Nkandla: Thuli Madonsela on the warpath

2013-11-11 19:59

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The request by Cabinet's security cluster to review Public Protector Thuli Madonsela's interim report into the controversial upgrades to President Jacob Zuma's Nkandla home is "unlawful, unconstitutional and violates the independence of her office", her office has said.

This is part of the argument that Madonsela plans to put forward in her replying affidavit against the cluster's court application to prevent her from releasing the report to affected parties.

In a statement released today, in which she seeks to clarify her reasons for denying the security cluster an extension to study and comment on any revelations in the report that may compromise  Zuma's security and that of the state, Madonsela said it would not be in the "public interest" to allow the cluster "exclusive possession of the report".

"On the reluctance to grant the state a longer extension, the Public Protector was of the view that acceding to the request would be an injustice (to) the affected and implicated parties," said her spokesperson, Kgalalelo Masibi.

Madonsela also believes the cluster did not give her enough opportunity to clarify her stance when the ministers insisted that she accede to the cluster's demand for an extension of ten working days and respond within an hour.

She had already prepared a response to the cluster's demand when she was served with court papers on Friday.

Public Works Minister Thulas Nxesi had sent her the letter of demand the previous day, on Thursday last week.

"The security cluster gave the Public Protector no opportunity to do so because the letter requesting more time arrived on the afternoon (around 2pm) of Thursday, November 7 2013, indicating that if she did not respond in an hour, it would be assumed that she was declining.

"The Public Protector was out of town on the day and the state was made aware of this. She only got the information later that night," said Masibi.

Madonsela had sent Nxesi a response explaining that she was "concerned that leaving the report in the hands of the security cluster for an unduly extended period would prejudice in particular those that she has made provisional adverse findings against and those she has quoted as having provided her with evidence and who, to date, have not received the report.

"It would also not be in the public interest if the security cluster has exclusive possession of the report," said Masibi.

Today's statement follows the cluster's media briefing on Saturday during which it sought to clarify why it had gone to court to try and interdict Madonsela.

Madonsela contradicted Justice Minister Jeff Radebe's statement that it was she who had approached the cluster to review the provisional report.

"It was not her (Madonsela) who voluntarily decided to share the report in question with the concerned organs of state ahead of other parties as has been suggested. It was, in fact, these organs of state that made a special request to the Public Protector, advancing the reasons that they wanted to ensure that the content does not compromise the security of the President," said Masibi.

Madonsela would fight the interdict, to be heard in the North Gauteng High Court on Friday, on two grounds.

"The first is that the security cluster says it has a right to a provisional report and the other being that the court papers are in effect asking for an extension that goes beyond the 10 working days requested in the two letters (sent) to her.

"(In court papers) the security cluster requests that they be given further opportunity to peruse the 'revised' provisional report to determine whether all the security concerns would have been addressed and if not be granted further opportunity to make written comments within seven days. In the event the Public Protector does integrate all of the concerns raised, the security cluster requests leave to approach the court," said Masibi.

On Saturday, Radebe moved swiftly to allay any fears that the ministers had threatened Madonsela with criminal charges if she went ahead and released the report.

"There is nothing that we have said or done that would suggests we want to supersede the mandate of the Public Protector. The function, mandate and power of the Public Protector are clearly stipulated in our Constitution and also in the Public Protector Act.

"Government has no role in how the Public Protector deals with her report. Even in this case it is the Public Protector herself who gave us this provisional report so that we can check about the security concerns. It was not initiated by us. It was the Public Protector herself. Whether she makes the report public or confidential those are the decisions that lie at the discretion of the Public Protector and we as the executive have no role to play," said Radebe.

The DA has also slated government's bid to interdict Madonsela as "unconstitutional".

"The behaviour of the ministers in the security cluster is indicative of the lengths that President Zuma and his cabinet ministers will go to in burying the truth about the R200 million of public money spent on the President’s private Nkandla home," said DA parliamentary leader Lindiwe Mazibuko, who lodged the complaint over the Nkandla upgrades with Madonsela.

Mazibuko is among the "affected and implicated" people that the cluster wants prevented from viewing the report before it satisfies itself that it does not compromise Zuma's security.

"The actions of these ministers are an attempt to shield President Zuma from accountability by dragging this entire process out for as a long as possible," said Mazibuko.

The DA was seeking legal advice to determine what steps, if any, it could take to ensure that the report is made public.

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