Justice Ntsikelelo Poswa’s ruling setting aside the report of the public protector into the Oilgate scandal represents a victory for common sense and hard work — in the teeth of a more comfortable deference towards high office.
It’s a victory of media over politics, of accountability over power — and it’s a personal triumph with respect to probably the most forensically detailed investigation carried out by the Mail & Guardian.
It is all the more telling because Judge Poswa appears to have struggled with the implications of his task. In the judgement there is a palpable wariness towards the M&G and a distaste for the robust way in which the paper criticised Public Protector Lawrence Mushwana after his report.
Yet the facts we adduced were so overwhelming that the judge concluded decisively that we were correct in our argument: that here was a case packed with evidence of improper conduct crying out for serious investigation — whereas the protector had carried out the most cursory probe and had blandly accepted the assurances of a handful of officials and politicians that there was nothing untoward involved.
Poswa’s finding is revolutionary for the office of the public protector — and for the diffidence that has been the hallmark of his approach to state accountability.
The judge says it is not enough for the protector simply to weigh the evidence placed before him by others: if the suspicion of irregularity is serious, the protector must get off his perch and investigate — use his powers to subpoena documents and summon witnesses and get to the bottom of contradictions, rather than simply accept the official line.
No wonder Mushwana is considering his option to appeal.
To rewind: the M&G revealed in May 2005 how R11-million in taxpayers’ money had flowed from PetroSA, the state oil company, to the ANC through empowerment oil trader Imvume Management.
A later story revealed how smaller Imvume payments were also made to the brother of former minerals and energy minister Phumzile Mlambo-Ngcuka and for the benefit of then-social security minister Zola Skweyiya.
Related articles showed how Imvume, effectively a front for the ANC, promised South Africa’s support to Saddam Hussein’s Iraq in exchange for oil, which Imvume sold to the South African state after a highly suspect tender.
Following complaints from the Freedom Front and the Democratic Alliance, Mushwana declined to investigate the flow of money to the ANC on the grounds that this was private and outside the public protector’s mandate.
In respect of aspects he did investigate, such as the conduct of PetroSA, he found no impropriety whatsoever.
On the contrary his July 2005 report trashed the M&G, saying: ”Much of what has been published by the Mail & Guardian was factually incorrect, based on incomplete information and documentation and comprised unsubstantiated suggestions and unjustified speculation.”
The M&G went to court to review the report in the public interest and to protect its reputation. Poswa heard the matter in November 2007 and ordered the protector last week to investigate those aspects he had declined to do and properly reinvestigate those he had claimed to probe.
Poswa appeared at some pains not to find for the M&G — instead he found against the protector. For instance, for much of the judgement he relies not on the articles and supporting documentation published by the M&G but on the report produced by the Independent Inquiry Committee (IIC) into the United Nations Oil-for-Food programme in Iraq, which devoted a section to Imvume’s dealings with the Saddam Hussein regime.
Poswa notes: ”There is no doubt, however, that the Mail & Guardian had access to — similar sources of information to which the IIC had access. For purposes of — background — I prefer to rely more on the IIC report because it is, firstly, more objective than the Mail & Guardian may be perceived to be …”
Poswa also comments, in passing, about ”the manner in which the applicants criticised the report”, which he describes as ”abusive of and insulting to the Office of the Public Protector and the respondent [Mushwana], personally”.
Nonetheless, when he gets down to the evidence Poswa finds himself persuaded by two key arguments put up by the M&G. They are, first, that in deciding that on-payments by Imvume of money received from PetroSA were outside his jurisdiction, Mushwana misconstrued his powers; and, second, that in failing to question obvious witnesses and obtain other evidence, the protector failed to conduct a reasonable investigation.
Poswa disagrees with the contention that once state money passed to Imvume, what happened to it next was outside Mushwana’s remit. That, he points out, relied on an acceptance that the payment from PetroSA to Imvume was above board.
”In the current matter the very basis on which PetroSA made payment to Imvume was challenged by the [M&G], contending that it was an improper siphoning of state funds from PetroSA to the ANC, via Imvume. Seeing that these are state funds the respondent was obliged to investigate that complaint.”
The same argument applied to the payments to benefit Bonga Mlambo and Skweyiya.
More damaging to Mushwana is Poswa’s analysis of how the protector conducted the investigations that he was, in his own interpretation, empowered to investigate.
Poswa concurs with the M&G submission that the protector ”made no effort at all to investigate whether representatives of PetroSA were aware that the advance payment would in part be paid to the ANC or whether improper pressure was brought to bear on PetroSA to advance the payment for this reason”.
Mushwana had said that he had no reason to regard the explanations proffered by PetroSA’s chief executive, Sipho Mkhize, with suspicion. Poswa disagrees, pointing elsewhere in the judgement to a wealth of information provided by the M&G articles.
But beyond that, he notes: ”Unlike a judicial officer the public protector, as an investigator, is expected to do more than merely to weigh what is placed before him and make a decision in favour of the party that produces more evidence.
”By virtue of his powers he is, in my view, expected and is under a duty to actually look for evidence either way. Where, therefore, the party complaining does not have sufficient information, it is incumbent upon the public protector, in my view, to actually search for it if the circumstances warrant that. I am of the view that the circumstances warranted more investigation of the PetroSA payment to Imvume and the latter’s payment to [the] ANC than the respondent did.”
Poswa is especially scathing about the ”investigation” of the suspect state tender, noting that the protector had ”made no attempt to deal with the issues raised in that newspaper” [the M&G].
On the question of the protector’s omissions, Poswa quotes the list provided by the M&G‘s lawyer, including the fact that Mushwana ”did not direct any person to submit an affidavit — did not summon any person to produce documents; did not summon any person to give evidence; did not seize any documents —”
Poswa agrees that Mushwana was not justified in finding ”that much of what has been published by the Mail & Guardian was factually incorrect” given that he did ”not identify a single instance of a factual error in the articles”.
Despite this he was unable to make a finding that the inadequacy of the protector’s investigation was because he deliberately wanted to shield the ANC.
”In the absence of direct evidence to that effect, I am constrained to approach the [protector’s] conduct when dealing with the complaints on the basis of the integrity that he and his office possess …”
But Mushwana was saved from an inquiry into his perceived bias — one of the reasons put up by the M&G to set aside his report — by the fact that Poswa had already found other reasons to do so.
The judge does not find that the M&G articles were true — he is not required to. What he demands is a proper investigation of the allegations. How the protector deals with Poswa’s challenge will — whatever he decides — open a new chapter in the Oilgate saga.