/ 14 November 2013

Ministers abandon Nkandla report interdict application

President Jacob Zuma's Nkandla homestead.
President Jacob Zuma's Nkandla homestead. (Madelene Cronje, M&G)

The security cluster ministers have abandoned their court bid to interdict public protector Thuli Madonsela from releasing her provisional Nkandla report. In responding papers filed at the high court in Pretoria on Thursday, the ministers said since the relief they initially sought – an extension of time to review the report – had been granted, the interdict application would be "academic".

However, the ministers will seek a costs order from the court on Friday.

But the minister have hit back at Madonsela, accusing her of "misleading" the court in her affidavit and at times being "vexatious" in her affidavit.

Last Friday, the ministers sought to interdict Madonsela from releasing her report to interested and affected parties and asked the court to grant them until Friday November 15 to review and comment on the report.

Madonsela asked for a postponement and the case was adjourned until November 15, granting the ministers a de facto victory. Madonsela admitted as much in her papers, filed on Wednesday.

But Madonsela, in her affidavit, wanted to respond to the ministers' claims, that her report was so replete with security sensitive information that it would compromise the security of the president and the state, if it was released.

Madonsela said there was nothing in her report that would compromise state security and said the ministers had actively tried to stop her from investigating the spending at Nkandla.

On Thursday, the ministers of defence, police, public works and state security, responded by accusing Madonsela of lying in her affidavit.

Madonsela said the minister were given ample time to identify legitimate security concerns in her report prior to its release. She also said the ministers and her office had made an arrangement over three months ago in which the security cluster was placed on notice to expect the provisional report and for the ministers to respond with their concerns.

"The respondent is incorrect on each of these contentions," the ministers said on Thursday, in Police Minister Nathi Mthethwa's affidavit. 

"I am aware that the respondent has been at pains to give a different interpretation to this letter in the media after the urgent application was filed and she seeks to do so again in her answering affidavit.

"Unfortunately the contents of this letter are unambiguous to the extent that any interpretation the respondent seeks to import to it leads to absurdity," said Mthethwa.

The ministers denied all Madonsela's allegations, including that they tried to stop her investigation.

'Ensure protection from disclosure'
They argue that the provisional report cannot be released without the state security minister's vetting, as it his duty to "ensure the protection from disclosure of [classified or confidential information] in terms of the Protection of Information Act".

They also said the documents given to Madonsela were not redacted and were different to those given to the Mail & Guardian in terms of its Promotion of Access to Information Act (Paia) application.

Mthethwa also disputed Madonsela's timeline of the events, which led to the application. He said the application was not about whether or not there was any basis for legitimate security matters in the provisional report – it was merely about a request for extra time to view the report.

The ministers therefore asked the court not to address the issue of whether the report contains security breaches and objected to Madonsela giving the court a copy of the report.

They said the court " … certainly does not require a perusal of the contents of the provisional report, which the respondent has already determined is confidential".

"It will be argued, when the need arises, that the respondent [Madonsela], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report."

Acting outside her powers
Mthethwa said Madonsela would be acting outside of her powers, and the law, should she "arrogate herself that power to determine whether there is a breach of security arising from the contents of the provisional report".

Mthethwa said Madonsela should have told the court that the minister of public works established a task team to investigate the spending at Nkandla, of which the findings were released in January 2013.

He also said the ministers were not put on notice about the release of the provisional report.

"The first time I became aware that the provisional report was ready was in the public domain where the respondent was quoted to have allegedly said that 'she did not know who to submit the report to'."

According to Mthethwa, Madonsela said this despite an August 8 meeting where she assured the cluster that they would be able to view the report before it was released to interested and affected parties.

He said on November 1, Madonsela personally telephoned him to give him and the other three ministers copies of the report.

Cluster needed a few hours
In a letter delivered on the same day, Madonsela "contradicts this averment that her report does not raise concerns of a legitimate kind regarding security".

"In the letter, [Madonsela] specifically invites us to identify any matter in the report which in our view could have an impact on or could compromise the security of the president which require omission from the report.

"If this was the view that was held by the respondent, that her report does not raise legitimate security concerns, there would have been no reason for her to have invited us to make comments in the manner she proposed in the letter," said Mthethwa.

Mthethwa also said he "take[s] issue" with Madonsela's view, that the cluster needed a few hours or two days "at most" to provide written comments on her report.