~2¢ — Office of the State Attorney Pretoria PRETORIS Seiu Bung Tek (Swtonboarsy (012) 208 (Direct Line}: (012) 308 1562 (Secretary, (01 308 1830 Fax (General) (012) 309 1489/50 (Direct) (086) 507 3326 02 FEBRUARY 2016 Enquires: K 1 CHOWE My ref 6083/2015/275)js, Emailichowe@justice gov ze Your ref PER FAX: (011) 403 6524/ 086 649 2466 EMAIL: ieewconcourtorg.za Constitutional Court of South Africa Private Bay XI BRAAMFONTEIN 2017 Dear Sir/Madam, RE: ECONOMIC FREE, NATIONAL ANOTHER (CCT143/15) and DOM FIGHTERS AND THE SPEAKER OF THE MBLY, REPUBLIC OF SOUTH AFRICA AND DEMOCRATIC ALLIANCE AND THE SPEAKER OF THE NATIONAL ASSEMBLY. REPUBLIC OF SOUTH AFRICA AND OTHERS CCTITIIS). Access to Justice for All Always quote my reference numberI We refer to the above matters which are set down for hearing on 9 February 2016. We wish in advance of this hearing to indicate to the Court and the other parties the basis on which the President's representatives will address the Court, 2. The Public Protector’s Report requires that the “President is to take steps. with the assistance of the National Treasury and the SAPS. to determine the reasonable covt of the measures implemented by the DPW ar his private residence that do not relate to security. and which include Visitors” Centre, the amphitheatre, the cattle kraal and chicken rum and the swimming pool.” Thereafter, the Public Provector's Report requires the President to “puy a reasonable percentage of the cust of the measures as determined with the assistance af National Treasury, also considering the DPW apportionment document Although procedural questions have been raised on behalf of the President, including this Court's exclusive jurisdiction, and direct access ~ matters which are ultimately for the Court ~ the need for finality is apparent. At various points in his affidavits and written submissions. the President has made the proposal that as regards a determination of any amounts to be paid by the President in respect of the Nkandla upgrades. “she determination of the reasonable proportion of the reasonable cost of those features should be referred 10 an independent and impartial arbiter.” ‘The President proposed that the “appropriate body would be the Auditor-General rogether with ant apex Treasury official” 5. Given the challenge by one of the political parties to the Report which has been prepared by the Minister of Police regarding the security aspect of the identified measures, the President recognises (as it is presumed both the Public Protector and both political parties would do) that it would no longer be appropriate for the SAPS to be involved in any such security exercise. Nor would it be appropriate Record: Vor 2. pa See Answering Af page 269. paragraph 1.1 Javit in the Den atic Afliance Application, Record. Vot 9, para 216, p. 968 Access to Justice for Alf Always quote my reference numberfor the President to make the determination himself, for the reasons advanced in the papers 6. Accordingly. the President has proposed that the Auditor-General and Minister of Finance designate an appropriate person (or persons) each to carry out the exercise. The substitution for SAPS of the Auditor-General. an independent chapter 9 institution with a mandate to strengthen constitutional democracy in the Republic, can only enhance the process the Public Protector had in mind. in the ed circumstances arising from the controversy regarding the SAPS report chang The FFF, DA and Public Protector have not responded to this proposal The President accordingly proposes. in light of all the papers filed and written submissions delivered, an order by awreement that gives effect to the determination made by the Public Protector. The proposed order is attached in draft, In essence, the President proposes that designated appointees of the Auditor-General (substituting now for SAPS) and the Minister of Finance be appointed within 30 days of date of the order to determine the reasonable portion of the reasonable cost of those features of the Nkandla upgrade project not reasonably relaied to security including the visitors’ centre. the “amphitheatre” the cattle kraal, chicken run and the pool. (The issue of reprimands has fallen away. as neither then-minister holds office). 8, If the Court is in agreement. it is proposed that the attached draft order be made on 9 February 2016. Once the exercise has been completed and a figure determined. satedly indicated both before this Court and he President has rep before Parliament that (notwithstanding, his criticisms of the Public Protector’s report, to which he adheres} he is willing to be bound by the outcome of a fair and objective process. He reiterates his willingness to repay any figure so determined. 9, It is hoped that this letter and the reiteration of this proposal will assist in ensuring the expeditious finalisation of this matter.! Section 18] and 188 of the Constitution See paragraph 76 of the President's Writers Submissions in ing Affidavit in the DA ay be EPP application and paragr President's Answ Access to Justice for All Always quote my reference number10. The President has considered this proposal seriously and upon legal advice. and believes that i ince will end a drawn-out controversy and promote nation- building and unity in South Africa. The President approaches the matter on the basis that the issue of the exact nature and ambit of the Public Protector’s remit is pending before the Court in a few w cks, in the S4BC/Morsoeneng proceedings and a practical agreement by the parties. endorsed by the Court. to implement the recommendations in this instance renders a determination of those powers moot in the present case, HL. We await any directions from the Court regarding the future conduct of the matter This letter is copied to each of the parties” attomeys of record, and to the Minister of Finanee and Auditor-General by virtue of the proposal to engage their ssistance. Yours faithfully FOR: STATE ATTORNEY (PRETORIA) cc: ce: MESSRS MINDE SCHAPIRO & SMITH INC PER FAX: — (021) 918 9090 ATTENTION: MS JONKER Email: elzanne@mindes.co.ra MESSRS ADAMS & ADAMS INC ATTENTION: MR ANDREW MOLVER EMAIL: Andrew.molver@adamsad: lams.com, Access to Justice for All Always quote my reference numberCC: GODLA & PARTNERS EMAIL: Irgodla@gpattomneys.co.za CC: STATE ATTORNEY CAPE TOWN EMAIL: Imanuel@justice.gov.za Access to Justice for All Always quote my reference numberIN THE CONSTITUTIONAL COURT OF SOUTH AFRICA CASE No: CCT174/15 and In the matter between: DEMOCRATIC ALLIANCE Applicant and THE SPEAKER OF THE NATIONAL ASSEMBLY REPUBLIC OF SOUTH AFRICA and 3 OTHERS Respondents And THE ECONOMIC FREEDOM FIGHTERS. Applicant and THE SPEAKER OF THE NATIONAL ASSEMBLY REPUBLIC OF SOUTH AFRICA and ANOTHER Respondents DRAFT ORDER It is ordered that: 1. The Auditor-General together with an official from the National Treasury designated for the task by the Minister of Finance ("Treasury Official’) are directed to determine the reasonable cost of the measures implemented by the Department of Public Works at the Nkandla homestead that do not relate to security and which include the Visitors’ Centre, the ‘amphitheatre’, the cattle kraal, the chicken run and the swimming poo!2, The Auditor-General and Treasury Official are to determine the reasonable percentage of the cost of those measures which ought to be paid personally by the President, taking into account the Department of Public Works Apportionment Document which appears at page 248 of the Public Protector’s Report 3. The Auditor-General and Treasury Official are to report back to this Court on the outcome of their determination within 90 days of the date of this order; The President is to pay the amount determined by the Auditor-General and Treasury Official 5. All questions of costs are reserved for determination on a date to be determined by the Registrar, pursuant to 3 above