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The Special Tribunal has ordered Minenhle Makhanya, the architect and principal agent responsible for the security upgrades at former president Jacob Zuma’s Nkandla residence, to repay the state R147.3m after finding that his appointment and conduct during the project were unlawful.The SIU said on Thursday that the tribunal had ordered Makhanya to pay the national treasury R147.27m, representing the financial loss suffered by the then department of public works as a result of unlawful conduct in the project.The judgment was delivered on Wednesday, August 26.The ruling is the latest development in the long-running Nkandla saga, which became one of the defining scandals of Zuma’s presidency and led to a landmark Constitutional Court judgment on the powers of the public protector and the accountability of the president and parliament.The SIU’s investigation into the project was authorised under proclamation R59 of 2013. The unit was directed to investigate allegations that goods, works and services for the project had been procured in a manner that was not fair, equitable, transparent, competitive or cost-effective, and to recover financial losses suffered by the state as a result of unlawful conduct. Following Zuma’s election as president, security assessments by the South African Police Service (SAPS) and the South African National Defence Force (SANDF) identified measures required to secure him, his family and his private residence in Nkandla, KwaZulu-Natal.The department of public works initially estimated the cost of the project at R27.90m. Funding was approved by the department’s planned maintenance budget committee in August 2009. Makhanya was appointed as principal agent for the project later that month.However, the tribunal found that his appointment had not been preceded by a competitive bidding or open tender process and that there was no emergency or other lawful justification for bypassing procurement requirements. It also found that Makhanya was not listed as a supplier with the department.The SIU investigation found that the project subsequently expanded beyond the security measures identified by the SAPS and the SANDF, with the overall cost rising to R216m. Among the works authorised were tunnels with an exit and three lifts, 20 additional accommodation units for police and military personnel, a laundry facility, a visitors’ lounge, basement parking for a clinic, VIP parking, a pool, the relocation of households, internal roads, air-conditioning and extensive landscaping.The additional structures and works identified by the SIU cost R68.5m.The tribunal found that Makhanya authorised and certified payments for structures and services that were not required by the security assessments.It found that he failed to obtain the necessary written approval for variations and over-designs, certified payments above market-related costs and approved payments for work that had either not been performed or had not been properly accounted for.Makhanya authorised payments totalling R54.8m to Moneymine Investments 310 CC and Bonelena Construction and Projects, which the SIU alleged were contrary to provisions of the building contract.The tribunal found that he breached statutory, professional and contractual obligations arising from, among other things, the Architectural Profession Act, the applicable professional code of conduct, the department’s manual for architects and the Joint Building Contracts Committee agreement.Makhanya argued that he had acted within the scope of his authority by implementing the instructions and decisions of the SAPS and SANDF. He also raised defences relating to prescription and the time that had elapsed since the project. The tribunal rejected those arguments.Judge Kate Pillay said: “It is regrettable that the first defendant stands alone as the person against whom the Special Investigating Unit has launched action, as he clearly did not act alone in allowing the costs of the upgrade at Nkandla to balloon.” However, the judge found that Makhanya, as architect and principal agent, bore responsibility for ensuring the department did not incur fruitless and wasteful expenditure. The tribunal declared invalid and of no force and effect the contract concluded in relation to Makhanya’s appointment and ordered him to pay the costs of the proceedings, including the costs of two counsel.The SIU accepted a submission that reduced its claim by R7.8m, reflecting the amount Zuma previously repaid as a contribution towards non-security related upgrades at Nkandla.That repayment followed the Constitutional Court’s 2016 judgment in the Nkandla matter, which found that Zuma and the National Assembly had acted inconsistently with the constitution in their handling of former public protector Thuli Madonsela’s remedial action in her “Secure in Comfort” report.The court held that the public protector’s remedial action was binding unless set aside by a court and directed the National Treasury to determine the reasonable cost of the non-security related improvements for which Zuma was liable. The R7.8m paid by Zuma was subsequently taken into account in determining the amount that Makhanya should repay, according to the SIU.The SIU said the latest order formed part of its efforts to implement the outcomes of its investigations, recover public funds lost through unlawful conduct and strengthen consequence management in the public sector.It said that in terms of the Special Investigating Unit and Special Tribunals Act it would refer any evidence of criminal conduct uncovered during its investigation to the National Prosecuting Authority for further action. Business Day
