There are bigger things at stake than Nkandla

 

October 12 2014 at 10:43am
By Craig Dodds (iol.co.za) Comment on this story

The political climate is likely to get uglier unless a solution to the problem is found, writes Craig Dodds.

Nkandla is fast threatening to overtake the arms deal as the most investigated issue since 1994 – generating a plethora of official (and less official) reports in its wake, even as prospects of a resolution appear to recede.

It is already almost certain to end up before the Constitutional Court, following a parliamentary process mired in controversy from the start.Copy of 2667711

There are thus far five reports on Nkandla – those of the public protector, Special Investigating Unit, joint standing committee on intelligence and a Public Works task team, as well as President Jacob Zuma’s response to these.

Parliament’s ad hoc committee on the issue has asked a technical team to prepare a draft report for its members to consider, probably next week, before they submit a final report to the National Assembly on their findings and recommendations.

Chairman Cedric Frolick said he’d discuss extending the deadline (October 24) for the committee to complete its work.

But the committee consists of ANC members only, after the opposition parties represented on it withdrew, saying the ANC’s refusal to budge on any of the opposition proposals showed the governing party was hell-bent on producing a whitewash to exonerate Zuma.

The opposition parties are now preparing their own report, which they may release next week.

That will bring to seven the number of reports on Nkandla (if Zuma’s is included, though it’s more or less a summary of the first four).

All this comes as the country faces an economic crisis that makes the R216 million spent on Nkandla pale into insignificance.

Veteran former ANC MP Ben Turok was incredulous when he spoke to journalists this week about “the political climate”.

“Here’s the IMF reducing our growth prospects to 1.4 percent, for the fourth time, and we’re worrying about Nkandla? There’s a hell of a lot more money here that we’re going to lose,” Turok said.

“I watch the economy very carefully, and what I see is alarming… mining, manufacturing and agriculture, all three are stagnant, if not worse, all three.”

Everybody was “sick and tired” of Nkandla, Turok said.

Yet some of the institutions that are supposed to resolve situations where public money has been misspent have been rendered impotent by the political stalemate over the scandal.

Public Protector Thuli Madonsela’s report has been called into question by ANC members on the ad hoc committee, among others, and attacks on her credibility escalated this week with the delivery of a letter accusing her of “gross misconduct and incapacity” and asking Parliament to investigate and take “appropriate corrective measures”.

The Nkandla ad hoc committee has referred this submission back to Speaker Baleka Mbete, suggesting it be dealt with by the justice portfolio committee.

Meanwhile, Parliament’s report on Nkandla, following a process in which the ad hoc committee has thus far refused to call any witnesses to respond to the remaining unanswered questions stemming from the public protector and SIU’s investigations, is unlikely to satisfy anyone other than the ANC.

Frolick said this week the committee would deliberate on the draft report and, if there were “any gaps”, consider how to address them, but he would not commit to inviting any of the role players to Parliament to provide clarity.

The opposition parties’ alternative report, on the other hand, will have no formal status, having been produced outside the parliamentary process.

Chairman of the DA federal executive, James Selfe, said this week he had compiled a draft report on behalf of the opposition parties, which was being circulated for their approval.

He said he had tried to refer only to the existing reports, “particularly the parts where they concur”.

“We’re not making any assumptions – we do obviously draw some conclusions – but we’re just trying to say, on the basis of what was before that committee, this is the inescapable conclusion,” Selfe said.

One example was that Zuma had agreed, according to the public protector’s report, that he had asked for a larger cattle kraal at Nkandla and been willing to contribute to the costs, contradicting the ANC’s claims that the president was unaware of the details.

But Selfe admitted the opposition document would have no formal status and was “essentially a political report”.

The rules of Parliament do not allow for the production of minority reports.

The parties had had the option of remaining in the committee and having their views recorded in its final report, but this would have conferred legitimacy on the process, according to Selfe.

They would instead use the debate on the ad hoc committee’s report, when it is tabled for consideration by the National Assembly, to argue their case.

Given the ANC’s healthy majority, that will not change the outcome of the process, with the adoption of the ad hoc committee’s final report a foregone conclusion that, technically, will bring Parliament’s role in the matter to an end.

Waiting in the wings, however, is the probability of a Constitutional Court application by the opposition parties to have Madonsela’s remedial actions – including that Zuma should pay a reasonable portion of the costs of “non-security” items – enforced.

They are awaiting the outcome of another application, in the Western Cape High Court, relating to the enforceability of remedial actions contained in Madonsela’s report on the SABC’s appointment of Hlaudi Motsoeneng, among other issues.

It will be months, at least, before a Constitutional Court ruling settles the question at the bottom of the strife – whether Zuma must pay for some of the Nkandla costs as Madonsela said he should.

In the meantime, the “political climate” is likely to get a lot uglier, further sapping confidence in the country and its ability to focus on its economic problems.

It’s not clear at this stage how seriously the justice committee will take the complaint against Madonsela, given that a proper interrogation of the charges would involve calling her to Parliament to respond to criticisms of her report on Nkandla – something the ANC representatives on the ad hoc committee have been reluctant to do.

An inquiry into Madonsela’s fitness for office would inevitably require Parliament to pick over the Nkandla carcass yet again, just when it had tried to put the matter to rest.

But opposition parties are not going to allow it to drop off the agenda anyway, and the Concourt application will be another opportunity for them to mobilise public sympathy.

On top of that, the DA’s application for a review of the decision to drop arms-deal-related corruption charges against Zuma will add fuel to the fire in the coming months, while jockeying for position within the ANC in the lead-up to its National General Council next June will add to the noise.

The country is in for a very bumpy ride in the months to come, unless something gives in the meantime.

“People are sick and tired of the evasion of the solution. It’s a very sensitive issue which needs to be resolved,” Turok told reporters this week.

“I think all of us should try and be sensible and say, let’s find a way out. I don’t want to say he must now come and own up. I’m saying the country requires a solution. We must resolve this thing once and for all, and stop this haggling.”

craig.dodds@inl.co.za

Political Bureau

Protect the Public Protector

We, as a Law School, have a proud history of speaking out against violation of and threats to the rule of law. The Society of Law Teachers of Southern Africa (SLTSA) gave an undertaking to the TRC in 1997 that law schools would always protect the rule of law and  ensure that the foundational principles of our constitutional democracy not be undermined.

In order to protect institutions that have been set up to strengthen democracy, we are obliged to issue the following statement:

  1. The Constitution must be interpreted in a manner that advances the founding principles of democratic governance, accountability, responsiveness and openness.
  2. An independent, effective and functional Public Protector is vital if we are to attain this objective.
  3. Interpretations of the Constitution which advance short- term political and other parochial interests but undermine constitutional institutions cannot be countenanced.

We condemn in the strongest terms any attempt to undermine the office of the Public Protector; whether it be by members of the Executive, Members of Parliament, leading politicians or members of the public.

We wish to place on record the following:

  1. Section 181(2) of the Constitution requires the Chapter 9 institutions, which include the Public Protector and her office, to carry out their mandate ‘without fear, favour or prejudice’.
  2. Section 181(3) of the Constitution requires ‘other organs of state, through legislative and other measures to ‘assist and protect’ Chapter 9 institutions, including the Public Protector’s office, ‘to ensure the independence, impartiality, dignity and effectiveness of these institutions’.
  3. Section 237 requires all constitutional obligations to be performed diligently.
  4. The Public Protector submitted a comprehensive report after an exhaustive process into the upgrading of the Nkandla complex and concluded that the President and his family improperly benefitted and suggested remedial action.
  5. The findings of the Public Protector may only be reviewed by a court of law, and any review of her findings by the ad hoc Parliamentary committee, the MPs, the Ministerial task team, the Special Investigative Unit (SIU), an Individual Minister or any other body or person, would be contrary to the rule of law and unconstitutional.
  6.  Parliament is required to study the remedial action recommended by the Public Protector in her report in order to hold the relevant person accountable.
  7. It is not within the powers of Parliament to determine whether the Public Protector’s conclusions were correct or not.
  8. The report of the Public Protector is that of an independent constitutional institution and may not be treated as if it is of equivalent status to other reports on the Nkandla complex, compiled at the behest of the Executive or by agencies which report to the Executive.

We therefore call upon members of the Executive, the ad hoc Parliamentary committee, MPs and spokespersons for the ruling party to desist with immediate effect from making unconstitutional and ill-conceived attacks on the office of the Public Protector and her office and to implement her recommendations.

If the public would like to join the campaign to protect the public protector they can visit #tag.protect the public protector.

School of Law, University of KwaZulu-Natal,

Endorsed by the South African Law Deans Association (SALDA) and by the Society for Law Teachers in Southern Africa (SLTSA).

Provinces have final say on admissions – ruling

A provincial government has the final say on the number of pupils that can be admitted to a school, the Constitutional Court ruled yesterday, according to a BDlive report. ‘While the school governing body determines admission policy, individual decisions on admission are taken only provisionally at school level by the principal acting under the authority of the head of department,’ the court said in what the report says is seen as landmark judgment.

‘Where the need arises, section 5(9) provides a safety valve, which allows the MEC to consider admission refusals and overturn an admission decision taken at school level,’ the court ruled. The report notes the matter came to the Constitutional Court after Rivonia Primary School refused to admit a child to grade 1 when the parents applied in 2010 because the school was full. The Gauteng government instructed the school to admit the pupil, contrary to the school’s admission policy. The SCA found last year that the Gauteng government’s instruction to the school was unlawful, and that a school’s governing body had the authority to determine the school’s capacity. The judgment overturned a High Court decision, which held that the overall authority to determine school capacity rested with provincial education departments. The matter subsequently went to the Constitutional Court.

Acting Constitutional Court Judge Nonkosi Mhlantla wrote the majority judgment. She said: ‘The power of the governing body must also be understood within the broader constitutional scheme to make education progressively available and accessible to everyone.’

A report in The Times notes the court found against the Education Department head, saying he had not acted in a procedurally fair way by physically forcing the child into the class. Both parties were criticised for not working together in a spirit of ‘co-operative governance’. ‘Trouble starts when we become more absorbed in staking out the power to have the final say rather than in fostering partnerships to meet the education needs of children,’ the judge said. The chairman of Rivonia Primary’s governing body, Rickson Mboweni, said he was ‘disappointed’ by the ruling but pleased that all further actions of the department, when intervening in an admission dispute, had to be ‘procedurally fair’.

MEC for Education in Gauteng Province and Others v Governing Body of the Rivonia Primary School & Others for a full report.

Minister defends Legal Practice Bill Published in: Legalbrief Today

Category: Policy
Issue No: 3283

Justice and Constitutional Development Deputy Minister Andries Nel has refuted allegations that provisions in the Legal Practice Bill that seek to empower the Minister to appoint three members of the proposed Legal Practice Council out of a total of 21 are a deliberate move by government to control it, reports Legalbrief Policy Watch.

Reiterating government’s commitment to strengthening the independence, dignity, accessibility and effectiveness of the courts as part of the process of transforming the legal profession as a whole, Nel told the annual meeting of the Black Lawyers Association that ‘the untransformed state of the legal profession’ not only constitutes a ‘stumbling block’ to greater access to legal services and justice: it also impedes the further transformation of the judiciary.

While it will be the role of the Minister’s appointees to assist the council in its efforts to address this, they will not be in a position to drive the process. According to the Deputy Minister, ‘elites … who have done well under the current rules’ consider government attempts at transformation as ‘akin to … tyranny’, projecting themselves as victims. SA ‘s Constitution does not give an elite the right to carry out decisions ‘in an opaque way for their own benefit’, or to ‘permanently engage in … vices’ that prevent others from ‘ascending the ladders of the legal profession’, Nel said.
Full Legalbrief Policy Watch report

Immigration: SA still not dealing effectively with asylum seekers

SA attracts the largest number of asylum seekers in the world, but grants refugee status to very few, ranking only 36th in the world for the size of its refugee population, which the UN Refugee Agency (UNHCR) puts at about 58 000, notes an Irin report.

The Department of Home Affairs approved just 15.5% of the applications it processed in 2011, less than half the global average recognition rate of 38%, according to UNHCR.

Researchers and activists have repeatedly pointed to serious flaws in the country’s refugee status determination process, including the lack of individualised assessments, misapplications of both local and international refugee law, and high levels of corruption among Home Affairs officials. The government’s routine response has been that its asylum system is simply overwhelmed by the sheer number of applications it receives.

Source: LegalBrief

HRC Bill introduced in Parliament

The HRC introduced a Bill in Parliament that seeks to provide for the composition, powers, functions and functioning of the South African Human Rights Commission; and to provide for matters connected therewith.

Read the full Bill: South African Human Rights Commission Bill 2013

News updates

Human Rights Watch World Report: Human Rights Watch has released its 2013 World Report. It raises a number of concerns, including torture, lengthy pre-trial detention and the abuse of civilians by military officials, in respect of a number of African countries. The report is available at https://www.hrw.org/sites/default/files/wr2013_web.pdf#page=120&zoom=auto,0,251

International Juvenile Justice Observatory (IJJO): The IJJO has released its January 2013 Newletter. It contains an editorial piece on the International Detention Coalition’s research based on children’s experiences in immigration detention, covering a range of countries, including Somalia and Ethiopia. The newsletter is available at http://www.oijj.org/en/sala-prensa/boletines

Access to justice for women: The International Development Law Organisation has released a manual entitled “Accessing Justice: models, strategies and best practices on women’s empowerment.” The manual contains a number of examples and case studies from women in African countries. The manual is available at http://www.idlo.int/Publications/Women-AccesstoJustice.pdf

Offensive tweets could mean jail time – lawyer

A lawyer has warned South Africans to be careful about what they tweet, because offensive posts could result in charges being filed – and even a possible jail term of between three and six months.

Emma Sadleir, a social media lawyer at Webber Wentzel, is quoted in a report in The Times as saying Twitter and Facebook users who put up racist or offensive posts could be charged with crimen injuria or face a complaint under the Equality Act.

‘It is not unusual for a person who is found guilty of crimen injuria to be imprisoned in SA,’ Sadleir said. ‘I know of two separate cases in which policemen were called [by] the ‘k’ word and in both instances, the person was sentenced to jail for a period of three to six months.’

Like any other form of publication, online users are held liable for all comments they make on social networks, even when retweeting and sharing posts. The report notes Sadleir said anonymous users were not exempted from criminal charges, or complaints laid with the Equality Court against unfair discrimination, harassment and hate speech. This is because it is possible to get a court order compelling a website to hand over any information like e-mail or an IP address identifying the person who set up the account.

National Director to head up ‘bench book’ editorial team

From 13 to 16 Feb Street Law facilitated a discussion with 60 magistrates from all over the country on their experiences with the implementation of the Child Justice Act 75 of 2008.

The aim of the discussions was to identify areas of non-compliance, inadequacies and/or challenges with the implementation of the Child Justice Act. In addition the magistrates nominated individuals from among themselves to form part of an editorial team that will be responsible for the compilation of a resource manual (‘bench book’) for use by magistrates. The editorial team will be headed by Lindi Coetzee.