More than two years after Public Protector Lawrence Mushwana produced his controversial report on the Oilgate saga, the Mail & Guardian has had its day in court in a bid to have it overturned and rewritten.
The M&G last year launched an application under the Promotion of Administrative Justice Act, which allows official actions to be reviewed. It was served before Judge Ntsikelelo Poswa of the Pretoria High Court this week. Poswa said it was a matter of great public interest.
Mushwana, who is opposing, attended the start of the hearing on Wednesday with his deputy, Mamiki Shai, and Stoffel Fourie, his special investigations head and author of the Oilgate report.
Mushwana and his office have been accused of being ”soft” on ministers and the African National Congress (ANC). The M&G‘s application is the first court challenge to him.
The M&G‘s Oilgate articles exposed how oil trader Imvume Management paid R11-million to the ANC after obtaining an advance from PetroSA. When Imvume was unable to pay its own suppliers, PetroSA doubled the payment. Public money, the M&G said, found its way into ANC coffers.
Condemned report
Mushwana was asked by the Democratic Alliance and Freedom Front Plus to investigate these and related M&G allegations.
His report, widely condemned as a whitewash when released in July 2005, found no wrongdoing by PetroSA.
Mushwana did not investigate Imvume’s ”donation” to the ANC, claiming this fell outside his jurisdiction because the company and the party were private entities and the money, once in Imvume’s hands, could not be described as belonging to the public.
Mushwana’s report said ”much of what has been published by the M&G was factually incorrect, based on incomplete information and documentation and comprised unsubstantiated suggestions and unjustified speculation”.
The M&G argues Mushwana wrongly excluded key allegations from his jurisdiction, failed to fully investigate allegations he concluded were within his jurisdiction, and showed bias.
Mushwana denies this and disputes the M&G‘s right to bring the challenge. Advocate Vincent Maleka, for Mushwana, told the court: ”We will … deal with the applicants’ allegations relating to their locus standi. We will show that none exists, and none was proved.”
Accountability
Advocate Geoff Budlender, for the M&G, said in his opening remarks that the Public Protector was created under the Constitution to hold state power accountable.
”The Public Protector’s job is accountability,” he said. ”The core question is whether and to what extent the Public Protector is accountable for how he exercises his power.”
Budlender argued that while Mushwana had described the report as one of his most important, his investigation was cursory. ”The list of what he didn’t do is rather longer than what he did do.”
Budlender said that during Mushwana’s investigation his office had made one telephone call to the Central Energy Fund, the holding company of state oil interests; and sent one letter to the director general of minerals and energy, two letters to the former minister of minerals and energy and three letters and two emails to PetroSA.
Limited documents were obtained and perused, while Mushwana’s office failed to contact obvious witnesses including PetroSA staff, Imvume boss Sandi Majali and ANC representatives. The M&G was also not contacted.
Budlender said Mushwana had erred by deeming the onward payment to the ANC, and the relationship between Imvume and the ANC, outside his jurisdiction. These were important allegations in themselves; and Mushwana could not properly investigate the remaining allegations because of their ”connectedness”.
If Imvume was a ”conduit” for the movement of funds from PetroSA to the ANC, as alleged, Mushwana had jurisdiction to investigate the onward flow of money from Imvume to the ANC, Budlender said. ”The question is: Are these facts true? Only if you investigate will you know,” he said.
Mushwana prejudged their untruth by excluding them from the investigation. ”His starting point was the conclusion, and that’s where he went wrong.”
Legal standing
In his prepared argument, Maleka said the M&G did not have the legal standing to bring the application either in its own or the public’s interest. The report’s criticism of the M&G had not affected the paper’s rights and interests.
”The applicants have been able to exercise their freedom of expression, and have been able to do so vigorously. For instance, the applicants have published articles, subsequent to the report, in which they expressed critical views of the respondent …”
Maleka denied any connection between the allegations Mushwana investigated and those he did not, referring to the M&G‘s ”hyperbolic claim that Imvume was ‘a conduit’ through whom public funds were siphoned to the ANC”. There was no evidence to support this.
He also said it was not necessary for Mushwana to obtain evidence from potential witnesses suggested by the M&G. ”He … gathered information from persons whom he regarded as relevant … When the explanation furnished in response to the allegations is reasonable, the respondent was entitled to evaluate that explanation and accept it. We submit that it would be a futile exercise to pursue further investigation.”
M&G Media, publisher of the M&G; M&G editor Ferial Haffajee; and M&G journalists Stefaans Brümmer and Sam Sole are applicants in the matter.
The hearing continues.