Advocate Soni: The case against Makhanya was NOT designed to collapse

Outgoing head of the Special Investigating unit, Advocate Vas Soni, feels passionately that the R155 million civil claim instituted by the independent statutory body against President Jacob Zuma’s architect Minenhle Makhanya for the overspend on his Nkandla residence was the right thing to do.

Soni vigorously dismisses suggestions that the case against the strangely silent Makhanya was designed to collapse around the issue of his lack of access to classified documents.

“Let me just say that I am distressed that such a suggestion can be made,” Soni told Daily Maverick. “The suggestion is that there was never an intention to bring the wrong-doers to book. I can say to you that that is false. Not only incorrect, it is false.”

Doubts around the case surfaced after the Director-General of the National Department of Public Works Mziwonke Dlabantu submitted an affidavit to the Pietermaritzburg high court last week, stating that he would not release classified documents sought by Makhanya.

The architect had asked for access to certain Nkandla classified documents belonging to the South African National Defence Force and the South African Police Service, as he said he needed them to defend himself against the huge claim.

Makhanya's attorney Barnabas Xulu then told Daily Maverick that in the absence of his client being given access to the classified documents, the case could eventually be thrown out of court.

Advocate Pikkie Greeff, national secretary of the South African National Defence Union, took to Twitter to air his view on the case after the story broke.

“Becomes even more and more clear that the entire ‘case’ against Nkandla architect was designed to collapse on the back of classified documents,” Greeff tweeted.

Soni, who is in the process of a handover at the unit, said it would be unbecoming of the institution to comment on the case, beyond to say:

“I would be, and I think all the investigators involved, would be devastated if what is being suggested, would happen (case thrown out of court.) At the end of the day, our Constitution requires different institutions to do different things. It requires us to investigate matters that are taken to court. It requires courts to make decisions on the matters that are brought before us. I am not going to comment, I have taken the matter to court. I am not going to comment on the prospects of Makhanya succeeding with his application. That is unbecoming of an institution. The court must make a decision. I can say to you that I have every intention, to the extent that it depends on me, to ensure that Makhanya pays every cent that the court says he is required to pay.”

The application against Makhanya was not one that had been made lightly, stressed Soni, and it explained particularly why the unit targeted Makhanya.

While the Special Investigating Unit found that Zuma was enriched by State-funded improvements to his Nkandla home in KwaZulu Natal, it placed the blame for the ballooning of the project on Mkhanya’s “unacceptable extravagance,” it stated in its report tabled in Parliament last year.

Unlike the Public Protector Thuli Madonsela, who said in her report Secure in Comfort that Zuma was liable to pay a portion of the cost, the Special Investigating Unit concluded the best way of recovering the cash was from Makhanya.

According to the unit’s findings, Makhanya increased the scope and extent of the works by designing and authorising items that were not required for security purposes. As a result, it stated the costs of the project had soared from an initial estimate of around R27 million to around R216 million.

While the Special Investigating Unit faced the choice of claiming the damages and losses from a number of people who were enriched, or to seek to recover the full amount from Makhanya himself, it chose the latter option.

Public perceptions that Makhanya might be a willing scapegoat for the President were fuelled by the fact that Madonsela found he was introduced to Public Works by Zuma, and his appointment as principal agent and architect was made by Public Works without being put out to tender.

Makhanya has been seen by some as a fall guy along the lines of Bruce Koloane, the Chief of State Protocol in the Department of International Relations and Co-operation, who was “demoted” after a Gupta family chartered jet was allowed to land at Waterkloof Air Force base in 2013. Koloane pleaded guilty to a number of charges at his disciplinary hearing, after he was said to have conned South African Air Force officials into thinking it was an official VIP flight approved by Number One, the military’s code-name for the president.

Less than a year after his demotion, Koloane was a given a plumb posting by Zuma as South Africa’s ambassador to the Netherlands.

Makhanya’s own feelings around his unusual predicament are hard to pin down, as he has given no media interviews, and attempts by journalists to speak to him at his pig-farm in KwaZulu Natal or at his architectural offices in Pietermartzburg have been unsuccessful.

Soni came to the hot seat at the Special Investigating Unit a year after he was unceremoniously removed in 2012 as chief evidence leader of the Arms Procurement Commission, which was set up to investigate the 1999 multi-billion arms deal splurge in which Zuma was implicated.

While Cosatu released a statement saying it was pleased Soni had resigned, and listed some staff grievances against him, others are concerned at his departure. Insiders at the unit are particularly worried about who will replace him at the corruption-fighting unit.

Soni's successor has not yet been named, but among the names being bandied about as his rumoured replacement is that of controversial deputy national director of public prosecutions advocate Nomgcobo Jiba, and the director-general of the Justice Department attorney Nonkululeko Sindane.

Soni will be leaving the Special Investigating Unit next Friday, and is keen to dispute any lingering doubts about the unit’s case against Makhanya before he goes.

The Special Investigating Unit is dedicated to ensure good governance, Soni explained, and is not afraid to target anybody it finds guilty of maladministration.

“Look at our records over the last year of who we have taken to court. Whether these cases succeed or not is not a matter for me to determine,” says Soni. "We do the best we can do as an institution to investigate maladministration, and take the best possible case to court. We don’t bring the cases ourselves, and that is why we hire outside lawyers. I have no doubt that they would want to protect their reputations, by ensuring that the matter succeeds.” DM

Photo: Advocate Vas Soni was interviewed by eNCA in his Sandton offices on 03 September 2013. (Photo: Dianne Hawker for eNCA.)