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Madonsela: Nhleko’s Nkandla report inherently flawed

The Public Protector said the report is problematic because is Nhleko is a member of the executive.

FILE: Public Protector Thuli Madonsela. Picture: Aletta Gardner/EWN.

CAPE TOWN - Public Protector Thuli Madonsela says the problems she's identified in Police Minister Nkosinathi Nhleko's Nkandla report are partly due to the fact that he is a member of the executive, who serves the president.

Madonsela has hit back at Nhelko's report on the spending debacle, saying it's riddled with misstatements, inaccuracies, incomplete information, innuendos and false accusations.

The minister was asked to determine whether the R246 million upgrades to President Jacob Zuma's private home were needed for security, after Madonsela questioned some of the installations, including a cattle kraal, an amphitheater and a swimming pool.

Madonsela says National Treasury and Nhleko were supposed to determine how much Zuma had to pay for the non-security features.

But Nhleko has not done what she asked.

"He was only asked to determine the amount. He was never asked to make comments on my report, because I don't know what is the status of the report that was issued. Is it a new investigation? Is it a review? Because it doesn't review any report, it just makes comments. I never asked him to do anything like that."

Last year, Madonsela found the president unduly benefitted because non-security features were installed at his private home in KwaZulu-Natal, including a swimming pool, a visitors' centre and an amphitheater.

But Nhleko's report found all these features are there for the president's security and he was not liable to pay for them.

Madonsela said National Treasury, working with the Police Ministry, had to determine what the president should pay for non-security features.

"We just decided to be true to the Constitution and use the language of the constitution which is remedial; how do we remedy the wrong that we have found?"

In the statement released on Friday afternoon Madonsela outlined some of what she says are the inaccuracies in the report as they relate to her report:

* A claim is made in Minister Nhleko's report, which incorrectly states that the Public Protector found that "no public funds was used to build the President's house(s)" (sic). This could not be further from the truth. According to paragraph 10.10.1.1. of the Public Protector's report: "President Zuma told Parliament that his family had built its own houses and the state had not built any for it or benefited them. This was not true. It is common cause that in the name of security, government built for the President and his family at his private residence a Visitor's Centre …" This is important because the Visitor's Centre itself is a house, a double story building.

* In another instance, an impression is created in Minister Nhleko's report that the Public Protector found that there was no need for a water source to help in the event a fire broke at the President's residence. This is false. As can be gleaned from paragraph 10.3.2 of the Public Protector's report: "Measures that should never have been implemented as they are neither provided for in the regulatory instruments, particularly the Cabinet Policy of 2003, the Minimum Physical Security Standards and the SAPS Security Evaluation Reports, nor reasonable, as the most cost effective to meet incidental security needs, include … a swimming pool …"

* Minister Nhleko's report further does not indicate the scope of his investigation and timeline. The relevance of these is to indicate what issues where included or excluded in his investigation.

Madonsela adds that she stands by her report.

"As far as the Public Protector understands the Constitution and the law, neither the executive nor the legislature can override the findings of any independent institution established under Chapter 9 of the Constitution, replacing such determinations with their won. This is why the Constitution states in Section 181(2) that "these institutions are independent and subject only to the Constitution and the law …" In any event, Minister Nhleko's report does not attempt to review the Public Protector's report. Instead, it makes random and sometimes adverse comments on isolated aspects of the report."

She adds that as the public protector, as the only oversight authority that is legally competent to advise the president on matters of executive ethics, she will write to him to point out the limitations in the minister of police's report, with a view to ensuring that the president is placed in a position to make an informed decision not based on withheld or distorted information.

Lastly, she emphasises that she did not make the rules that she relied upon in investigating the matter in question, the government did.

WATCH: NKANDLA PROBE EXPLAINED

For a full breakdown of Nhleko's Nkandla report click here.