The presidency and the Democratic Alliance (DA) are in the throes of a public tussle over the release of the presidential handbook – which ostensibly provides rules on spending of state resources for the president and his deputy – following news that Deputy President Kgalema Motlanthe took state-funded flights to the tune of R1-million for a holiday in the Seychelles late last year.
In February, Motlanthe's spokesperson Thabo Masebe defended the expenditure as in line with the "presidential handbook". It has since been reported that Motlanthe did not rely on the presidential handbook when undertaking the trip to Seychelles on an SA Air Force Falcon 900 last year.
Instead, he used a secret policy document, of about 10 pages long, which regulates travel and security for the president and his deputy, to justify the trip, according to the City Press.
Consequently, a row has erupted over the existence of the handbook, with the presidency's deputy information officer Batandwa Siswana claiming the handbook – which the public protector office said should be urgently compiled in 2007 – was in draft form as it was still being discussed by the relevant accounting officers and their political principals.
Siswana gave no indication when this draft handbook would be finalised or become official policy.
DA MP David Maynier contended that if the presidential handbook was still being compiled and still being discussed, it does not exist.
Legal experts have weighed in to say that if the handbook did exist, it would be unconstitutional to keep it away from public scrutiny.
"I have no doubt that it is unconstitutional," Professor Loot Pretorius of the University of the Free State's department of constitutional law told the Mail & Guardian.
"The basic principles of accountability and open governance are based upon expenditure and rules governing that expenditure being public knowledge."
The opposition party compiled a Promotion of Access to Information Act (Paia) request in February that asked for details of the handbook after Motlanthe's office claimed all expenditure by head of state and deputy is governed by the document.
But the existence of the document is possibly not the most critical point of contention.
Exempt from scrutiny
In the Paia reply, Siswana said the draft document is a record of Cabinet and would not be released for public or parliamentary scrutiny.
Cabinet records remain exempt from scrutiny as public documents and as such government is not compelled to make them public, even if urged to do so in a Paia request.
Pretorius said this was unconstitutional as any record detailing government expenditure that did not jeopardise the security of the state or its officials should be made public – even if they are labelled as a Cabinet record.
"Cabinet records can't include a document governing the expenditure of state. It is an official document that cannot be kept secret."
Section 41(c) of the South African Constitution states that all spheres of government must "provide effective, transparent, accountable and coherent government for the republic".
Moreover section 195(g) states that "transparency must be fostered by providing the public with timely, accessible and accurate information".
Pretorius's views were mirrored by Professor Shadrack Gutto, constitutional law expert at the University of South Africa.
"I would regard this as unconstitutional until proven otherwise. If this document leads to questions relating to public spending it should be made public," Gutto said.
Gutto said the presidency should make all documents governing its office and all government departments' expenditure public.
"Six years is a long time to have a policy document being deliberated on. It does not commensurate with the country's attempts to build an open and free constitutional democracy."
Officials in the presidency could not be reached telephonically or via email for comment.