Protector mulls challenge to Oilgate ruling

Public Protector Lawrence Mushwana is considering appealing against a high court judgement setting aside his 2005 report on the so-called “Oilgate” scandal, his office said on Monday.

“The Public Protector is currently considering legal advice regarding a possible appeal against the setting aside of the report by the high court and will take a decision in this regard in due course,” a spokesperson for his office said in a statement.

The report on the scandal, involving a payment by black empowerment company Imvume to the African National Congress (ANC), was set aside on Thursday by the North Gauteng High Court in Pretoria, which ordered that it be reinvestigated.

In the judgment, Judge Ntsikelelo Poswa criticised Mushwana for refusing to investigate certain allegations and drawing conclusions without launching a proper probe.

Although Poswa could not conclude the investigation was inadequate because Mushwana wanted to shield the ANC, he found that the protector had misconstrued his obligations.

He had contended that he was not entitled to investigate many of the transactions at the foundation of the scandal as these were not out of “public funds” and were made between “private entities”.

It was the finding on the shielding of the ANC that Mushwana found “significant”, said his spokesperson, Kgalalelo Masibi.

This, especially in light of the many media reports criticising him and his report, including Mail & Guardian editor-in-chief Nic Dawes’s statement that “the ruling puts the Public Protector on notice that his duty is to the Constitution and people of South Africa, not to powerful political and financial interests”.

The M&G took Mushwana’s report on review under the Promotion of Administrative Justice Act following its release in July 2005.

“The court accepted that the Public Protector acted with integrity when he investigated and reported on the matter concerned,” said Masibi.

The court had noted that it found the manner in which the M&G had criticised the report as a “whitewash” was abusive and insulting of the Office of the Public Protector and Mushwana personally.

“Judge Poswa expressed the view that the [Office of the Public Protector], being the protector of the Constitution, is entitled to more respect than was shown by the Mail & Guardian,” said Masibi.

The scandal involved the alleged irregular payment of R15-million by PetroSA to Imvume Management, which had claimed it needed bridging finance to pay oil-supply company Glencore for a shipment of oil four days from harbour.

However, Imvume failed to pay Glencore, and PetroSA had to pay another R15-million directly to Glencore.

Part of the first payment—R11-million—was allegedly used for the ANC’s 2004 election campaign.

In his report, Mushwana found no evidence of wrongdoing in the scandal.

He determined that the ANC and Imvume were not public entities and therefore did not perform public functions and as such were not part of government.

He said the state had no shareholding in Imvume and so the “alleged payment was clearly made by one private entity to another and could therefore not have had any bearing on state affairs”.

Following the judgement, the M&G said that it was vindicated by the , In a statement following the

The high court ruling vindicated the M&G, it said after the judgement.

“We look forward to a more thorough investigation of the Oilgate saga by the Public Protector, and to the prospect of genuine accountability for the abuse of public money for party political purposes uncovered by our reporting,” it said.—Sapa


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