/ 30 September 2013

DA goes to court to access Nkandla report

Democratic Alliance parliamentary leader Lindiwe Mazibuko.
Democratic Alliance parliamentary leader Lindiwe Mazibuko. (Gallo)

The Democratic Alliance (DA) parliamentary leader Lindiwe Mazibuko filed court papers on Monday morning at the high court in Cape Town, asking the court to compel the department of public works to provide her with a copy of the department's task team report into the upgrade of President Jacob Zuma's private residence in Nkandla.

Mazibuko is suing Public Works Minister Thulas Nxesi, the director general of the department and Zuma.

She wants the court to declare unlawful and invalid the rejection of the DA's original Promotion of Access to Information Act (PAIA) application.

Mazibuko also wants the court to declare unlawful and invalid the rejection of the DA's PAIA internal appeal and to order the department of public works to hand over the report to the DA within five days of an order of invalidity.  

Alternatively, that the court orders that the parts of the report pertaining to state security be severed and the report then be made public. 

A task team assembled by Nxesi earlier this year authored a report that was intended to shed light on the spending of over R200-million of public money on Zuma's private residence in Nkandla. But Nxesi classified the report "top secret" in terms of the Minimum Information and Security Standards, a Cabinet policy which has no basis in law.

'Shield President Zuma'
The DA submitted a PAIA application to obtain the report, but Nxesi didn't respond to the application. In terms of PAIA, if there is no reply to an application it is thought of as a rejection.

Since the application was "rejected" (by Nxesi not responding to it), the DA filed a notice to appeal the rejection. Nxesi responded to the notice by saying that the appeal was premature as the report was with the parliamentary Joint Standing Committee of Intelligence (JSCI).

"The reasoning that minister Nxesi gave for his referral of the report to the JSCI – which meets behind closed doors and whose members are sworn to secrecy – was that the report had been classified 'top secret' in terms of Minimum Information Security Standards.

"This means that the task team report has not been classified in terms of law. We have long held that the classification of the report is invalid, and constitutes yet another attempt to shield President Zuma from public accountability," said Mazibuko.

She said it was not the mandate of the JSCI to take "tender irregularity reports, sever them to shreds and then give them back to Parliament at their leisure", and determine what Parliament can and cannot be overseeing in terms of accountability. 

"That is a political move," said Mazibuko. 

She said the ANC in the committee could easily vote to sever parts that have got nothing to do with state security and use the fig leaf of state security to prevent the public from reading legitimately important aspects of the report, which are in the public interest.

'We don't run to court'
Mazibuko defended the DA's decision to go to court, saying "we don't run to court on a whim. We never do it without due consideration for the fact that the judiciary itself is a separate branch of the state, which should only have to govern the work of Parliament and the government under the most exceptional circumstances".

Mazibuko said she had written 27 letters over the past nine months requesting access to information and investigations but got no response. She added that the court was the last resort.

"We want to know who gave the authorisation, did they know how much it would cost? Did they inflate the costs over time? And was there an instruction from the top to say 'continue with this upgrade, we know how much it cost, it doesn't matter, this is what the president is entitle to'," she asked.

Public protector Thuli Madonsela is also investigating the upgrade into Nkandla and Mazibuko said she was wary this report might also be classified or censured.

"The problem is that the department of public works has shared this 'classified' report with her, which has a potential to poison the well and compel the public protector to sever parts of her own report and not make them public because they contain reference to a so-called classified report.

"I'm not saying it will or won't happen, but the possibility exists. And it is a very real risk."