'Secure in Comfort' blasted
Dominic Tweedie, The New Age, Johannesburg, 4 April 2014
Well-known National Sports Congress struggle veteran Krish Naidoo's article
"Nkandla findings are flawed" (TNA, Friday, 28 March 2014) has been
welcomed. Naidoo was quickly supported by fellow attorneys, advocates and
educators, notably in KwaZulu-Natal.
Naidoo demolished the quasi-legal basis on which the Public Protector
targets the President for blame and retribution.
Quoting chapter and verse of the Constitution, and of Codes and Protocols
that Madonsela relied upon, Naidoo demonstrated that there is no legal basis
arising from the facts and arguments given by Madonsela's "Secure in
Comfort" report, on which to nail the President. Instead, Naidoo points out,
the PP relies on subjective feelings.
Is the Nkandla security project's cost to date of R215 million (about
US$20m) over five and a half years a reason to condemn the project?
Madonsela thinks so. She insists that the spending of such an amount of
money on such a project is "unconscionable", and therefore,
"maladministration". She finds the President liable to make
as-yet-unquantified reparations to the national treasury.
Yet it is quite common for things to go wrong on building projects, and for
disputes to break out among the many interested parties involved. These
disputes can cause further serious loss to the participants, if not resolved
quickly. So, out of necessity, the law of building projects has been made
straightforward. The fundamental building block is the contract, which is an
agreement to supply something, and/or to perform a service, at a price.
The principal contract is between the client and the main contractor.
Because the client is not an expert, it is common in large contracts for an
expert agent - an architect - to act for the client.
An architect is a generalist. Like a military General Officer, the architect
oversees all specialists. The architect chairs the site meetings, keeps
minutes, and signs off on the progress payments and variation orders. The
architect is not subordinate to anyone other than the client, and especially
not to any Project Manager, as Madonsela thinks (see "Secure in Comfort"
9.4.30).
In 9.4.31 of the report, Madonsela says that in her "respectful view", Mr
Makhanya was not a suitable architect, because he had not specialized in
security. But an architect is not a specialist.
An architect is principally an expert agent for the client. This is what
underlies the most material fact in the Public Protector's Nkandla report.
The "bombshell" or "smoking gun" in the report is not the general argument
of it. The bombshell in the report is the allegation that the architect,
Makhanya, was working for, and was perhaps taking fees from, both Jacob Zuma
and the Department of Public Works at the same time, on the same property.
In construction, this is a no-no. If true, it merits the phrase that
Madonsela uses: "Conflict of Interest" ("Secure in Comfort" 9.4.29.)
But although he features prominently throughout her report, Madonsela does
not pursue the culpability of Makhanya. She jumps right over Makhanya to
President Zuma; declares the expenditure excessive, reprehensible and
unconscionable, and calls up an imaginary "reputable security consultant" to
advise on the security measures that were necessary for the protection of
the President, and the estimated legitimate costs thereof ("Secure in
Comfort" 11.5.2.).
This estimate is to be deducted from the actual cost, and the excess is to
be billed to the President and to state agencies involved. The builders and
other suppers are all exonerated by Madonsela.
In this writer's opinion, Madonsela's innovation will inter alia put any
estimating "reputable security consultant" in an impossible position, and
future architects in jeopardy.
The normal process would be to examine the contracts, one by one, and show
where excessive expenditure occurred. This would identify any culprits, and
the amounts overspent, in an actual and not in an "estimated" way.
Madonsela's peremptory, draconian orders by-pass any such audit.
If our "Ombud" succeeds in creating such a new legal procedure, it will bear
heavily on Jacob Zuma, the returned exile who wanted to live with his family
in the hills of his childhood, in keeping with his neighbours there.
In architecture, there is a term - "programme" - that is used to indicate
what a project is for: its aim, or strategic goal. As much as it is very
clear what Jacob Zuma's Nkandla "programme" was, yet this is hardly
acknowledged.
Mr Zuma has never been a wealthy man. His group of rondavels, as it used to
be, and his simple accommodation for the family's livestock, showed very
clearly that he had no intention of building a socially-alienating palace or
mansion, and certainly not a designer "dude ranch" where the cattle and the
chickens would be for show, in overdesigned and overbuilt facilities.
Whites are not sympathetic to Mr Zuma when he says he did not want the
security upgrade and all that went with it. Black South Africans are more
understanding. They can see that what Madonsela refers to as "benefits" can
as well be taken as a set of liabilities that Mr Zuma needs "like a hole in
the head", and does not want.
The moral fury, now led by the Public Protector, and supported by the DA and
by most of the mass media, seems out of place to those who see here a
typical South African misfit between two still-unreconciled worlds.
. Dominic Tweedie is a member of the Gauteng Provincial Executive
Committee of the South African Communist Party. He has more than 30 years of
experience in the construction industry.
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