Ministers drop Nkandla court action

2013-11-14 13:07

Ministers in Cabinet’s security cluster have abandoned a court application that sought to prevent Public Protector Thuli Madonsela from releasing her interim report on upgrades of more than R200 million to President Jacob Zuma’s Nkandla home.

The cluster has also promised to, by tomorrow, give Madonsela comment regarding what it views as security threats contained in Madonsela’s report.

The surprise decision is contained in Police Minister Nathi Mthethwa’s replying affidavit, which was filed today in response to Madonsela’s hard-hitting opposing affidavit filed on Tuesday.

Mthethwa, a member of the security cluster, said the reason they have abandoned the application to interdict Madonsela was because the latter had made an undertaking that she would consider the cluster’s comments before releasing the interim report to implicated and affected parties.

“In the answering affidavit she makes an undertaking that our comments will be considered and integrated into the provisional report before it is released to the affected and interested parties.

“We welcome the undertaking, and for the reason, the relief sought will not be persisted with. The only issue ... will be that of (legal) costs,” said Mthethwa.

Mthethwa has denied allegations by Madonsela that he and other ministers in the cluster, including Public Works Minister Thulas Nxesi, State Security Minister Siyabonga Cwele and Defence Minister Nosiviwe Mapisa-Nqakula, tried to persuade her to stop the Nkandla investigation.

“The applicants are not barring the release of the provisional report. I deny this (allegation). The applicants have always cooperated with the investigation of the respondent,” said Mthethwa in court papers.

The decision to abandon the application will be viewed as a victory for Madonsela who had come out with guns blazing in her opposing affidavit and lambasted the ministers for “obstructing” the probe at every turn since it began.

Mthethwa expressed unhappiness with Madonsela’s view that the cluster only needed a couple of hours to two days to read the report and assess whether there were any security concerns.

Madonsela had denied the cluster an extension of ten days for it to read the report and assess it, claiming it would not take longer than two days to identify security threats in the report.

This prompted them to apply for the interdict to prevent Madonsela from releasing the provisional report to affected parties – including constitutional law professor Pierre de Vos and DA parliamentary leader Lindiwe Mazibuko – before she releases the final report to the public.

Mthethwa said: “I take issue with the last part of this paragraph (in Madonsela’s opposing affidavit) in which the respondent suggest that we required a few hours or at least two days to provide written comments on her report.

“It is difficult to understand how matters of security that impact on the safety of the President will require such an extremely short period of time to address, especially given the respondent’s untenable view that those matters were to be raised by us personally without the assistance of our security experts.”

Mthethwa rejected Madonsela’s view that she could decide what information would constitute a security breach.

“It will be argued at an appropriate time, when the need arises, that the respondent not being an expert on matters of security cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report,” said Mthethwa adding that if Madonsela released the report without comments from the security cluster she would have acted beyond her powers.

Mthethwa argued that Madonsela did not have the “competence” to deal with security matters and that this responsibility rested with him, Mapisa-Nqakula and Cwele.

He rebuffed claims that there were attempts to interfere with the operations of Madonsela’s office.

“The applicants have no intention, whatsoever, to interfere with the functioning of the office of the respondent or her independence. The only interest the applicants have in this matter is where security issues arise we have a constitutional obligation to preserve national security which, ordinarily, include the security of the head of state,” said Mthethwa.

He also rejected Madonsela’s assertion that the cluster’s decision to share the provisional report with other officials could place the report at risk of being leaked.

“A small group of senior security officials, all of whom have the necessary security vetting, have been provided with the provisional report at a secure location to deal with the security measures contained in the provisional report. At no stage are the security experts allowed to leave the secure location with the provisional report,” said Mthethwa.

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