Pele (“People First”) White Paper.
Ms Madonsela found that all public works ministers who occupied the office since 2009 had provided incorrect information on the legal authority for and the extent of the work done on Nkandla.
Her report also said Police Minister Nathi Mthetwa failed to apply his mind when declaring Nkandla a national key point, and his conduct constituted improper conduct and maladministration.
She added that former public works minister Geoff Doidge and Mr Mthethwa could have provided better leadership on the extent and cost of the project. Their failure in this regard also amounted to improper conduct and maladministration.
Mr Zuma is to “reprimand the ministers involved for the appalling manner in which the Nkandla project was handled and state funds were abused”.
Furthermore, security and other items were constructed and installed on state land adjacent to the land occupied by Mr Zuma. This led to another finding of maladministration and unlawful conduct in the construction of Nkandla, and violated the provisions and requirements of the KwaZulu-Natal Ingonyama Trust Act of 1994, which required a proper lease agreement.
Ms Madonsela could not make a finding on whether the renovations to Mr Zuma’s private residence was financed through a mortgage bond.
“I am not able to establish if costs relating to his private renovations were separated from those of the state in the light of using the same contractors around the same time and the evidence of one invoice that had conflated costs although with no proof of payment,” the report said.
The president has been given two weeks to respond to the report.
The release of the report, less than two months ahead of the May 7 national election, has the potential to dent the credibility of the African National Congress’s (ANC’s) presidential candidate, which has led the party to accuse Ms Madonsela of playing politics.
It will not be the first time Mr Zuma faces the electorate with a cloud hanging over him. Corruption charges against him were dropped two weeks before he contested the 2009 polls as the face of the ANC’s campaign, and the party received 65% of the vote.
The ANC on Wednesday postponed its planned media briefing, where the party was expected to respond to Ms Madonsela's Nkandla report. The briefing has been rescheduled for Thursday morning, and it would immediately be followed by another briefing by the ANC Youth League. ANC spokesman Jackson Mthembu said Ms Madonsela's briefing took longer than expected, and that it would also be appropriate to allow government to respond before the ANC did.
Spending at Nkandla: the story so far
In October 2012, two months before Mr Zuma won a second term at the helm of the ANC in Mangaung, Ms Madonsela said an investigation of the upgrades to his residence was under way in response to complaints.
In November 2012, Public Works Minister Thulas Nxesi promised to probe the upgrades, which culminated in an interministerial report that was released to the public in full last year after initially being classified as "top secret".
According to the interministerial report, a security assessment of Mr Zuma’s Nkandla residence was conducted in May 2009 and improvements to the tune of R27m were recommended. It said this amount, however, was a "mere thumb-suck" not based on expert security assessments.
A budget of R38.9m for the project was approved in 2010. In September 2012, a public outcry ensued as media reports revealed R203m in taxpayers’ funds was spent. In the end, the interministerial report found, a total of R206m was spent on the project.
The ANC has punted the interministerial report, which exonerated Mr Zuma. It found that Police Minister Nathi Mthethwa declared Mr Zuma’s residence a national key point in 2010 — and the departments in the government’s security cluster therefore had cause to conduct the security assessments at his residence.
In line with this, a special account should have been registered and opened with the concurrence of the finance minister, and the fact that this did not happen was a violation of the Public Finance Management Act. It further found that the Department of Public Works did not pay "any contractor" for the construction of the houses of the president.
It found supply-chain management prescripts were not complied with in the procurement of goods and services for the project.
Its host of recommendations included referring the report to the Special Investigating Unit and the auditor-general for further investigation of any criminality.
The ANC welcomed the report and, earlier this year, dispatched it to its structures to "explain" the upgrades to rank-and-file members should they raise questions.
Opposition to protector’s report
In November last year, the state approached the North Gauteng High Court to prevent Ms Madonsela from releasing her report. This came as she was waiting to receive comments from organs of state within the security cluster. Public Works Minister Thulas Nxesi, Defence Minister Nosiviwe Mapisa-Nqakula, State Security Minister Siyabonga Cwele and Police Minister Nathi Mthethwa lodged the application but dropped it less than a week later.
On November 29, the Mail & Guardian published a leaked copy of Ms Madonsela’s provisional report, unleashing an onslaught from the ANC and its allies. A public backlash was not far behind — but against Mr Zuma, with a petition and calls for his impeachment.
The leaked report showed Mr Zuma had derived "substantial" personal benefit from the project and had misled Parliament.
Ms Madonsela, said the report, would recommend that Parliament call him to account for violating the executive code of ethics on two counts: misleading Parliament and failing to protect state resources.
The ANC held a media briefing after the leaking of the report, urging the public protector to release her final report "as a matter of urgency" or risk being accused of trying to tilt the balance of power ahead of the upcoming polls — and this has been the ANC line since.
The party at the time, particularly deputy secretary-general Jessie Duarte, insinuated that the leak came from Ms Madonsela’s office. Ms Madonsela hit back shortly afterwards, saying the leaks could not have come from her office and the four security-cluster ministers also had access to it. She believed the integrity of her report was intact, despite the "poisoned environment" around it. She also denied having a political motive.