Thuli Madonsela: How ministers obstructed Nkandla probe

2013-11-13 13:43

Public Protector Thuli Madonsela has revealed how Cabinet ministers had tried to stop her, on numerous occasions, from probing the controversial R206 million upgrades to President Jacob Zuma’s private residence in Nkandla.

She has also revealed that the ministers unconstitutionally “obstructed” her investigation at critical stages.

“At a critical stage of the investigation into the Nkandla project, I regret to say that my office and its investigating team were frustrated, and in many instances obstructed in our efforts,” said Madonsela in her opposing affidavit filed against the state’s court application to prevent her from releasing her provisional report.

Madonsela wants to release the report to affected parties including DA parliamentary leader Lindiwe Mazibuko and constitutional law expert Professor Pierre de Vos who had lodged complaints over the Nkandla upgrades with her office.

In the affidavit, Madonsela hits back at ministers Thulas Nxesi (public works), Siyabonga Cwele (state security), Nathi Mthethwa (police), Nosiviwe Mapisa-Nqakula (defence) and Jeff Radebe (justice) for attempting to stop the probe from the onset.

It is the first time Madonsela has revealed attempts to kill the probe.

She also contends that there is no basis to the claim by the security cluster, made up of the mentioned ministers, that the report into the Nkandla upgrades will compromise either Zuma’s security or that of the state.

The affidavit, filed yesterday, also reveals that despite numerous appeals by Madonsela to be given a copy of public works’ own task team probe into the construction of Nkandla – which has been kept under wraps by Minister Thulas Nxesi – she was never given a copy to help her in her investigation.

Instead, Madonsela was only allowed to view the “secret” report in the presence of government officials.

This report is also the subject of a high-court bid by the DA to have it released publicly.

The first time, Madonsela says, ministers tried to convince her to drop the probe was when she met them in April this year to discuss concerns related to Zuma’s security being compromised.

“Resistance to the investigation was very strong at this stage and there were separate attempts by the minister of police, and thereafter collectively the ministers of police, public works and state security, with the assistance of the acting state attorney and the chief state law adviser to stop the investigation,” reads Madonsela’s affidavit.

Her affidavit reveals that Madonsela was told to suspend her probe because Auditor-General Terence Nombembe and the Special Investigating Unit were conducting similar investigations on Nkandla.

But she declined the request because Nombembe informed her that he had also refused to investigate the matter and the SIU had not received any order, normally a proclamation by Zuma, for it to probe the Nkandla upgrades.

“Evidently it was contemplated that such investigations (by the AG and SIU), had they been initiated, would have reported to the President regarding contended irregularities at his own private dwelling,” said Madonsela, which would have raised issues of a conflict of interest.

She has also lambasted the ministers for releasing the provisional report to officials against whom she may have found in the investigation.

Madonsela also argues that the ministers acted “unconstitutionally” by trying to dictate how she should run her investigation.

“At no point did I abrogate to the security cluster or any state officials any entitlement to interrogate the exercise of my function in this respect. That of course would be unlawful and ineffective. The duty to ensure that any report I ultimately issue should be open to the public is one solely imposed on me, and specifically requires ‘exceptional circumstances’, in my opinion, for any report to be kept confidential.

“We also knew that the applicants themselves have an obvious interest in the report at both an official and personal level. This of course has now been exacerbated despite what was agreed ... the provisional report has been disseminated amongst certain of the officials who themselves may hardly be in a position to avoid a conflict of interest.”

Madonsela has also revealed that it was former SA National Defence Force surgeon-general Vijay Ramlakan who first requested, at a meeting with ministers on May 31 2013, that she give the security cluster a copy of the provisional report in order for them to assess whether it compromised Zuma’s security.

But Madonsela has questioned why Ramlakan, who is not a security expert, made the request.

“One of the officials present at the meeting, Lieutenant General Ramlaka, who was the main coordinator ... not, to my knowledge a security expert, suggested that the concerns raised with regard to security issues may be addressed by granting officials from the security cluster access to the provisional report,” reads the affidavit.

Madonsela said she acceded to the request because “I was concerned about the way the investigation, to date, has been impeded by reliance on contended security issues”.

She said one of the ministers had subsequently, at a meeting on August 8 2013, made the same request.

Madonsela has decided to give the provisional report to the North Gauteng High Court to show that she excluded any information that may jeopardise Zuma’s security or that of the state.

“Information and annexures which, in my view, could constitute a breach of security were excluded. I submit that this would be evident to the court itself on reading the provisional report.

“The applicants themselves (are) unable to mention one (security breach in the report),” reads the court papers.

Madonsela still contends that she declined the cluster’s request for an extension to read the report because “they have had months, if not years, to be acquainted with what they see as potential security issues”.

On more than three occasions Madonsela argues that the ministers have misled the court by “misportraying” and “omitting” facts leading up to the court action.

The application to interdict Madonsela will be heard on Friday.

Full document – Security cluster versus Public Protector: Opposing affidavit

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