The Supreme Court of Appeals (SCA) on Wednesday dismissed an appeal by the Public Protector against an order of the North Gauteng High Court setting aside its report into the so-called Oilgate matter.
The report followed an investigation conducted by the protector at the request of two members of the National Assembly. It concerned allegations made in a series of articles published by the Mail & Guardian.
The newspaper went to the high court asking that the Oilgate matter be reinvestigated, after the protector’s report found no impropriety on the part of various parties implicated in the scandal. The high court set aside the report.
The SCA held that matters referred to the protector were not probed at all, and found the investigation was so scant it amounted to no investigation at all.
The SCA said the minimum requirement for an investigation of any kind was approaching the matter with an open and enquiring mind.
According to Democratic Alliance MP Hendrik Schmidt the “undisputed facts” of the Oilgate matter are that in December 2003 state-owned enterprise PetroSA agreed to make an irregular advance payment of R15-million to empowerment company Imvume Management for a shipment of oil condensate.
Imvume however used most of the money to make an R11-million donation to the ANC’s 2004 election campaign. As a result Imvume was declared insolvent and PetroSA had to pay twice for the condensate.
The M&G broke the scandal, the high point of which was the 2005 revelation that connected businessman Sandi Majali had diverted R11-million belonging to PetroSA to the ANC.
Then-Public Protector Lawrence Mushwana rubbished the M&G‘s stories in a report, 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 took it on review under the Promotion of Administrative Justice Act, both to seek vindication of its investigative work and to hold the protector accountable to the public.
Judge Ntsikelelo Poswa of the North Gauteng High Court found in the M&G’s favour two years ago, setting the report aside and ordering that the Public Protector reinvestigate the scandal. Mushwana filed leave to appeal before his term of office expired in October 2009. He was succeeded by Advocate Thuli Madonsela.
The appeal case was heard on May 12 and judgment was reserved. — Sapa & M&G reporter