Nkandla: Zuma may have deliberately misled Parliament in March 2013

(1) Introduction: The DA has over the last week and a half taken every step possible to ensure that all those responsible for the Nkandla scandal – including President Jacob Zuma – are held accountable. We simply cannot allow a scandal of this magnitude – which so clearly implicates a sitting President of the Republic – to be swept under the carpet without a fight. We owe it to our fellow South Africans, our young democracy, and to our beloved constitution to ensure that we re-double our efforts to ensure that there is real and meaningful accountability. This must, and I assure you will, include President Zuma. The Nkandla scandal has resulted not only in the unlawful abuse of public money and the violation of the trust of our fellow South Africans; but it has also undermined the integrity of the Parliament of the Republic of South Africa. The DA has new evidence, which is set out in the document below, which suggests that President Zuma may have deliberately misled Parliament and violated the Constitution and the law. This evidence is unpacked in four sections that investigate: 1. In response to the November 2012 oral question, whether he misled Parliament on his claim that he built his own houses. 2. In response to the November 2012 oral question, whether he misled Parliament on his claim that he financed the upgrade himself. 3. In response to the March 2013 oral question, whether he misled Parliament on his claim that he did not have the details, nor did he receive a letter in November 2010 setting out the details of the upgrade. 4. Whether in failing to cooperate with the Public Protector’s full investigation, he violated the law and the constitution of the Republic of South Africa. In three of the four questions, the answers provided below show that a full parliamentary investigation – which would be given effect to by our impeachment motion submitted on 20 March 2014 – must be initiated; and specifically that the evidence with respect to (3) and (4) would, on a balance of probabilities, be sufficient to prove that President Zuma did indeed mislead Parliament. The DA, as a party represented in Parliament, and committing to upholding its integrity, cannot let this go unanswered. (2) November 2012 Oral Question: On 13 November 2012, I asked President Zuma an oral question in Parliament on the Nkandla scandal. In his response to this question, he made a number of statements before the National Assembly reflecting on both his knowledge and involvement in the nearly R250 million upgrade to his private residence in Nkandla. Some of these comments follow: 1|Page

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“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.” “I was approached to allow security upgrades or enhancements to be made to my Nkandla residence, which was already in existence.” “Any other construction undertaken by government, beyond the premises of my home, such as the accommodation for government security personnel, are not part of my residence.” “I told government that I had my own plan - which was a comprehensive plan – to extend my home. What then happened was that I allowed government to meet with the contractors who were already on site because government, from a security point of view, insisted that they needed to participate." “What government did, given its own considerations of security, was to build other houses beyond my home for the security personnel. These are not shown on television and these are really the government’s houses, but I do not know how much they cost.” “The houses that were built by the government for its security personnel have not been shown. Now, I do not know where this amount of money went to, because it could not have been so much for just these three items.” “I have everything to do with the contractors who are still building my home today. Government only dealt with them to discuss how to install the security features, nothing more.” “What the security has done for security features does not include the houses you have counted. They are neither in my residence nor my home.”

The Public Protector, Adv Thuli Madonsela, duly considered in her nearly two year-long investigation whether some of these utterances made before the National Assembly were misleading, and therefore violated the Executive Ethics Code. In her report, the Public Protector noted that he did not tell Parliament the truth. Adv Madonsela reported that:
“President Zuma told Parliament that his family had built its own h ouses and the state had not built any for them or benefited them. This was not true. It is common cause that in the name of security; government built for the President and his family in his private a Visitors’ Centre, cattle kraal and chicken run, swimming pool and amphitheatre among others. The President and his family clearly benefitted from this.”

She however went on to conclude – insofar as his statement on who paid for his private houses is concerned - as follows: “I have accepted the evidence that [President Zuma] addressed Parliament in good faith and was not thinking about the Visitors’ Centre, but his family dwellings when he made the statement. While his conduct could accordingly be legitimately construed as misleading Parliament, it appears to have been a bona fide mistake and I am accordingly unable to find that his conduct was in violation of paragraph 2 of the Executive Ethics Code.”
The DA respects the authority and the office of the Public Protector. We therefore accept her finding on this point.

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However, there are a number of other statements made before Parliament that have not been resolved, or which were not considered by the Public Protector. I will now address these two respective points, accordingly. (3) The bond on Nkandla: During his reply to my oral question on Nkandla in November 2012, President Zuma said:

“I engaged the banks and I am still paying a bond on the first phase of my home. [Applause.] Even at that time, there were many allegations. If honourable members remember, it is not the first time that my home has been paraded on television. Those rondavels were paraded, accompanied by lots of allegations. Yet, I am still paying a bond to this day.” In her report, Adv Thuli Madonsela notes that she sent a letter to the President to inquire as to whether he misled Parliament by making a false statement about this financing of developments at Nkandla. She specifically requested clarity on the bond, as well as proof. President Zuma never responded to this request. In fact, he declined the opportunity to respond to the allegation that he misled Parliament on this point, and he refused her the opportunity to access his bond documents. Rather, he claimed Parliament is best placed to investigate this matter. Accordingly, because of the lack of information provided by the President himself, the Public Protector did not make a finding on whether he misled Parliament on this point. She notes: “Regarding the allegation that the President may have misled Parliament and accordingly violated the Executive Ethics Code when he announced that the renovations at his private residence were financed through a bank mortgage bond, I am unable to make a finding. Although having established through the Register of Financial Interests that the President has declared a mortgage bond in respect of his private residence at Nkandla since 2009, 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 the costs although with no proof of payment.”
This leaves open the question as to whether President Zuma misled Parliament over his bond. The President must, therefore, still explain to the National Assembly why he did not fully answer the Public Protector on this point and more importantly furnish copies of his bond – as was requested. The special ad hoc or ‘impeachment’ committee will have the power to subpoena this document in the investigation of this matter, and we will expect a full explanation from the President himself on this potential misleading of Parliament. (4) Oral Question: March 2013: Dissatisfied with the answers I received from the President in November 2012, especially in my bid to get clarity on his knowledge pertaining to the developments, I submitted a further oral question for the next oral question session. This was to be hosted in the first term, on 20 March 2013.

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My oral question, as published, read:

Whether the President was informed of the upgrades at his private home in Nkandla in November 2010; if so, (a) on what date and (b) by what means?
Interestingly, I can find no record of this reply being considered by the Public Protector in her report or investigation. It is perhaps the most revealing reply, because it provided insight into whether or not the President was willing to put on record that he was aware of the details of the project – which were of such magnitude that it would be – in my opinion – virtually impossible to ignore. The President made two key points during his reply. The first acknowledged that he was fully aware of the difference between his involvement in his personal renovations to his home, and those being organised by the state:

“In the recent past, and more particularly in the early part of 2008, the family commissioned certain improvements to the residences for its own account. Nobody’s permission was necessary in this regard insofar as it related to the upgrading of a private residence. This right extends to all citizens of the Republic. I was, accordingly, aware of these renovations as they related to my family residence, which was self-funded. It remains a private family matter.” The President then went onto discuss the state ‘improvements’ to his family residence: “Actually, I was informed that improvements needed to be made at the family residence to enhance the security of the head of state. The nature and form of improvements were decided upon by the relevant officials through their departments. As already indicated, such information would not include details on the specifics about what would be done by whom and at what cost.”
This sentence, highlighted above in bold, clearly creates the impression that the specific details of the project were not made clear to the President; that this matter was handled and decided upon only by relevant officials through their respective departments; and that he was merely informed that there needed to be improvements, and nothing more. In a follow up question, I asked the President, directly, whether he received a letter, which had been directed from him, from the then Minister of Public Works, Gwen Mahlangu-Nkabinde - which was made public by the Mail and Guardian and the City Press. This letter clearly set out the details of the project – which included non-security items such as the cattle kraal and the visitor’s centre. The President provided the following emphatic responses:

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“Hon Speaker, firstly, I never received any letter. [Interjections.] [Laughter.] That is a very clear, straight answer. [Interjections.] “No letter was ever received, let alone the fact that when Ministers write to me, they sign as Ministers.”

The evidence:

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There is, however, to the contrary very clear evidence provided in the Public Protector’s report that the President not only had detailed knowledge, but that he was intricately involved.      Officials of the DPW and SAPS met with the President on 12 August 2012 to inform him of security measures that were to be installed (pg. 338). The President stated that at a meeting he introduced his architect, Mr Makhanya, as an architect to senior government officials “and to appraise each other of their respective plans.” (pg. 339) By May/June 2010, the President complained about the slow progress made with the appointment of the implementation of the Nkandla project, which was impacting on his private and family life. Evidence shows that Mr Makanya “supposedly” had discussions with the President about the landscaping of the premises in August 2010 and May 2011. He also presented the President with the design of the swimming pool. Deputy Minister Bogopane-Zulu stated in her evidence that the President supported her idea that the fire pool should be converted into a swimming pool to be used by the children of the village. The evidence further indicates that Mr Makanya apparently discussed the possibility of private costing in respect of the conversion with the President. It is “common cause that the President requested a former Minister of Public Works, Mr G Doidge, to look into the delay of the project, as a result of which the latter got directly involved to expedite the process.” When Deputy Minister Bogopane-Zulu became involved in the Nkandla project, according to her evidence, discussed the details thereof with the President. The President told her that he did not want new contractors on the site. He indicated that he was opposed to more contractors being involved during phase 2 of the project than those that were implementing phase 1. The minutes of a Progress Meeting held on 28 September 2011 recorded that Mr Makhanya stated that the President had raised his concern about the slow progress of the Nkandla Project and that the premises might not be available for him to use during December 2011. The evidence of Brigadier Adendorff and Mr Rindell also indicated that the President raised his concern about the design of the bullet resistant windows that had to be installed. This resulted in a change of the design that was implemented. The President indicated to the Public Protector that he was involved in the decision to build a new kraal. In his response to the Provisional Report, he did not deny this.

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Furthermore, the involvement of Mr Makhanya, and his relationship and numerous meetings with him over the upgrade, is incontrovertible evidence against his statement that he did not know “what would be done by whom and at what cost”. The evidence against him does not end here. His emphatic, “No…” to my question as to whether he had knowledge of the letter from the former Minister of Public Works, must also be scrutinised.

On this point, it is worth noting that the Public Protector states the following:

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“The evidence further show that the former Minister of Public Works, Ms Mahlangu-Nkabinde, informed the President in writing, on 5 November 2010, of the details of the progress made with the implementation of the Nkandla Project. According to the evidence of officials of the DPW, it was their impression that the President indicated that he was satisfied with the progress report presented to him.” The highlighted sentence in the quote above points to evidence that President Zuma did apply his mind to the information received in such correspondence. The legitimacy of this letter, which the President attempted to rubbish in his oral reply because of numerous signatures on it, is further confirmed by Deputy Minister Bogopane-Zulu as existing. In fact, she admits to signing it: “During her interview, Deputy Minister Bogopane-Zulu confirmed that she also signed the letter of Minister Mahlangu-Nkabinde addressed to the President on 5 November 2010, providing him with a progress report on the Nkandla project.” Added to this evidence is the President’s failure to answer questions submitted by the Public Protector on key issues that would reveal whether or not he had misled Parliament. This failure creates a further suspicion around his intentions. The President failed to answer the following key questions asked by the Public Protector, which could have easily clarified the matter and placed himself on record for her investigation:            Whether he or the presidency requested that security measures be installed at his private residence; Whether he was, at any stage, informed of the cost of the proposed security measures; Whether a notice declaring his private residence a National Key Point was served on him; Whether he was presented by Mr Makhanya with the designs of the project; Whether he received the letter consisting the detailed report on the progress made with project that was sent by former Minister Mahlangu-Nkabinde on 5 November 2010; Whether he received the document setting out the appointment of cost for the project that was prepared by the DPW; Whether Deputy Minister Bogopane-Zulu discussed the conversion of the fire-pool to a swimming pool with him and whether he was aware of the reasons for this conversion; Whether Deputy Minister Bogopane-Zulu discussed the design of the Military Clinic with him; Whether he was consulted about the relocation of the households that were affected by the implementation of the project; Whether he would be willing to disclose the amount that he paid for the construction of the new dwellings on his property; Whether he, at any stage, enquired into the cost of the project.

These different strands of evidence come together to show that the President - in both his statements before Parliament, and the manner in which they were presented - created the

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impression before the House that he had limited knowledge of the details of the project. This is shown to be misleading in light of the facts above. Moreover, his emphatic, “No” to whether he in fact viewed the letter – which I presented to him before the House - must now be brought into question. Evidence provided by DPW notes that he was content with the details of this status update. This could indicate prior knowledge of the letter. It is also worth noting that his assertions that the letter’s authenticity is questionable because of numerous signatures do not hold water, because Deputy Minister Bogopone-Zulu acknowledges its existence, and in fact, admitted to signing it. Lastly, his failure to answer whether or not he received the letter when it was put to him by the Public Protector creates sufficient and further suspicion as to what information he was hoping to conceal from the investigation. Together, I contend that there is enough prima facie evidence for Parliament to investigate whether or not President Zuma misled Parliament in response to my March 2013 question; and whether he did so in knowledge of the real facts which he failed to provide. (5) Violation of the Public Protector’s Act: Lastly, in my perusal of the report, it appears to me that the President of the Republic, in both failing to respond to the Public Protector, and questioning her authority to question him, would amount to a violation of the Public Protector’s Act. The Public Protector’s Act states that: 7 (4) (a): For the purposes of conducting an investigation the Public Protector may direct any person to submit an affidavit or affirmed declaration or to appear before him or her to give evidence or to produce any document in his or her possession or under his or her control which has a bearing on the matter being investigated, and may examine such person. 7 (4) (b) The Public Protector or any person duly authorised thereto by him or her may request an explanation from any person whom he or she reasonably suspects of having information which has a bearing on a matter being or to be investigated. Furthermore, the Act makes it an offence to interfere with, or undermine an investigation being conducted by the Public Protector. Section 9(1) (b) notes that “in connection with an investigation do anything which, if the said investigation had been proceedings in a court of law, would have constituted contempt of court.”

This gives effect to provisions in our Constitution which, not only, ensure that Chapter Nine institutions are independent, but that also enjoins other organs of state to assist and protect them. Specifically: 7|Page

Section 181(2): “These institutions are independent, and subject only to the Constitution and the law, and they must be impartial and must exercise their powers and perform their functions without fear, favour or prejudice.” and Section 181 (3) “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions.” The Public Protector’s report reveals – again and again - a condemnable failure by the President to fully cooperate with her office. The evidence is as follows:    
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On 29 January 2012, the Public Protector wrote to President Zuma to request that he furnish evidence regarding his bond, following a specific complaint received on the potential of him misleading Parliament on this point. The Public Protector received no response, despite having approached it again on 11 April 2013, 21 June 2013 and 19 August 2013. She also wrote to the President directly again on 29 July 2013. She again received no response. At a meeting with the President on 11 August 2013, the Public Protector posed a range of written questions. He did not answer these, forcing Adv Madonsela to approach the Director General in the Presidency on 26 August 2013. On eventual request of the Presidency, a copy of the questions with annexures was provided again on 27 August 2013. But no answers were forthcoming. The Public Protector was forced again to write to the President directly on 16 September 2013 to again request his responses. The President eventually responded, not with clear answers to the 29 questions put to him, but with a statement on the matter. In this statement, he noted that, “I deem it neither prudent nor proper for me to comment particularly where the Public Protector has had access to a range of Ministers and officials properly tasked with this responsibility.” Since most of the questions were not answered, the Public Protector wrote to him again on 8 October 2013, listing the outstanding questions. The President responded, not with the answers, but with a request for evidence to be furnished to justify the questions. He also refused to provide proof of the bond. Where evidence was necessary, which was only for a few of the questions, the Public Protector submitted these – as he requested. To this date, he has yet to reply and no further responses have been received from him, which has left a large number of the questions asked unanswered.

President Zuma’s complete unwillingness to cooperate with the investigation did not end here. In a letter sent to the Public Protector, responding to the Provisional Report on 14 February 2014, he accused the Public Protector’s investigation of being “tainted by lack of proper procedure” and he claimed that it did not apply “the rules of natural justice.”

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He went onto say that at, “no stage have I been appraised of the fact that my conduct forms part of any investigation either by the Public Protector or any other institution and my statement is framed in the light of this appreciation.” He also slammed the Public Protector’s investigation as lacking “integrity as this has been compromised by several leaks.” In considering these allegations and listing all correspondence sent to the President, setting out very clearly the nature of the investigations, the Public Protector rules that: “I therefore could not find any merit in his submissions that he was unaware of my investigation and the complaints lodged against him and that he was not provided with sufficient evidence and information to enable him to respond thereto. I informed the President accordingly in a letter addressed to him on 4 March 2014 in response to his submissions, setting out the sequence of my interactions with him and the Presidency relating to my investigation, attaching copies of the relevant correspondence.” What is crystal clear from the information set out above is that President Zuma treated the investigation with disdain, did not fully cooperate with it, blatantly ignored correspondence from the Chapter Nine institution, and failed to provide all the information requested of him. This is tantamount to contempt of court, should this conduct have been displayed in a court of law – it would be an offence under Section 9 of the Public Protector’s Act. His belligerent attitude and non-compliance may also constitute a violation of the Constitution. It cannot be said that the President, as an organ of state, gave effect to Section 181 of the Constitution and did everything possible to assist the Public Protector with her investigation. DA’s motion to impeach President Zuma: Misleading Parliament and the violation of the Public Protector’s Act - and thereby the Constitution of the Republic of South Africa - are extremely serious charges against any president. The facts, as set out above, provide further prima facie evidence for the removal of the President in terms of Section 89 of the Constitution, as set out below. Misleading Parliament: The outstanding matter regarding the bond from the November 2012 oral question as well as President Zuma’s entire response to my March 2013 oral question must be investigated by the National Assembly, if we are to protect the integrity of Parliament, and indeed, the integrity of the Presidency.

The Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 sets out clearly in Section 17(2)(e) that: “Whether or not during examination under section 15, wilfully furnishes a House or committees with information, or makes a statement before it, which is false or misleading…commits an offence and is liable to a fine or to imprisonment for a period not exceeding two years or to both the fine and imprisonment.” 9|Page

It is for this reason that I specifically included a subsection in my motion to remove President Zuma in terms of Section 89 of the Constitution dealing with this point. Indeed, the motion, which gives effect to impeachment proceedings, will allow for the special ad hoc or “impeachment committee” to also investigate whether President Zuma has misled Parliament on Nkandla. Violating the Public Protector’s Act: The violation of the Public Protector’s Act - by failing to fully cooperate with her investigation to an extent that it would be considered contempt of court – must also be part of the impeachment committee’s investigation against the President. This matter was also specifically included in a subsection of my motion for a full investigation into the condemnable treatment of the Public Protector’s investigation by the President of the Republic. Going Forward: The evidence presented above is further support for the speedy acceptance of the motion to impeach President Jacob Zuma. I will therefore accordingly send this information to the Speaker of the National Assembly at the first available opportunity. The DA would, however, like to stress its growing concerns at the length of time being taken by Mr Sisulu to consider this request. In response to his correspondence to me on the 25 March 2014, I immediately sent him a further letter requesting an update on my request for an urgent meeting, as well as a clear time frame for when his decision will be made. He has yet to respond. This matter is one of national importance. The allegations against the President, backed up by reliable prima facie evidence contained in a report released by a Chapter Nine institution, must be taken seriously by Parliament, and the matter must accordingly be dealt with urgently. Section 89 is not a political tool for the removal of a President who has lost the confidence of Parliament. This is given effect to by Section 102(2). It is rather a severe sanction for wrongdoing. It is a punishment, and it has serious consequences – including losing the benefits of public office. Parliament must therefore not treat this as any other matter on its agenda. The DA, as a party committed to the Constitution, and to protecting the integrity of Parliament, will continue to do everything possible to ensure that all those responsible – including President Zuma are held to account. The evidence, as set out in this document, and in the report itself, enjoins us to act with urgency and determination. This condemnable conduct by a President simply cannot be brushed under the carpet. The DA will do everything possible to prevent this from happening. 10 | P a g e

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