Weekend Argus (Saturday Edition)
Nkandla report battle halted
For Madonsela it’s a ‘resounding victory’ but will hostilities be renewed?
HAVE they buried the hatchet, or merely sounded a tactical retreat before renewing hostilities?
This question was not answered as a tumultuous week of tit-for-tat accusations between the public protector and security cluster ministers ended in anticlimax yesterday, with the government agreeing to foot the bill for their bruising encounter, and walking away from its legal challenge.
The ministers had already, in court papers, abandoned their application seeking five orders against the public protector, including the right to vet the contents of her provisional report on her investigation into the R206 million security upgrades at President Jacob Zuma’s Nkandla home.
Public Protector Thuli Madonsela’s attorneys called it “a resounding victory, not only for the independence of the public protector’s office but for the constitution and the country”.
The ministers claimed, through spokesman Mthunzi Mhaga, that they had achieved their objective.
But whether Madonsela must make all the changes to her report the ministers have requested on what they had called a “plethora” of security breaches, remains moot.
Mhaga did not rule out possible further legal action, saying the ministers would be “guided by how she deals with our response”, which they had until the close of business yesterday to submit. “We hope she will consider our comments on security concerns,” he said.
Madonsela’s spokesman, Oupa Segalwe, said the request by the ministers to view her report again, after she had made any changes she deemed proper in light of their submissions, was among the matters they had withdrawn. “So as things stand, our understanding is that we are sticking to the process as determined by us.”
Madonsela would consider the submissions, make changes if warranted, and share the report with the complainants and those implicated.
She has already, in her affidavit responding to the ministers’ court application, poured scorn on their claim it is riddled with security breaches.
Segalwe said that as some of the departments represented by the ministers were also implicated, they would receive it, along with the other parties, and have another opportunity to comment – but this time only on the factual findings.
“In the next opportunity they will be engaging with the content, because from our side the security issues would have been dealt with,” Segalwe said.
At the heart of the showdown is Madonsela’s argument that in terms of the law governing her office and the constitu- tion, she must exercise her powers “without fear, favour or prejudice”.
The constitution gave her the power to probe any alleged or suspected improper conduct in state affairs, to report on it, and to take appropriate remedial action, she said yesterday.
“There is no provision for sharing that power with another person or entity.”
Segalwe said giving the ministers the report to “edit to their satisfaction” would be tantamount to allowing them to dictate terms on what went into it.
Madonsela had argued that her reports could be kept from the public only in exceptional circumstances, which only she could determine. But the ministers claimed they had a constitutional duty to defend national security, including the safety of the president.
They argued that Madonsela was not qualified to judge whether her report contained any security breaches.
In his affidavit filed on Thursday, Police Minister Nathi Mthethwa said this would be argued “at an appropriate time, when the need arises” – leaving the door open for further legal challenges.
The Director of the Centre for Constitutional Rights, Johan Kruger, said the question would almost certainly have to be settled by the courts.
“There’s a strong interest, a constitutional interest, on both sides. Each party believes they are within their rights. That has to be interpreted objectively, and I doubt either party is fully objective at this point,” he said.
The security concerns had to be tested against the provisions of the Promotion of Access to Information Act, which didn’t allow for classification to spare state blushes.
“They can’t use national security and classification for the sake of hiding information that has nothing to do with national security, and that has everything to do, possibly, with maladministration or even embarrassment to government,” he said.
craig.dodds@inl.co.za