President Jacob Zuma is unlikely to pay back more than a million rand of the R246-million of taxpayers’ money spent on his Nkandla home.
Legal opinion given to the president, and comments from lawyers representing his adversaries, suggest that Zuma will not be made to pay R1-million for Nkandla.
In March the Constitutional Court ruled that the Treasury should determine “a reasonable percentage of the costs” Zuma must pay for the visitors centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool built on his property.
These items were deemed non-security-related by public protector Thuli Madonsela. The state spent close to R10-million on the five facilities.
The Sunday Times can reveal that Zuma has been advised that, in terms of the public protector’s remedial action enforced by the Constitutional Court, he would have to pay only a reasonable percentage of the reasonable costs of those five items and not what the Department of Public Works paid for them.
While the public expects Zuma to repay the millions spent on features he personally “unduly benefited” from, Zuma’s legal advice is that the bill to be handed to him would be a fraction of what was spent.
Lawyers involved in the Constitutional Court process seem to agree.
Advocate Wim Trengove, who argued against Zuma on behalf of the EFF, said Zuma would be expected to pay only to the extent to which he had been enriched.
“The philosophy of the order is that he should pay to the extent for which he has been enriched. He shouldn’t pay for the wasteful expenditure incurred by the state, because it is not his fault,” he said.
Trengove said the wording of Madonsela’s remedial action, which included that Zuma pay “a reasonable percentage”, gave the Treasury wide discretion in determining the amount.
“It would not be the costs paid for the swimming pool. It would be the reasonable cost of that particular swimming pool. It is the reasonable costs, not actual costs, because in this case we know the actual costs were much higher,” he said.
An insider said although records show that the Department of Public Works paid R3.9-million for the notorious swimming pool, Zuma is expected to pay a portion of R140000.
Trengove said: “It would then be a percentage of that cost. I am not sure why a percentage, but the public protector said [that].”
Figures gathered from the public protector’s report, the Special Investigating Unit report and Police Minister Nathi Nhleko’s report show that the five non-security-related items cost the state close to R10-million.
• R3.96-million was spent on the swimming pool;
• R3.92-million was spent on the visitors centre;
• R1.2-million was spent on the cattle kraal and chicken run.
It is unclear how much the amphitheatre cost, but the DA’s calculation, using figures provided in the public protector’s report, puts the price tag at R530930.
Treasury director-general Lungisa Fuzile has set up a team headed by chief procurement officer Kenneth Brown and including lawyers and quantity surveyors to determine how much Zuma has to pay.
The Sunday Times understands the Treasury team is now finalising its report. It has until May 31 to make the determination.
Brown said the public should wait for it to wrap up the process.
Zuma’s legal adviser, Michael Hulley, said the Constitutional Court had left no room for ambiguity. “The fact of the matter is there is going to be an amount to be paid. It is straightforward and simple.”
Earlier this year, EFF leader Julius Malema, who spearheaded the #PayBackTheMoney campaign, said he was not concerned how much Zuma will pay. “We don’t care if Zuma pays two bob or zoka [five cents]. We don’t care. He must pay.”
Yesterday he declined to comment.
In March last year, the DA said that Zuma owed South Africans R52.9-million for the Nkandla upgrades.
Pierre de Vos, professor of constitutional law at the University of Cape Town, said while it seemed as if justice had not been done in the Nkandla case, the reasonable amount ordered by the Constitutional Court only related to non-security features listed by the public protector.
“The reasonable amount is the reasonable amount that should have been spent on the four items specifically listed by the public protector as non-security-related and the amount that should have been spent on them if there was no corruption in the whole building process,” he said.
Madonsela’s spokeswoman said Zuma would have to pay a reasonable percentage of all the costs incurred on the five non-security items.
The president’s supporters, particularly from the ANC in Mpumalanga, have voiced their willingness to help the president pay the bill.
Meanwhile, the Department of Public Works has “turned against” the Special Investigating Unit, ordering it to abandon its R155-million lawsuit against Nkandla architect Minenhle Makhanya as it was “defective”.
In papers filed in the High Court in Pietermaritzburg in March, shortly after the Constitutional Court’s delivered its Nkandla judgment, the department gave the SIU 10 days to drop its lawsuit against Makhanya, failing which the department would launch a court application.
Pranesh Maharaj, a senior forensics lawyer at the SIU, said they were not aware of the public works submission, but the unit was proceeding with the lawsuit against Makhanya.