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Nkandla findings are flawed Public Protector's findings have no legal foundation Krish Naidoo, The New Age, Johannesburg, 28 March 2014 THE basis of the Public Protector's findings that the President violated the Constitution and the Ethics Code and was liable to repay some of the costs of the Nkandla Project has no legal foundation. The Public Protector's report is premised on what she claims to be the overarching constitutional duty of the President to protect state resources. According to her, the President's failure to discharge this duty constituted a violation of Paragraph 2 of the Executive Ethics Code (the Code), and amounted to conduct that is inconsistent with his office as a member of cabinet, as contemplated by Section 96 of the Constitution. Section 140 of the South African Constitution The President's failure to protect state resources, according to her, also constituted the legal basis for the finding that the President and his family benefitted from the non-security related expenditure and that he is therefore liable to repay part of the costs. In support of her findings, her press statement incorrectly cites Section 140 and the Presidential Oath in schedule 2 of the Constitution as imposing a duty on the President to protect and promote the rights of all people within the republic. Neither Section 140 of the Constitution nor the oath contains the words she quotes. Based on that incorrect citation, the Public Protector made a finding of unconscionable conduct on the part of the President. In her press statement the Public Protector said: "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches people by example - If the government becomes a law breaker, it breeds contempt for law, it invites every man to become a law unto himself," without acknowledging the source. The quote actually comes from the 1928 US case of Olmstead v U S which deals with improperly obtained evidence by state agencies in a criminal matter, and it is quoted out of context. She provides three further grounds to support her findings; that the President was wearing two hats - that of the ultimate guardian of the resources of the people of South Africa, and that of being a beneficiary of state resources, but failed to discharge his responsibilities in terms of the latter; that the President should have asked questions regarding the scale, cost and affordability of the Nkandla Project; and that the President failed to act on a newspaper article in 2009 relating to the cost of the project. Her report conveys the view that the President - as the ultimate guardian and beneficiary of public power and state resources - failed to discharge his constitutional duty arising from her version of Section 140 to protect state resources, and he failed to question the costs of the Nkandla Project. Section 140 of our Constitution deals with the executive decisions of premiers. In fact, there is no provision in our Constitution which imposes a constitutional duty on the President to protect state resources. All three of her findings fall to be set aside because the constitution does not impose a legal duty on the President to protect state resources. Executive Ethics Code Section 2 of the Code expressly provides that it must include provisions requiring cabinet ministers, including the President, to meet obligations imposed on them by law. The Code requires wilful conduct on the part of a wrongdoer before action and sanction can follow. Consequently, if the President did not have a constitutional duty to protect state resources, it follows that he did not fail to discharge any obligation imposed by law as required by the Code or the Constitution and did not violate the Code. It also follows that if the finding of "unconscionable conduct", which was premised directly on the President's failure to protect state resources, falls to be set aside, then any inquiry into the President's conduct contemplated by section 96 of the Constitution becomes irrelevant because the President did not violate the Code. Cabinet Protocol of 2003 Another issue to be considered is whether the President had a legal duty to question the costs of the Nkandla Project. The answer to this will also determine whether the President was obliged to repay any costs. The Cabinet Protocol of 2003 (the Protocol) provides for a security assessment to be made by the SAPS and the National Intelligence Agency. Thereafter, the Department of Public Works costs and executes the project. The purpose of the Protocol is to safeguard the President, Deputy President and former Presidents and Deputy Presidents at their private residences. It is a public interest determined by cabinet, paid for with public funds and executed by government agencies. It is obvious that the implementation of the Protocol will yield incidental private benefits for the recipient. Morality is subjective In her interpretation of the 2003 Protocol, the Public Protector defers to the current fiscal climate and the need to balance the competing wants of South Africa as a developing state and underpins the Protocol with the element of affordability. The affordability concern may lie within the Public Protector's interpretation of morality, but was not a consideration or pre-condition imposed by the Protocol itself. The Public Protector makes reference to an article in the Mail and Guardian, which opined in December 2009 that the cost of the project was R65m. According to her, the newspaper article should have triggered a duty on the part of the President to act. If one assumes that the President read the article, the next inquiry would be whether the President had a moral duty, or legal duty, to act. The President's constitutional duty to protect state resources has been dealt with above. The opinions expressed in a newspaper article cannot be said to legitimately fall within the legal framework that would give rise to a legal duty on the part of the President to act. That leaves open the moral duty. Morality is subjective. Even if one assumes that the President had a moral duty to act and failed to do so, would that be a basis to find that the President acted unconscionably or unethically in terms of the legal requirement of the Code? To answer this question, one would have to straddle the interplay between legality and morality. Whatever the finding, it would have no basis in law. Section 7(1) of the Public Protector Act The Public Protector seems to have overlooked her own statutory responsibility set out in section 7(1) of the Public Protector Act on the presumption that she also read the article in the Mail & Guardian in 2009 to initiate an investigation to stop maladministration. The entire process of upgrading the security at the private residence of the President was within the control of the Department of Public Works. After the project was completed, it transpired that non-security related items - a kraal, chicken run, visitors' centre, amphitheatre, swimming pool and extensive paving were built with public funds and were not part of the security upgrade. The accountable party throughout was the Department of Public Works and not the President. The finding that the President is liable to pay because he tacitly accepted the non-security related items and benefitted financially cannot constitute a basis in law to make him liable. The Public Protector made this finding on the grounds that the non-security related items cannot conscionably be accepted as security measures. In the absence of any legal basis, the Public Protector had no option but to fall back on morality. Her findings are fatally flawed. In effect, what the Public Protector has done is to impose an overarching but non-existent constitutional duty on the President to protect state resources, and then proceed to shoot down her proposition to support the findings. The lesson going forward is that the exercise of a public function for the public benefit should be done in a clinical manner and within a defined legal framework, and should not succumb to the temptation of automatically translating moral reprehension into illegality. . Krish Naidoo is a practising attorney -- -- You are subscribed. This footer can help you. Please POST your comments to [email protected] or reply to this message. You can visit the group WEB SITE at http://groups.google.com/group/yclsa-eom-forum for different delivery options, pages, files and membership. To UNSUBSCRIBE, please email [email protected] . You don't have to put anything in the "Subject:" field. You don't have to put anything in the message part. All you have to do is to send an e-mail to this address (repeat): [email protected] . --- You received this message because you are subscribed to the Google Groups "YCLSA Discussion Forum" group. To unsubscribe from this group and stop receiving emails from it, send an email to [email protected]. For more options, visit https://groups.google.com/d/optout.
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