Nkandla: National Key Points Act could be used to thwart Zuma’s #Paybackthemoney discount

So far it appears there are few who are prepared to dig deep and bless Number One with at least some of the R7.8-million he has been ordered by Treasury to repay taxpayers. This after the Constitutional Court found that the President of the Republic of South Africa is indeed duty-bound to refund some of the costs for the over R200-million renovation of his private home once secretly known as Prestige Project A.

Nkandla, the scandal and the feeding frenzy in what amounted, in the end, to a sort of Presidential Ponzi scheme set up to benefit a veritable crowd of unscrupulous contractors, ministers, government officials, architects (and no doubt a few opportunistic fowl and cattle), has metaphorically soaked up oceans of media ink. Nkandla will become that by which we shall know and remember Jacob Gedleyihlekisa Zuma. That and the fact that the Marikana Massacre happened on his watch.

In 2013, around 12,o0o pages of documentation was released to amaBhungane after the PAIA application. One of the lawyers who represented the investigative unit was Ben Winks who has been keenly observing the Nkandla scandal as it chugged its way through sham task teams and alternative government reports, finally hitting the wall when the Constitutional Court found the Public Protector’s report is binding.

And while Winks reckons many of the documents have been available in the public realm, some are worth scrutinising for what they throw into stark relief, considering the relatively minor amount President Zuma has been ordered to repay.

One such enlightening document is a National Key Points Act Declaration issued in 2010 by then Minister of Police Nathi Mthethwa, bestowing on Nxamalala in the Nkandla Reserve the magical status of National Key Point – a building that may not be seen, photographed or visited by mere mortals.

In the declaration Mthethwa draws Zuma’s attention to specific provisions in the Act, pointing out that “you are the owner of a declared national Key Point”. As such, says Mthethwa, Zuma is required to pay ALL security costs.

And so the new guard came to use the tools of the old, a 1980 apartheid law aimed essentially, says Winks, at coercing the private sector into facilitating and funding the SADF’s covert war on the ANC back in the bad old days.

“The National KeyPoints Act speaks for itself,” says Winks, “The default position is that the property owner pays for everything, unless the Minister of Police makes a special determination that the state will pay, and makes a special appropriation from Parliament for that purpose. Neither occurred in respect of Nkandla.”

In the Declaration, dated 8 April 2010, Mthethwa informs Zuma that “in terms of Section 24D of the Income Tax Act, you can submit a claim for tax deduction in respect of expenditure occurred on security measures and implemented at your National Key Points”.

So, theoretically, if President Zuma had gone about this another way – let’s say asking some close friends to chip in for the security costs, he could have asked for a refund of much of the over R200-million from SARS.

Writing on the history of the National Key Points Act, Winks points out that the purpose of the draconian legislation was apparent to the ANC in the past.

Addressing an international business conference in London in 1987 the then exiled Oliver Tambo described the practical implementation of the Act, saying that “hundreds of installations and areas have been designated national key points under the National Key Points Act. Owners of these factories or plants are required to train and equip their own militia. Usually, but not always, made up of white employees, these are trained in ‘counter insurgency and riot control’.”

These companies provided access for the SADF and also incorporated their own militia in regional “so-called defence planning”. Owners of “Key Points” also provided storage facilities for arms.

Tambo argued against superficial reform of the act, saying it was a stratagem President PW Botha used “to retain control over the lives of our people, to arrest the process leading to fundamental change and to steer this process away from the fulfilment of our people’s aspirations”.

The current ruling party has twice redrafted the act, in 2007 and 2013. In 2014 Zuma informed his trusty new Minister of Police, Nathi Nhleko, compiler of the discredited Nkandla Report, that he should expedite the legislative review of the National Key Points Act.

The second document to emerge from the 2013 PAIA application is, says Winks, “more circumstantial”. It is a 2011 DPW memorandum which reveals that President Zuma personally imposed secrecy and urgency on the project. This secrecy was, reckons Winks, to blame for the 1,000% cost inflation occasioned by deviation from procurement prescripts.

The 2011 document, a “request and motivation to enter into a negotiated contract with the contractor Messrs E Magubane CC” about “Durban: Prestige Project ‘A’: Phase II Security Measures: Electronic Detection System” to the Acting DG of Public Works and from Durban Regional Manager Kenneth Khanyile provides some early background and clarity.

Khanyile writes that the “scope of the project is to provide security measures at the houses of the Principal” and “the nature of the project is that it is not advisable to utilise the open or nominated procedure”.

And then the paragraph that proves that Zuma knew about the project from the start:

Khanyile provides reasons for the need for secrecy stating, “The site not owned by the State and the instructions of the owner must be respected. Instructions were given that as little information about the site may be distributed due to his own privacy and security.”

Khanyile continues, “The project must be completed by October 2011 as per instruction from the Principal [Zuma].”

The “negotiated process”, he says, would “expedite the procurement of the works as no time period of 2 to 4 weeks would be needed by the tendering contractors to obtain prices and quotations for the works”.

And so the floodgates opened and by the time it all came crashing into public view over R200-million of public money had been spent and Nkandla grew from few modest rondavels into a KwaZulu-Natal Xanadu.

Says Winks, “By my calculation, Zuma is liable for the whole R246-million, both under statutory law (the National Key Points Act) and the ordinary law of delict (as he wrongfully and at least negligently caused the loss).” DM

Photo: President Jacob Zuma at the presidential guesthouse in Pretoria on Friday, 20 February 2015. Picture: Werner Beukes/SAPA

Read More:

• Did Zuma’s heavyweight legal team help him get a discount? in Daily Maverick