Really, #Paybackthemoney: Semantics drive fears Zuma will short-change taxpayers

One of the the rulings of Chief Justice Moegeng Moegeng and a full bench of the Constitutional Court was that President Zuma pay back an amount for non-security upgrades to his private residence at Nkandla and which was to be determined by the Treasury within 60 days of the 31 March judgment. After that President Zuma would have 45 days to repay taxpayers.

Some of those non-security upgrades included those listed by the Public Protector Thuli Madonsela in her report into the Nkandla splurge and titled “Secure In Comfort”. By now we all know that these are the infamous “fire” pool, the visitor’s centre, the amphitheatre, the cattle kraal and the chicken run.

But there are more upgrades, says Accountability Now, part of the “scope creep” of the massive project and that that could also be considered as “non-security” items including air-conditioning, a sewerage upgrade, paving and professional fees “of various kinds” that also need to be repaid.

And it is these extra charges Accountability Now fears that might not be included in Treasury’s estimation of what the president needs to repay because the wording of the Constitutional Court judgment has been “erroneously and illegally” altered.

“Indications are that these additional items and features could have cost in excess of R40-million. While the Constitutional Court has very properly and correctly described the remedial action ... as binding and enforceable, its orders relating to the remedial action required of the president by the public protector are in effect a dilution, probably to a value measured in millions of rand, of the public protector’s requirements,” Advocate Paul Hoffman of Accountability Now says.

On April 4 Hoffman wrote to ANC Secretary-General Gwede Mantashe and Public Protector, Thuli Madonsela, highlighting a concern with regard to “difficulties in interpretation of the judgment which may impact negatively on the enforcement of the remedial action ordered by the public protector in clause 11 of her 'Secure in Comfort' report on the security enhancements at Nkandla.”

During a televised press conference on 1 April after the judgment, Mantashe had invited the public to engage with the ANC with regard to the implications of the judgement. It was an offer that Accountability Now took up but a month later, while the organisation had confirmed that Mantashe had received its letter, the ANC SG is yet to reply.

The relevant clause 11.1 of the public protector’s report 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 … [and] … Pay a reasonable percentage of the cost of the measures as determined with the assistance of National Treasury, also considering the DPW apportionment document.”

However, says Hoffman, two clauses, Five and Six, in the Constitutional Court ruling have left out the words “and which include” in the protector’s report and thus can be interpreted not to include other non-security upgrades that are not specifically referred to.

Clause Five reads, “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”; and Clause Six, “The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.”

They both have left out the PP’s words “and which include”

This error, says Hoffman, not only infringes upon the binding and enforceable nature of the remedial action with regard to measures that are partly security related and partly not, such as the professional fees, the air-conditioning (where security or bunker air-conditioning would be security related but the luxury of air-conditioning in housing would not) and will “cost hard-pressed taxpayers a great deal of money which, on any proper interpretation of the ‘Secure in Comfort’ report, ought to be paid by the president.”

Hoffman says it was plain that that it was the intention of the public protector that all of the measures that do not relate to security that were implemented and paid for by the Department of Public Works are covered.

“They would have to be, as the public is only legally liable for security enhancements. The five items listed are obviously set out as examples of the kind of measures that do not relate to security and they are not an exhaustive list on any proper interpretation of the words used by the public protector. The explicit reference to the cost of ‘measures as determined with the assistance of National Treasury’ would be entirely superfluous had the five items listed been intended as an exhaustive list,” said Hoffman.

He said the world “only” in order Five which was emphasised during the oral delivery of the judgment, obviously qualifies the phrase “those measures … that do not relate to security”.

The repetition of the words “those measures” in order Six, says Hoffman, render the orders unintelligible and order Six potentially contradictory of order Five, unless the phrase “those measures” in order Six is read to mean “those other measures” in which event greater fidelity to the content of the remedial action required by the Public Protector would be achieved.

“The error in the orders Five and Six which gives rise to the ambiguity described above is best cleared up by the president himself announcing publicly that he understands orders Five and Six to mean that he must pay the full reasonable costs of the five items listed in order Five and a reasonable percentage of such other measures as do not relate to security as determined by Treasury in order Six,” says Hoffman.

The president’s acceptance of this would “tend to enhance the sincerity of his apology (which has already been criticised as ’hollow’) and it will obviate the need for an application to court to rectify the error or ambiguity we have pointed out above”, Hoffman wrote to Mantashe.

Considering Treasury only has about 30 days left to assess the amount President Zuma has to repay, “there is an element of urgency in clearing up the matter sooner rather than later” said Hoffman.

Treasury told Daily Maverick that “an update will be given in due course” with regard to the status of the assessment of the amount President Zuma owes people of South Africa. DM

Photo: President Jacob Zuma delivers an address at the May Day celebration rally at Moretele Park in Mamelodi, Pretoria, 1 May 2016. (Photo: GCIS)