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Another Nkandla setback for minister

2014-04-30 05:30

Pretoria - Beleaguered Public Works Minister Thembelani Nxesi suffered another setback when the North Gauteng High Court in Pretoria ordered him on Tuesday to provide the Mail & Guardian Centre for Investigative Journalism with a full set of Nkandla documents.

The Western Cape High Court in Cape Town in February ordered Nxesi to pay the costs of the DA's application to have the full Nkandla report released.

The application became moot after Cabinet in December last year resolved to release the report and the department informed the Democratic Alliance there was no difference between the January 2013 report it sought and the report released in December.

The report exonerated President Jacob Zuma from any wrongdoing.

In contrast Public Protector Thuli Madonsela's report, which was released last month, found that the president had "unduly benefited" from the upgrades to his private home in KwaZulu-Natal and recommended that he should pay back at least part of the over R246m spent on the improvements.

The Parliamentary ad hoc committee which was set to consider President Zuma's submissions on the Public Protector's report was effectively dissolved on Monday.

This was after Parliament carried the ANC's proposal to let the matter stand over for the next Parliament to consider after the 7 May elections.

The committee said there was insufficient time to complete the work as set out in the terms of reference before the current Parliamentary term ended.

On Tuesday Judge Vuyelwa Tlhapi ordered Nxesi and the department to furnish the centre with a full set of Nkandla documents, including documents filed at the department's head office in Pretoria, within the next 30 days.

The department's director general Mziwonke Dlabantu was ordered to comply with section 23(1) of the Promotion of Access to Information Act to account for all those documents the department claimed could not be traced or did not exist.

The court also granted a costs order against Nxesi and his department.

Although the centre asked for the application to be referred for oral evidence so that the records not disclosed could be examined, Tlhapi said it would not yield any result because the department had not completed the exercise of disclosure and the court might embark on a wild goose chase.

"I take this dim view because of the dilly-dallying conduct displayed by the respondents in dealing with this request for access to information."

Tlhapi said in her view the centre was correct in its submission that the department had failed to disclose documents pertaining to top management or top level meetings or decisions.

She said a leaked document showed there was reason to believe there were documents in existence which were not disclosed.

"There were no disclosures from Head Office, Pretoria and no search was conducted for the missing documents at such office.

"The idea or suggestion of the possibility of no record of documents in writing or no records being kept pertaining to "top management" decisions being available, especially those records like in this matter that have or might have financial implications to the Nkandla project, is a serious indictment against those in public office who deal with the business of government and this should not go unchallenged.

"Failure to keep record or a tendency to lose documents, or to hide them or to deal with government business under a cloud of secrecy where it is not justified or, like in this matter to confine disclosure to the project managers documents in situations where a government department is taken to task or where the shoe might pinch certain officials ... constitutes a dereliction of one of the most important obligations on a government, which is to keep proper records.

"Such conduct on the part of government does not advance the values espoused in our Constitution, that of a democratic, transparent and accountable government.

"It is in the public interest to keep record in order to give credence to the business of government itself and to those who govern.

"Records are kept so that such records are preserved for posterity in keeping with our national heritage.

"The National Archives Act... places an obligation on all government employees from the top to the bottom to create proper records, whether these concern casual, ordinary or classified information, when conducting government business," Tlhapi said.

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