Nkandla report: Nxesi must pay cost of DA’s application

2014-02-18 13:02

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Public Works Minister Thulas Nxesi will pay the costs of the Democratic Alliance (DA) application to have the full Nkandla report released, the Western Cape High Court has ruled.

This, after DA parliamentary leader Lindiwe Mazibuko was informed by Nxesi’s department that there was no difference between the January 2013 report she sought and the report released in December.

This information, in effect, made the matter moot.

Mazibuko last year requested the disclosure of the public works task team report on security upgrades to President Jacob Zuma’s private home in Nkandla.

She first tried to gain access to the January report in terms of the Promotion of Access to Information Act (Paia), but was rejected. She then turned to the Western Cape High Court, which ruled in October that the DA’s bid for the report to be released was urgent.

In December, Cabinet resolved to release the report and held a media briefing. Mazibuko said at the time the DA was not satisfied that the document released was the actual report.

She said it appeared it had been rewritten in a way that hid the nature and extent of any exclusions of sensitive security aspects of the upgrade.

At the time, Nxesi said the reason for classifying the report as top secret was because exclusions were made in terms of the “nature and location of the bulletproof windows and the safe haven”.

In a further affidavit filed on Friday, Mazibuko said she had received an affidavit from Nxesi’s special adviser, Phillip Masilo, with a “shocking” revelation that the December 19 report was in fact January’s task team report and had not been altered.

Mazibuko said this disclosure led her to conclude that Nxesi had misrepresented the report to the public.

“In truth, there never was any lawful basis to classify the report as top secret ... In light of what Masilo has revealed, the minister abused the government’s national security protections,” she said in the affidavit.

“As I pointed out in my replying affidavit, seeking to shield the president from political embarrassment is not a matter of national security which justifies a top-secret classification.”

She said the department’s director-general, listed as the second respondent, had no legal basis to ignore her Paia request.

“The respondents now claim that this matter is moot. They, however, do not concede that the conduct of the minister and the director-general was unlawful and invalid,” Mazibuko said.

In her affidavit, she asks the court to declare the conduct as such so the respondents would know how to deal lawfully with such a Paia request in future.

She said she was entitled to the costs of the application. In court today, her legal team handed in a draft order agreed to by both parties in which Nxesi and his director-general would pay Mazibuko’s costs, including those incurred at hearings in October last year and the one today.

The draft order states: “Given the release into the public domain of the task team report, no order is made in respect of the remaining payers in the notice of motion”.

Judge Jeanette Traverso finalised the order.

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