The public protector’s report on Oilgate is a dismal, depressing, disingenuous display of intellectual dishonesty. First and foremost, the public protector has taken an absurdly literal and narrow view of the distinction between public and private.
As the report is at pains to point out, the public protector’s statutory duty is to investigate maladministration in public office. Misdemeanors in the private sector are beyond his authority, unless the conduct complained of contains allegations of dishonesty or unlawful enrichment on the part of the private entity relating to public money or arising from public maladministration.
This, of course, was the essence of the revelations made by the Mail & Guardian: that PetroSA made the advance payment to Imvume knowing that some or all of it was going to be siphoned off to the African National Congress. But, in a staggering feat of mental gymnastics, the public protector avoids dealing with this core issue by a neat yet outrageous sleight of legal hand. Having confirmed that R15-million went from PetroSA to Imvume the report asks rhetorically: “When does public money lose its character and become private money?”
In his report, the public protector comes to the conclusion that at the point at which the money passed to Imvume it lost its “public character” and became private money — end of investigation, end of story.
To reach this conclusion, the report relies on a judgement of the Constitutional Court concerning the theft of public money by dishonest attorneys in relation to compensation paid to them on behalf of their injured clients by the Road Accident Fund (RAF). The Constitutional Court held that because the RAF was legally obliged to pay the money to the claimants, and had no prior knowledge that their attorneys were going to steal the money, at the point at which it was paid to the attorneys it became legally owned by the claimants (the attorneys’ clients), giving rise to a private, contractual law entitlement.
The report, applying legal logic that would embarrass a first-year law student, asserts that the situation with PetroSA and Imvume is precisely the same: because PetroSA had a contractual obligation to pay the amount of money to Imvume — a fact that is not in dispute — once it did so, the money ceased to be “public money”.
But for this logic to have any integrity whatsoever would be to wish away the very core of the complaint: that PetroSA and Imvume were in collusion in knowing that (a) the money was going to be passed on to the ANC; and (b) that subsequently, as a direct consequence, PetroSA was going to be required to pay the money again in order to protect the state’s interest.
In the RAF case there was absolutely no suggestion that the RAF paid the money knowing that it was going to be stolen or misused by the attorneys, or that they were part of some sort of conspiracy to misuse public monies. The RAF case is clearly distinguishable from the Oilgate case.
But, having bent the Constitutional Court’s jurisprudence to justify evading his responsibility to “follow the money”, the public protector evades conducting the real inquiry that was urgently required in this case and to ask the set of questions that are so resoundingly absent from his 70-page report: Is there evidence that people at PetroSA knew that Imvume was going to make a donation to the ANC? Is it at all plausible that Imvume could have made the donation but for the advance payment from PetroSA? What evidence is there of collusion between the two entities?
And, from such questions flow the forensic inquiry that should have followed, rotating around the level, nature and detail of the communications between PetroSA, Imvume and the ANC.
Because the public protector was so determined to avoid dealing with these sensitive lines of inquiry, he failed to interview any of the people who could shed light. The “investigation” ended before it had even started.
The result is that this report has no credibility whatsoever.
For all I know, the M&G’s conclusion — that the payment was a collusion and, therefore, an abuse of state resources — may be mistaken, though understandable. But in the absence of a credible report by the public protector I am none the wiser.
If anything, I am more inclined to believe two things now. One, that because I cannot believe that the public protector and his staff are as inept as their report suggests, they have wilfully chosen to evade their responsibilities. The only plausible reason for doing so is that they have bent to political pressure. Hence, I am more inclined to believe that the ANC has something to hide.
Second, the report undermines the confidence that I for one had hitherto had in the institutions created to protect the integrity of public life. Now I can see that slowly, almost imperceptibly, the Office of the Public Protector is on the slide. Under Selby Baqwa it had a slight tendency to fudge issues — for example the Penuell Maduna case (after Maduna had criticised the auditor general wrongfully for allegedly covering up the disappearance of state oil money) — but it never evaded them. Usually, a way was found to make the point — carefully, prudently, without causing too much political collateral damage, yes, but dealing with it in way that ensured that lessons were heeded for the future. The arms deal inquiry report is an example of this.
Given the importance of the public protector to the overall fight against corruption, this is a bleak trend indeed. The way in which the Oilgate report deals with the M&G is revealing. Having stated that he has no jurisdiction to inquire into Imvume or the ANC, he then dismisses what it calls the “allegations, suggestions and speculation” of the M&G as largely “factually incorrect”.
Again, this represents a feat of intellectual dishonesty: having stated that it has no jurisdiction to investigate and having therefore not done so, it offers an apparently definitive view of the newspaper’s own investigations and conclusions. There is something entirely rotten in this. Clearly, the public protector was out to knife the M&G. He has no business doing so. If anything, he should be encouraging investigative journalism — a necessary ingredient in the overall fight against corruption.
Now the ball is in Parliament’s court; it has to receive the report formally.
What it should do is spit it out and reject it for the shoddy, feeble, harmful thing that it is.