The Mail & Guardian will launch a high court application to review and set aside or substitute Public Protector Lawrence Mushwana’s findings on the Oilgate scandal — not only his criticism of the M&G, but on the substantive findings too.
The report has largely been panned as a whitewash; the opposition Democratic Alliance and the Freedom Front Plus have referred the Oilgate allegations to the National Prosecuting Authority, though the ruling African National Congress has accepted his findings, as did the Cabinet, which said it hoped that “other institutions” would “respect the authority and integrity of the constitutional bodies set up to protect our democracy”.
Lawyers Webber Wentzel Bowens are currently preparing the M&G’s review application in terms of the Promotion of Administrative Justice Act. Attorney Pamela Stein explained: “The Constitution entrenches the right to lawful, reasonable and procedurally fair administrative action.
“Where a state body or functionary fails to comply with any of these constitutional requirements … then it risks a challenge to its actions through the institution of judicial review proceedings by any persons affected by its actions.
“If successful, the court may order that the whole decision or the offending part of the decision is set aside and in most instances, the court would refer the matter back for reconsideration by the functionary, although in appropriate cases a court may substitute the decision of the functionary.”
M&G editor Ferial Haffajee said: “Vital institutions of democracy must earn respect for their authority and integrity. We will use the review because it is part of the democratic arsenal.”
M&G Media’s chief executive, Trevor Ncube, and Haffajee have also written to Mushwana requesting a public apology for having made “unjustified and unlawful” findings against the M&G without giving the paper an opportunity to respond.
Mushwana’s report said: “Much of what has been published by the Mail & Guardian was factually incorrect, based on incomplete information and documentation and comprised of unsubstantiated suggestions and unjustified speculation.”
In his report, Mushwana exonerated state-owned oil company PetroSA of any wrongdoing. In interpreting his powers, Mushwana curiously found he could not probe a private company like Imvume. Nor could he probe the flow of funds to the ANC, as it did not involve “public money”.
PetroSA this week refused to answer any questions arising from the protector’s report. And government communications head Joel Netshitenzhe maintained that the Oilgate scandal had been “laid to rest as it relates to the government”, though he acknowledged that a criminal probe may yet result.
The Oilgate report continues what critics have labelled a longstanding trend of political deference at the protector’s office.
In 1996, when he tabled his first report (on the Sarafina II debacle), former public protector Selby Baqwa stopped short of probing too deeply the role of then minister of health Nkosazana Dlamini- Zuma in promoting the flawed Aids-awareness play.
But he conducted a thorough investigation, questioning witnesses under oath and examining relevant source documents.
Fast forward to 2005 and the Public Protector’s Office was content to deal with the far more serious issues raised by the Oilgate allegations via mere correspondence with the parties and, as appears from the report, without accessing the many documents publicly available via the M&G website.
In between, the record of the office in probing the powerful has been mixed.
In the case of the Mpumalanga housing scandal, Baqwa found insufficient evidence to justify an investigation of then housing minister Sanki Mthembi-Mahanyele’s role. The auditor general had recommended her role be investigated after a friend of hers had landed a huge housing construction deal.
In spite of Baqwa’s finding, two appeal court judges later found that the same evidence justified a negative inference drawn against her in this newspaper.
Baqwa’s report on a tiara sold to Mlambo-Ngcuka at a large discount by a prominent player in the diamond industry made several logical and investigative leaps to avoid finding that then minerals minister has placed herself at risk of a conflict of interest.
One former and one present protector employee have raised concerns about the influence of its head of special operations, Stoffel Fourie, whom they accuse of facilitating a narrow legalistic interpretation of the protector’s mandate. Fourie is one of the protector’s longest serving employees, having worked for its pre-1994 predecessor.
Fourie, who presented the Oilgate report together with Mushwana, was a key role-player in the protector’s part of the investigation into the government’s controversial arms deal. In particular he was credited with having led an editing process of the final joint report that excised significant material and offered watered down findings that exonerated the government.
Fourie has previously vigorously defended the arms deal report, saying that the editing process merely removed “duplications and overlaps” in the draft reports. “The final report, in essence, contained the same findings and recommendation as the draft reports,” he told an anti-corruption conference in 2003.
Meanwhile, both the FF+ and the DA are pursuing legal steps to take the investigation further.
On Monday, the FF+ laid a charge against Imvume at the commercial branch of the police in Cape Town. The party said it appeared from the report of the public protector that Imvume had secured the R15-million advance under false pretences (by claiming cash flow problems and then donating the bulk of the money to ANC) to the detriment of PetroSA. The DA is seeking a meeting with the National Prosecuting Authority in a bid to have the Scorpions investigate the allegations.
In this Friday’s M&G, read more comment and news about Oilgate