Nkandlagate: DA vs. the Ministerial Handbook

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As Parliament refuses to debate the alleged expenditure of almost R250 million on Jacob Zuma’s private homestead in Nkandla, the DA is taking the gloves off. On Monday, DA parliamentary leader Lindiwe Mazibuko announced a raft of measures that they want to see taken to ensure Nkandlagate doesn’t happen again.

Have you read the Ministerial Handbook? If you ever have an idle hour, you might want to consider it. For one thing, it details how taxpayers’ money is spent, in terms of the perks available to ministers, deputy ministers, MECs, presiding officers and their deputies in parliament or the provincial legislature. For another, the provisions of the Ministerial Handbook are invariably trotted out to justify overspending of one kind or another, so it’s nice to be prepared in advance.

It hasn’t always been publically available – the M&G tried to get hold of a copy last April and were told they would need to submit a Promotion of Access to Information Act request because it was a “classified, confidential document”. They went on to publish it online and were harshly rebuked by Dumisani Nkwamba, spokesperson for the minister of public service and administration, who called their action “illegal and irresponsible”.   

The handbook is not exactly riveting reading, but there are certain distinct points of interest. Did you know that former ministers still receive 48 free business class flights within South Africa per year? (And might SAA, given their R1,3-billion loss over the past year, not want to perhaps reconsider this largesse?) Also, the Handbook specifies that if members aren’t in the mood for air travel, they “may travel by train for official purposes at the cost of the relevant Department, including travelling on the Blue Train”. The cost of a Blue Train trip from Cape Town to Pretoria this year, at its lowest off-season rate, clocked in at R10,930 per person one way.

The Handbook is in some regards quite detailed. For instance, as a member or a member’s spouse, you can only pick the flowers planted at state-owned residences once you have consulted with the horticulturists of the department of public works. When members are picking out seasonal greeting cards, they should exercise restraint “in terms of the design and number”, out of mindfulness of “the context of financial prudence”.  

Yet in other ways it is extraordinarily lax. For instance, when it comes to hotel accommodation, it states initially only that: “Members, their spouses and dependent children who out of necessity cannot remain at home are entitled to accommodation and subsistence at expense of the relevant Department (in any hotel or hostelry) when fulfilling official duty away from their ordinary places of residence”. Note the word “any”. Later, it gives the vaguest possible guideline: “Accommodation and subsistence expenses should be kept as low as possible by making use of hotels which suit the status of Members, but which have reasonable tariffs.” 

Considering members are permitted to spend over a million Rand on their cars, it is anyone’s guess what the handbook considers “reasonable” for hotels. Little wonder that in September last year, Public Protector Thuli Madonsela suggested that recommended tariffs for minister accommodation be published twice a year, after it was found that Police Minister Nathi Mthethwa had spent R734,448 on accommodation at five-star hotels in Table Bay and Durban.

But there is one provision in the Ministerial Handbook which is quite unambiguous, and that is on the matter of how much money the State may contribute to security measures at the private residence of a public office bearer. That sum is capped at R100,000, according to Annexure E of the handbook. Yet you may recall that Public Works Minister Thulas Nxesi initially deflected criticisms about the cost of the Nkandla upgrade by saying: “I would like to state categorically that everything that has been approved and carried out at the private residence of the current president is in line with the Ministerial Handbook as far as it relates to security arrangements for private residences of the President.”

After the R100,000 restriction was pointed out to Nxesi, he changed his tune, saying that actually President Zuma was not bound by the Ministerial Handbook: “The Ministerial Handbook is just one little piece, but if you’re talking about the head of state, you’re talking about something far beyond that”. Law expert Pierre de Vos explained in a column for the Daily Maverick that this could only be the case if there were another piece of legislation which could trump the Handbook. Nxesi has suggested that this is indeed the situation with the National Key Point Act, a piece of what De Vos terms “draconian Apartheid legislation” enacted in 1980.

De Vos says the National Key Point Act probably doesn’t hold here, though, because although the act does provide for the use of public funds for security for national key points, this has to be done from the Special Account for the Safeguarding of National Key Points on the instructions of the Minister of Defence, and there’s no evidence that this was carried out accordingly.

Zuma, for his part, has pulled his usual “I just work here” schtick. At the New Age Business Briefing on October 11, he said he didn’t know the cost of the upgrade and didn’t question it. “I think the ministers have given the answers and if people want to pursue that, they’ll pursue it. I don’t question the security measures that government takes in relation to presidents, vice-presidents, ministers or MECs. It is what is regulated somehow,” he said. He added, however, that “a large part of that” had been paid for by his family.

DA parliamentary leader Lindiwe Mazibuko subsequently submitted a question to Parliament asking how much this amount paid by family was. Last Thursday it was announced that the question had been thrown out, on the grounds that the inquiry strayed into Zuma’s private life. Mazibuko denounced the decision as having set “a dangerous precedent in allowing Parliament to protect the president from answering difficult questions”.

Of course, Nkandlagate is like an early Christmas present for the DA, and they’re not likely to give up easily. At a media briefing on Monday, Mazibuko laid down the DA’s intentions in this regard. They focus on four areas: the Ministerial Handbook, the National Key Point Act, the Executive Ethics Act, and the current situation in terms of the President’s standing vis a vis Parliament.

When it comes to the Handbook, the DA has been calling for a revision for over three years. Zuma initially committed to the review, and Minister in the Presidency Collins Chabane vowed that amendments would be finalised before the World Cup. Last year, the DA-run Western Cape government released their own provincial ministerial handbook as a hint on how things should be done. Among the Western Cape measures: members have to choose an official vehicle worth no more than 40% of their annual salary (in the national handbook, this figure is 70%); members have to fly economy class; members cannot obtain departmentally-sponsored credit cards in their own names. The DA wants to see the national Handbook overhauled along these lines by the end of the year.

In terms of the National Key Point Act, the DA is calling for clarity on what constitutes a key point. They want to ensure that only sites critical for national security can be labelled thus, and that the decision in this regard can be reviewed by the Portfolio Committee of Defence and Military Veterans (on which the likes of the DA’s David Maynier sit). The DA calls for an updated list of national key points to be available to the public, and for the expenditure on key points to be made public. With specific regards to Nkandla, the DA has submitted parliamentary questions asking on which date the homestead was declared a national key point.

The Executive Ethics Act of 1996, which is the DA’s third sticking point, is designed theoretically to prevent conflicts of interest for office-bearers. It states that members should not use their position to enrich themselves, not act in a way that damages the integrity of their office, or act in a way which is inconsistent with their office. The DA contends that the Nkandla upgrade is in violation of the act, but notes that as things stand legislatively, “the president is effectively his own adjudicator in cases of alleged conflict of interest”. 

They want to see this changed so that the president’s ethical conduct would become accountable to the Public Protector. (Thuli Madonsela’s King Solomon-esque role in the public life of this country is being expanded so rapidly that presumably it would save everyone’s time to install her as president and be done with it.) The DA has previously submitted a proposal along these lines which the ANC already rejected this year, but the DA now plans to resubmit the amendment to the Speaker of the National Assembly, Max Sisulu, who Mazibuko described on Monday as “notoriously balanced”. 

But the DA feels that the wider problem illustrated by Nkandlagate is that there is no parliamentary portfolio committee monitoring the presidency, which creates a culture of “being above the law”. As such, the DA is calling for the establishment of such a committee – and they hope to secure “multi party buy-in” for the measure. Can they possibly persuade the ANC to break ranks on this issue? 

“We are aware that this is highly political,” replied Mazibuko. “People will act according to their political interests.” But, she said, it’s time to shore up the public’s faith in parliament as a mechanism to hold public figures to account.

On 7 October, Madonsela said that she was investigating the upgrade of Zuma’s residence at Nkandla. Mazibuko has also requested that the Standing Committee of Public Accounts (SCOPA) investigate the Nkandla upgrade. SCOPA was supposed to report their verdict in this regard this Tuesday, but at time of writing this looked unlikely to happen, and they’ve already deferred the decision. The DA seems not to be holding out much hope, since they have a contingency plan – asking the Speaker to convene an ad hoc committee of inquiry into the expenditure. Exactly how far they will get will likely depend on the direction of Mangaung-related currents swirling around Zuma. But you can be sure the DA won’t let this go in a hurry.

  • Rebecca Davis writes for the Daily Maverick online. This article was published on the Daily Maverick online.