An aggressive Supreme Court of Appeals bench on Thursday cornered counsel for the Public Protector, who had appealed a High Court judgment overturning the Chapter 9 institution’s report on the Oilgate scandal.
The Mail & Guardian broke the scandal, the high point of which was the 2005 revelation that connected businessman Sandi Majali had diverted R11-million belonging to state-owned PetroSA to the ANC.
Then-Public Protector Lawrence Mushwana, who now chairs the South African Human Rights Commission, rubbished the M&G‘s stories in a report, saying: “Much of what has been published by the Mail & Guardian was factually incorrect, based on incomplete information and documentation and comprised unsubstantiated suggestions and unjustified speculation.”
The M&G, calling Mushwana’s report a “whitewash”, took it on review under the Promotion of Administrative Justice Act, both to seek vindication of its investigative work and to hold the protector accountable to the public.
Judge Ntsikelelo Poswa of the North Gauteng High Court found in the M&G’s favour two years ago, setting the report aside and ordering that the Public Protector reinvestigate the scandal. Mushwana filed leave to appeal before his term of office expired in October 2009. He was succeeded by Advocate Thuli Madonsela, generally considered less politically pliable than Mushwana.
A panel of five appeals judges, led by Judge Robert Nugent, heard the appeal in Bloemfontein on Thursday. Under at-times aggressive questioning from the judges, Advocate Vincent Maleka, for the Public Protector, made a series of concessions, all but conceding that Mushwana had not done a proper investigation and that his findings against the Mail & Guardian were not justified.
From the facts before the court it was clear that while the M&G had presented extensive documentation online to back its stories, Mushwana’s “investigation” had entailed little more than asking officials for their versions, which he did not test. At one point Nugent asked: “How on earth is it possible to say that ‘much of this [in the M&G] is unsubstantiated when all of this [evidence] is on the Mail & Guardian website?”
When Maleka protested that the M&G had relied for some part on undisclosed sources, Nugent retorted: “Don’t forget that it was undisclosed sources who brought down the president of the United States [Richard Nixon, in the Watergate scandal] — because what they said was true.”
The M&G argued that its use of undisclosed sources was no obstacle to a proper investigation of the scandal, as they were used only peripherally. Documents and open sources substantiated key allegations.
Judgement was reserved.