In the court of public opinion, legal papers and affidavits with their Latin and their length are often, thankfully neglected. It's left to the advocates on their feet in front of a packed press gallery in a scruffy high court somewhere to make the argument hit home. But sometimes, legal papers can in themselves be astonishingly honest. Think Judge John Hlophe's comments about the Constitutional Court. President Jacob Zuma's claims of political conspiracy. However it's hard to think of any set of legal papers that reveal so much, and change a story so completely, as those lodged by the Public Protector in her battle with the Security Cluster over her provisional report on Nkandla. By STEPHEN GROOTES.
UPDATE: The Ministers of Police, State Security and Public Works today abandoned their attempt to prevent Public Protector Thuli Madonsela from releasing her draft report on Nkandla. The court hearing was due to be heard tomorrow. Government’s reasoning for the abandonment of the action is that the “extension” it sought and required had been achieved through the court process. Tomorrow the court will determine who is to bear the costs of the application. The score so far – Thuli Madonsela -1, Nathi Mthethwa, Siyabonga Cwele and Thulas Nxesi – 0.
Thuli Madonsela speaks softly. So softly, I’ve seen TV techies panic as her voice isn’t picked up by a live microphone attached to her lapel. But she carries a big legal stick. And she’s wielded it here. Some of the phrases used like “it’s not clear what prompted the anxiety” could almost have come from her own mouth, which suggests that in the biggest battle she’s faced in office, she’s played more than a hand in drafting them.
It’s important to get some of the really big stuff out of the way first. The big A-bomb in these documents is her claim that several cabinet ministers actually tried to stop her investigation.
She puts it thus:
“At a critical stage of the investigation into the Nkandla project, I regret to say that my office and its investigating team were frustrated, and in many instances obstructed in our efforts. Many of these frustrations are detailed in the executive summary to the provisional report. These include only being given sight of certain documents for short periods, and in the presence of government officials and key members of the investigating team being excluded from important meetings.”
She goes on to detail a meeting with several in the security cluster which was clearly very difficult:
“Resistance to the investigation was very strong at this stage, and there were separate attempts by the Minister of Police, and thereafter collectively by the ministers of Police, Public Works, and state security (with the assistance of the Acting State Attorney and the Chief Law Advisor) to stop the investigation.”
Now look at what she is actually doing here. This is a signed affidavit, each page carries her initials. She is saying, under oath, that ministers close to President Jacob Zuma tried to stop her investigation. Look at the ministers. Police, Nathi Mthethwa, very close to Zuma. State Security, every drug-pusher’s favourite husband, Siyabonga Cwele. And then there’s Public Works and Thulas Nxesi, from SADTU. One wonders what he and Zwelinzima Vavi say to each other when they bump into each other in the airport.
Then Madonsela moves on to what could be, in the context of this legal case, an even more important point. She says that she never intended to actually release this provisional report to the public. She says that access would be given to certain parties, those affected and those implicated, on a limited basis.
“Even those parties…would only be invited to view the report in the offices of the public protector in the presence of members of the investigating team.”
She goes on to hammer the point home:
“It is is inexplicable that the applicants could have predicated this application on a wider release, as they have done.”
In other words, Madonsela is suggesting that this entire court case is predicated on the wrong belief of the security cluster ministers.
If you didn’t think this entire episode was farcical already, that should make it pretty clear.
On the issue of the security of the President, Madonsela almost becomes scathing. First she points out, quite rightly that
“The president’s privately appointed architect, with absolutely no security expertise let alone clearance, was tasked with overseeing the entire Nkandla project.”
This seems to make two separate, and possibly important points. The first is that the person actually responsible for the entire project, the person who literally designed the dwelling in which our President is supposed to live, doesn’t know a thing about security. So how do we know then, that a secure dwelling has been built in the first place? Never mind what it says about the sudden security concerns of the ministers. Where was that concern at the start of the project?
But this may also raise another, massive question about Zuma’s personal involvement. We’ve been told he had nothing to do with it. That’s been contradicted by a letter which indicates he did at least know something about what was happening at his own residence. However, if this architect was responsible for what government has insisted was only “security upgrades” and he had no security experience, or clearance, and was personally appointed by Zuma, well it may be the smoking gun that Zuma was personally responsible for all of this after all.
(Of course, he’s not the only person appointed by Zuma not to have security clearance. There was that small matter of the new National Director of Public Prosecutions who was not vetted either.)
Madonsela is not quite done yet. She has a thing or two say about the conduct of the ministers and officials in their dealings with this report. She gave the ministers an electronic copy, with a password. This she says, was so that each minister could personally read the report. And she points out that as the person responsible for writing it, she did not give permission for it to be distributed to anyone else. However, in letters from these ministers, it’s clear they have distributed it to their officials. Which is against the protocols put in place by government to limit access to sensitive documents. In other words, they themselves, she says, have broken the law here.
As Madonsela points out rather dryly, this and the delays in these processes, “increase the chances the report may leak”.
The Public Protector is also more than clear that in these documents:
“No details are given of the exact location of the structures, nor any details regarding the nature, location and functioning of a single security measure.”
As the judge now has a copy of the report, they will be able to make up their own minds as to whether that is true. But as a bold statement of fact, it does pretty much put the ball back in the security cluster’s court.
Madonsela does have one last little present for government:
“The conflation in the founding affidavit of the personal safety of a serving president with the ‘security of the state’ has already been noted, and suggests that even after all this time, security agencies have not been able to itemise particular areas of well founded concern.”
In other words, it’s just wrong to say that entire Republic is at risk because of the safety of one person. The point about these legal papers, is that they do appear, at this point, to completely change the story.
Up until now, government was winning the spin war, to a limited extent. But that was in itself a victory, considering the uphill running the security cluster has to do with anything related to Zuma (think Waterkloof). This document probably changes all of that. In particular the claim that ministers tried to stop the investigation is in itself political dynamite. The suggestion they are actually going to court for the wrong reason seems to indicate a certain lack of maturity at the very least.
Either way, it’s going to be very tough for the security cluster to come back from this one. DM
Grootes is the Senior Political Reporter for Eyewitness News, and would be happy to welcome any member of the Security Cluster onto his programme, the Midday Report on Talk Radio 702 and 567 Cape Talk at any point. He’s also the author of SA Politics Unspun, which features Nkandla. And several other controversies.
City Press has uploaded the papers in full here.
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