#PayBackTheMoney: Did Zuma’s heavyweight legal team help him get a discount?

The bombshell at the start of the February hearing in the Constitutional Court in relation to the binding nature of the Public Protector’s remedial action as well as exactly how much President Zuma had to pay back for the Nkandla public splurge-athon was that Number One, after more than two years of kicking back, was suddenly prepared to make several vital concessions.

The president accepted, said his top-drawer senior counsel, Jeremy Gauntlett, that the PP’s remedial action was indeed binding and that ultimately “no reliance” whatsoever should be placed on the elaborate and farcical report compiled by the Minister of Police, Nathi Nhleko and which exonerated the president entirely and absolved him from paying back any of the costs. This was the same report that was rammed through Parliament by public representatives – ANC MPs – hoping to impress the Father Leader.

The thing about lawyers and attorneys is that they are conjurers of sorts. It is they who must sketch for the judge or judges a version of events and it is this ability to construct a compelling and articulate narrative, shaped around relevant legislation, that ultimately convinces others. This is the rare courtroom alchemy that sways opinion one way or another.

Is this perhaps what happened in the March Constitutional Court ruling on Nkandla and the interpretation of what exactly qualified as non-security features that the president would have to repay? The nature of these non-security upgrades would be factored into the final calculation of the so-called “reasonable cost” or portion for which the President is personally responsible. It stands to reason then that the fewer the number of non-security features, the less Zuma would ultimately have to pay.

This week Treasury announced that it had arrived at that “reasonable percentage” – R7.8-million – that the president would have to personally repay within 45 days. Arriving at the sum required that Treasury consult various experts including two sets of quantity surveyors, the South African Institution of Civil Engineering (SAICE) as well as the Association of Quantity Surveyors (ASAQS).

“The approach adopted was intended to ensure that any cost estimates used by the National Treasury in terms of the court orders would be within the limits of acceptable professional practice standards, as assessed by practitioners in the impacted industry,” the Treasury said in a report to the Constitutional Court on Monday.

The panel of experts and Treasury concluded that the reasonable costs of only five items that had been referred to in Chief Justice Moegeng Moegeng's final order amounted to R8,884,364 (including VAT) as at June 2009 and R11,753,758 (including VAT) as at May 2016.

The final cost to be paid back by the president was determined this way: “In the premises, the National Treasury has taken into account the current use of the lower level of the visitors’ centre by the South African Police Services. As a consequence the reasonable percentage of the estimated costs of the five measures that the president would have to pay personally would be 87.94%. This percentage corresponds to R7,814,155 as at June 2009.”

But did the PP only refer to five non-security features is still the question.

The notion that only five features qualified as non-security was introduced early in February when a statement titled “President Zuma proposes solution to Nkandla case” was issued a week before the Constitutional Court hearing.

The statement, released by then Presidential spokesman, Bongani Majola, states, “President Jacob Zuma has proposed an end to the drawn-out legal controversy regarding the Public Protector’s March 2014 report on Nkandla, ‘Secure in Comfort’. While President Zuma remains critical of a number of factual aspects and legal conclusions in the report, he proposes a simple course to implement what the Public Protector recommended as remedial action contained in the report.”

By then Zuma had already consulted with Gauntlett (as well as his usual adviser Michael Hulley) who must have pointed out to Number One that it would probably be best for him to back down and agree to pay an amount for the non-security features. The proposal that the statement referred to was directed to the Registrar of the Constitutional Court on the morning of 2 February.

This statement from the Presidency contains two obviously early and inaccurate statements; “[The PP’s report] also found no benefit for which the President could to any degree be required to compensate the state in relation to nearly all aspects of the project. But in relation to five features of the private homestead the report directed a further process to be carried out by National Treasury in conjunction with SAPS” and then later “the Public Protector accepts that only five aspects of the project give rise to a need for any determination. [In this second quote the word “only” appears for the first time and is later to be found in the Constitutional Court order].

We can already trace in this statement the essence of Gauntlett’s later submission to the Constitutional Court.

However, it was Wim Trengove, SC, for the Economic Freedom Fighters, who argued that despite the now unchallenged PP report “quite unexpectedly there is still some debate about what it is that she actually found”.

The remedial action to be undertaken by the President as set out in “Secure in Comfort” in point 11.1.1 on page 442 reads, “Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, AND WHICH INCLUDE Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run, the swimming pool [all emphasis added by DM].

The same issue is addressed on page 68 of the PP report with slightly different wording and punctuation and which indicate that the cattle kraal and chicken run are one installation – in other words, the report singles out FOUR examples, not five. That the cattle kraal and chicken run are one item is also borne out elsewhere in: “Take steps, with the assistance of the National Treasury and the SAPS, to determine the reasonable cost of the measures implemented by the DPW at his private residence that do not relate to security, and which include Visitors’ Centre, the amphitheatre, the cattle kraal and chicken run and the swimming pool.”

Advocate Gilbert Marcus, arguing on behalf of the Public Protector, told the court, “There should be no confusion whatsoever that the public protector has specified five upgrades which she has found do not constitute security upgrades, but that list is not exhaustive and the use of the word ‘includes’ is deliberate.” [emphasis added by DM]

So Madonsela’s own legal team told the court that her use of the word “includes” is intentional but Gauntlett did not agree, arguing that the PP ultimately “ended up in the conclusion of saying 'there are five items I put one side of the line'.”

While Chief Justice Moegeng Mogoeng offered a searing judgment about the abuse of state power and how public officials ignored the Constitution at their peril, he made 11 orders including point three that “the remedial action taken by the Public Protector against President Jacob Gedleyihlekisa Zuma in terms of section 182(1)(c) of the Constitution is binding” and point five, “The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only [emphasis added by DM].

Soon after the ruling lobby group Accountability Now wrote to ANC Secretary General Gwede Mantashe pointing out that “air-conditioning, the sewerage upgrade, paving and professional fees of various kinds that arose because of what the Public Protector rightly calls ‘scope creep’ in the project of the DPW at Nkandla. Indications are that these additional items and features could have cost in excess of R40-million.”

Advocate Paul Hoffman, of Accountability Now, added that the ConCourt orders five and six were “susceptible to an interpretation which is far narrower than the ambit of the ‘Secure in Comfort’ report. There is no basis, in law or in fact, for narrowing down the remedial action required by the Public Protector. None is foreshadowed in the judgment itself. It is possible that the draft orders proposed by the president in the eight days before the hearing of the matter in the Constitutional Court muddied the waters.”

Hoffman was referring here to the proposal Zuma sent to the Registrar of the Constitutional Court a week before the hearing and which was later referred to in the statement issued by the Presidency.

Accountability Now has lodged a complaint with the Office of the Public Protector that the order by the ConCourt was granted in error and “waters down the report rather drastically”.

In a letter to Madonsela Hoffman writes, “We would respectfully suggest that you take the matter of our complaint up with the Treasury and, of course, with the President. If both show respect for the true ambit of your report and construe the provisions of orders 5 and 6 in a way that does not limit the work required of Treasury to the five items set out in order 5, our complaint will be satisfied.”

However, warns Hoffman, if “either of them interprets the orders to mean that the president is somehow magically absolved from repaying a reasonable percentage of all the other measures implemented at Nkandla, over and above the five items set out in order 5, then it will be necessary for you, and possibly the applicants in both matters, to apply to the court to correct the erroneous interpretation of the order upon which the president and/or the Treasury may seek to rely.”

While President Zuma’s friends might be passing round the hat for citizens to bless the President to the tune of around R7-million, the Constitutional Court is yet to rubber-stamp Treasury’s report. The fat lady has not yet sung, or has she? DM

Photo: Mangaung, Free State, South Africa, 19 December 2012. President Jacob Zuma's face features on a truck at the ANC's Mangaung conference. (Photo Greg Nicolson/NewsFire)