Nkandla legal opinion writer did not see report

THE author of the legal opinion which saw the report into spending at President Jacob Zuma’s Nkandla homestead being kept from the public never saw the report

National Assembly Speaker Max Sisulu based his decision to refer the report to the joint standing committee on intelligence on this opinion, of which Super Saturday Citizen has a copy.  

In it, Parliament’s senior legal adviser, Ntuthuzelo Vanara, wrote that he had to rely on “a brief background coupled with my security knowledge” to enable him to formulate a view on the legality of a possible referral of the report.     

“I am in an unenviable position, in that I am required to advise on a report that I have not had sight of,” wrote Vanara. 

Vanara proceeded to argue that because Zuma was the commander-in-chief of the defence force and the architectural plan of his private residence was a matter of national security, the report should not be made public. 

Vanara wrote that although the Constitution envisaged Parliament’s default position to be that of transparent governance, that because it was “safe to assume that parts of the report might contain intelligence information” it was reasonable and justifiable to refer the report to the closed committee. 

Addressing the classification of the report, Vanara cited a  Constitutional Court case.

In this case Deputy Chief Justice Dikgang Moseneke stated that a mere classification of a report as confidential, secret or even top secret would not place the documents beyond the reach of the courts, because once documents were placed before a court they would be susceptible to its scrutiny and direction as to whether the public should be granted access or not.

Vanara argued the same should apply to the joint standing committee on intelligence with regards to the Nkandla report. 

As with the courts, the committee would have to weigh up the competing rights or interests carefully with a view to ensuring that the limitations it places on open justice is properly tailored and appropriate to the end it seeks to attain, wrote Vanara. 

This means that the committee will act as a quasi-court in that it will, at its discretion, decide which parts of the report will be made public, if any. 

Advocate Paul Hoffman of the Institute for Security Studies said that Vanara’s admission that he had not seen the report placed him in no position to “reasonably justify it being kept secret”. 

“The report’s subject matter covers a lot of material that has already been thoroughly ventilated.

“What possible point is there in now seeking to keep the matter a secret?” asked Hoffman. 

Hoffman stated that it was “far-fetched to suggest that any of the values (enshrined in the Constitution) were served” given the amount of publicity the upgrade has already enjoyed, nor does national security dictate that a report that presumably covered and attempted to explain the expenditure on the upgrades should be regarded as secret. 

“Whether any (aspects to national security) exist is impossible to say from where I sit and it is also impossible for Mr Vanara to say from his position, as expressed in his legal opinion,” said Hoffman.

- The Citizen