The public protector's damning report into the IEC leasing deal has proven to be a legal nightmare, and is unlikely to be resolved before elections.
With national elections just under two months away, the Independent Electoral Commission (IEC) has found itself in something of a legal nightmare in dealing with the public protector's damning report into its leasing deal.
Public protector Thuli Madonsela found in August 2013 that a lease deal in which IEC chair Pansy Tlakula was involved then as chief electoral officer was "irregular … and violated procurement rules".
Madonsela took particular aim at Tlakula in the report, saying she played a "grossly irregular" role in procuring the Riverside Office Park building in Centurion, Pretoria.
The report caused a sensation at the time for the historically stable and widely respected IEC, with tensions among the five commissioners coming to the fore.
But Madonsela's recommendations have been less than easy to follow for those wanting to bring the matter to a close.
Waiting for elections
It now appears that it is unlikely to be resolved any time soon, after the issues were first revealed in a report, already overdue, six months ago. The report relates to events that happened in 2009.
"I think there is understanding, including from the public protector, that there are certain things we might not be able to deal with till after the election," said IEC deputy chair Terry Tselane, who has been appointed to speak on the matter. "But we are in touch with the public protector's office, and she has sent us correspondence wishing us the best for the elections."
Jurisdiction over who can adjudicate the matter has presented a further headache for all involved.
Tselane emphasised that the commissioners may take action to address issues in the organisation as raised by the public protector's report, but that they were not empowered to judge where Tlakula is concerned.
This has left the long-serving Tlakula in something of a legislative blind spot.
A parliamentary ad-hoc committee decided against advising on the matter in October 2014, saying Madonsela overstepped her authority in referring the IEC matter to them.
Electoral court legitimacy
Madonsela also recommended the IEC's own court, the electoral court, deal with the findings of her report.
But the electoral court is legislated to adjudicate matters relating to commissioners. Tlakula was chief electoral officer during the events detailed in the public protectors report, and thus her conduct falls outside the ambit of the electoral court.
The matter is further complicated by the fact that Tlakula has taken the public protector's report on judicial review. The matter is pending at the high court in Pretoria and Tlakula has refused to comment further after vehemently protesting her innocence when the report was first released.
Several commissioners as well as those political party representatives closely involved with the IEC say the public protector's recommendations are difficult to follow, given the legal conundrum it represents. The IEC is a chapter nine institution, a body whose independence is strongly protected by the Constitution.
A further problem with the report is the action it recommends against a few officials in Tlakula's office at the time of the leasing deal, who are still at the IEC and integral to the smooth running of the upcoming election.
Senior respected bureaucrats in the IEC – including chief executive Mosotho Moepya and his deputy Norman du Plessis – were in the firing line. The report recommended that the two face disciplinary action.
Du Plessis reached retirement age last month and was due to leave the organisation. This was despite the fact that he represented invaluable experience to the IEC, according to two sources. A request to extend his contract by six months in order to help with elections on May 7 was turned down.
Moepya came under enormous pressure since the report's release but was not able to comment until other processes related to the report were concluded. He told the Mail & Guardian he would focus on the smooth running of the general election.
Tselane has echoed the same sentiment, as the body strives to maintain a stable front ahead of elections.
"Our focus largely is delivering the elections," he told the M&G.
But the recommendations of the report demand on-going action at a time with the IEC is at its busiest.
The latest action by the four IEC commissioners tasked with dealing with the report was to seek a legal opinion on addressing organisational and procedural problems identified in the report.
But lawyers told the commissioners to first wait on a forensic report from Price Waterhouse Coopers, commissioned by treasury, on the processes to secure the lease.
Tselane said treasury's report landed a few weeks ago. Excerpts of the report were leaked to the City Press, with sources who claimed to have seen it saying it recommended that criminal charges be laid against those involved in the deal. That would put Tlakula and Moepya square in the firing line, though City Press reported that no people were named.
But sources close to the IEC said the selected leak seemed design to cast events in a particular light. Tselane agreed, saying the leak didn't give the full picture.
"That leak was very selective," he told the M&G. "Whoever gave the report … either it was misconstrued or designed to cause confusion."