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Madonsela: Nkandla defenders don't understand the law

Glynnis Underhill

The public protector is puzzled by the actions of a group of senior lawyers who say they are mounting a legal challenge against her Nkandla report.

Public protector​ Thuli Madonsela. (David Harrison, M&G)

Public protector Thuli Madonsela is keeping a cool head and refusing to be riled by a group of lawyers from KwaZulu-Natal who are criss-crossing the country and using public platforms to liken her Nkandla report to a "joke".

While Madonsela has welcomed the announcement that she will be featured on Time magazine's list of the world's top 100 influential people, back home she is facing an avalanche of criticism.

"The public protector has no idea where these lawyers come into the picture," said public protector spokesperson Oupa Segalwe. 

"The legal process is clear; the public protector makes findings, advises the president and other competent authorities on what to do in the event her findings point to improper conduct such as maladministration, abuse of power, abuse of state resources or unethical conduct. Thereafter, the ball shifts to the court of the president and others to implement the advice on remedial action. In the case of the president, the remedial action required him to pay for what was not part of security upgrades and to reprimand the ministers for their improper conduct and advise Parliament on action taken or to be taken and any comments on the report."

Madonsela's report revealed Zuma and his family had improperly benefited from some of the lavish upgrades to his Nkandla estate in KwaZulu-Natal, which she said would amount to R246-million on completion. This prompted a group of lawyers from the province to come out in support of the president and align itself to the Zuma-supporting South African Democratic Teachers' Union, referring to itself as the Concerned lawyers and Educationists for Equality before the Law (Cleeblaw) 

The lawyers say they are in the process of preparing a court application to seek a review of the Nkandla report. "We have been advised by our legal team that all parties concerned have 180 days within which to bring a review application", said Zuma loyalist lawyer Comfort Ngidi this week.  

Contentious views
In the meantime, the lawyers are continuing to speak on public platforms around the country, presenting their contentious views on the public protector's Nkandla report. Madonsela is not invited to give her view at these presentations. 

Titled "Legal presentation of our case for the review of the public protector of RSA", the presentation was recently delivered by lawyer Solomuzi Mdledle to a group of professionals in the Durban City Hall. 

The presentation has significance for what might unfold in court, as Mdledle is the instructing attorney in the application for the review of the Nkandla report.

Mdledle told the Mail & Guardian that he is a labour and administrative lawyer, and had practised as a criminal lawyer for three years of his 20-year career.

The lawyers considered their legal challenge of the public protector's report an "urgent matter", said Mdledle. "When we file will depend on our senior counsel, and how far they are in finalising the papers." 

Asked if they were continuing with their roadshows, Mdledle said the group was mushrooming, and he had just received an invitation to an upcoming presentation in Bloemfontein. The Cleeblaw movement was first launched in Durban last month.

"What is actually happening is that it is no longer a case that is being dealt with by the KZN lawyers and educators. It has actually spread throughout the country," said Mdledle. "We get invited sometimes and sometimes they do their own presentations because we have been joined by a number of others who feel the same."

Present papers in court
So what does the public protector make of Mdledle's presentation? As requested by the M&G
, her office studied the paper and gave its opinion.

"Insofar as the report's contents are concerned, the public protector is now functus officio," said Segalwe, referring to the principle in terms of which decisions of officials are deemed to be final and binding once they are made. 

"Surely the lawyers [though specifically in criminal law] should know that like a commission of inquiry, once a report has been issued, that is the final word. As to the issues raised, firstly, if they read the actual report, they would know that the president's qualification for security upgrades [at his or his office's request] at his private residence has never been an issue, as that is a given under the Cabinet Policy of 2003.

"The simple question was whether the upgrades went beyond security upgrades. The answer is a resounding 'yes'. The next issue was, could the president and the ministers have stopped the excesses and did they have a duty to do so? The answer is 'yes'."

Yet if Mdledle's presentation is anything to go by, the Cleeblaw lawyers will present papers in court claiming her report lacks credibility, and her findings have no basis in law.

'Lack of understanding?'
"The public protector clearly displays a lack of understanding of her powers as the public protector, as well as an understanding of the law in general," Mdledle wrote in his paper.

Under the heading "Issues of Common Cause", Mdledle stated that the government never built any house for President Jacob Zuma at Nkandla. "The actual cost of the security upgrades in the private residence of the president are R71 212 621.77, inclusive of R20 688 736.89, which was for professional fees, making the real cost of the upgrades to be R50 523 885," he wrote.

Madonsela revealed in her report that the upgrades to Nkandla would, by the time it was completed, cost R246-million. However, Mdledle insisted that more than R135-million was used on upgrades done on state land for its own purposes, including accommodation for police, roads and earthworks.

On the procedural issues of the report, the lawyers claim that "the principles of natural justice" were not complied with by the public protector.

For example, they maintain the veracity of the evidence procured was never tested and people were not given a chance to either call witnesses to support their case, nor allowed to cross-question their accusers.

"The procedure outlined in section 7 of the Public Protector Act 23 of 1994 was not applied. Implicated individuals were not afforded a chance to appear and confront their accuser as prescribed by the act. Even when some implicated individuals, including the president, appealed on her to consider applying the stated procedure, she could not concede," stated Mdledle. "Please note that this process is entrenched in the Constitution."

The analysis made, and findings arrived at, were based on telephonic interviews, other interviews and documents, some of which were obtained from the M&G website, he wrote. 

Leaking of the draft report 
The leaking of the draft report to the M&G put the credibility of both the office and the report in the balance, said Mdledle, claiming the refusal by the public protector to investigate leaks of the report is an action that undermines section 7 (2) of the Public Protector Act.

Mdledle stated that the public protector had made far-reaching conclusions and findings based on an incomplete report. "In page 108 (5.1) she makes a serious admission that she did not complete the report, apparently because of a lack of resources, delays in the investigation, could not access banks, could not verify overcharging by service providers," he wrote. "Yet she had come to conclusions and findings about the very same issues as though she investigated them."

The president was "supposedly guilty of having tacitly accepted the implementation of all measures at his residence", he wrote.

The list of this "joke" is endless, stated Mdledle. 

"While the president and his family are supposedly guilty of having improperly benefited from the kraal and chicken run, but the same criminal must approach, of his own accord, the National Treasury and the South African Police Service to 'determine' the amount he is found guilty of, and out of that amount he must pay [not all the money he is guilty of] but a 'reasonable percentage'," wrote Mdledle. "After paying that reasonable percentage, the president must now 'reprimand' all ministers involved for the appalling manner in which Nkandla was handled and state funds were abused."

'Inconsistencies'
Segalwe said the public protector's office had noted what the Cleeblaw lawyers had to say about the procedure of the investigation. "Their comments are totally unfounded and clearly show that they are confusing the public protector's inquisitorial justice with the adversarial justice of our courts," he said.

"The public protector is not aware of any inconsistencies, as alleged by this group. The report is evidence-based and speaks for itself. It is clear that the intentions of these people is beyond publicity. However, they are free to play whatever game they want to play. But should it include this office, a deposit will be required."

Segalwe claimed that the lawyers were "not speaking to the report, but rather the speech read on the day of its release". "If they want to be taken seriously, they should read the report," he rounded off.


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