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During the impeachment vote in Parliament, the South African deputy minister of justice and constitutional development, and ANC MP John Jeffery alluded to the severity of the Nkandla judgement. He said: “The constitutional court did not find a serious problem with the President’s action. There is a big difference between an inconsistency and a big violation. The Constitutional Court did not declare this.” The Mailbox below extracts some of the rulings from Mogoeng Mogeong’s judgement and asks a similar question. Did the Constitutional Court, while applying it’s mind properly on the legal issues, miss the severity of the crime committed against the citizens of South Africa, when looking at it from a financial perspective? An interesting read. – Stuart Lowman
From Biznews community member Dennis de Necker
On 31 March 2016, the Constitutional Court of South Africa ruled as follows, regarding Nkandla:
- The National Treasury must determine the reasonable costs of those measures implemented by the Department of Public Works at the President’s Nkandla homestead that do not relate to security, namely the visitors’ centre, the amphitheatre, the cattle kraal, the chicken run and the swimming pool only.
- The National Treasury must determine a reasonable percentage of the costs of those measures which ought to be paid personally by the President.
The problem that I have is as follows:
Ruling no. 5 states: ‘…….the reasonable costs….’
It is public knowledge that the cost of every aspect at Nkandla was heavily inflated.
Does this ruling mean that:
- Treasury will evaluate what non-security improvements were built and then decide on a ‘reasonable cost’ (based on valuations?) for the building of these improvements, or
- After identifying all the elements that need to be paid for by Zuma, they will then merely extract the actual paid invoices relating to these elements (irrespective of whether these amounts are reasonable, market-related or inflated), in order to determine the actual amounts unknowingly paid by the citizens of South Africa for these elements – such inflated payments being for the exclusive benefit of Zuma and his suppliers.
Ruling no. 6 states: ‘…..a reasonable percentage….’
Does this ruling imply that, once Ruling no. 5 has been executed and determined, Zuma will then be entitled to a percentage DEDUCTION (for good behaviour or as a volume offender?) of the decided reasonable cost?
As a precedent, this is dangerous, as the rule then becomes that ‘when we catch you, instead of penalising you, you will be entitled to a discount on your thievery’. Does this imply that the citizens of South Africa will now be entitled to an equal discount percentage on all their traffic fines, identified tax violations, etc?
Will a bank robber, when caught, now be entitled to pay back only a percentage of his haul when caught, leaving court with the balance in his pocket and no jail time?
This could result in an enormous increase in ‘job creation’ opportunities, with the resultant net ‘remuneration’ probably not even being subject to personal tax or donations tax.
Zuma should be penalized ABOVE the established cost, in order to set a deterrent for the others in privileged positions.
A ‘fair and reasonable’ approach will not deter people from committing a crime, such as having been committed by South Africa’s most prominent citizen, that should have led by example, instead of by his insatiable appetite for self-indulgence.
A ‘discount’ offered to a sports personality by a motor manufacturer is effectively a reward for being recognized as a leader and role model in his field.
A ‘fair and reasonable’ approach makes it patently clear that the least Zuma should ‘reimburse the citizens of South Africa’ with is the amount of money (whatever it amounts to), that was misappropriated for his personal benefit, rather than pay back ‘a determined reasonable amount’ of the fraudulent expenditure, less a discount on the reasonable amount, as this would mean that South Africa is still out of pocket, while Zuma can still chuckle at his windfall of buying these facilities very much cheaper than what the National Treasury believe it cost, let alone a massive discount of the amount that it cost the citizens of South Africa (as substantiated by fraudulent invoices).
Will the source of the funds that will settle the reasonable cost be subject to investigation, in order to identify the possible ‘round-tripping’ of our money? Zuma’s salary is public knowledge. After tax and normal out of pocket expenses, it is inconceivable that he could have amassed reserves capable of settling this obligation. If the Guptas or Duduzane pay, it means that, yet again, we have paid.
Then there is the issue of interest…
We all know that when you ‘borrow’ money, there is a multiplying factor that comes into the equation, called ‘compound interest’. The clock should be running for Zuma from date of payment to the suppliers of the goods and services until date of full settlement by Zuma. The interest rate should be equal to no less that the interest rate payable by the average South African citizen on financial loans.
It would appear that the Constitutional Court, while applying it’s mind properly on the legal issues, missed the severity of the crime committed against the citizens of South Africa, when looking at it from a financial perspective.
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