Long battle to get hold of redacted Nkandla documents

The release of over 12 000 pages of documents marks a victory in the long battle between amaBhungane and the department of public works.

This has been a battle for access to information on its Nkandla-related expenditure.

In July 2012, amaBhungane requested information under the Promotion of Access to Information Act regarding public expenditure on upgrades to President Jacob Zuma’s private residence in Nkandla, KwaZulu-Natal.

The request highlighted ­amaBhungane’s interest exclusively in information that was not ­security sensitive. The request pointed out that the Act obliged the department to redact parts of the requested information that was related to security, while ­making the rest available.

In its initial response, the department rejected the request on the basis of apartheid-era legislation, including the National Key Points Act, the Protection of Information Act and a Cabinet policy called Minimum Information Security Standards.

No mention was made of any grounds for refusal under the Promotion of Access to Information Act itself.

An internal appeal against this decision was ignored by the department, forcing amaBhungane to launch a legal application to compel the department to release the information.

Irregularities in expenditure

In its replying affidavit, the department claimed that all documents requested were so replete with security-sensitive information that it would be impossible to comply with the request without revealing any of it. AmaBhungane rejected this claim.

Together with expert testimony, amaBhungane submitted various documents marked “top secret” that had been leaked to the press revealing irregularities in expenditure, with no reference at all to security-sensitive details. On this basis, amaBhungane argued that it was simply impossible that all of the documents sought could not be released, at least in redacted form, without endangering the security of the president.

The department subsequently capitulated. In a supplementary affidavit received on June 13, it acknowledged that it was possible to sever security-sensitive information from requested documents.

The department released 42 files – over 12 000 pages – relating to bid evaluations, needs assessments, contracts awarded and their values, as well as documents indicating whether costs were allocated for public or private accounts.

The documents released to amaBhungane can be assumed to form the basis of the task team report commissioned by Public Works Minister Thulas Nxesi.

This report has subsequently been declared top secret and thus closed to public scrutiny.

The files also make numerous references to documents, pages or annexures that have not been disclosed. For many of these, there appears to be no security-related basis for their redaction.

AmaBhungane has until the end of July to decide whether to continue with its court challenge to secure the outstanding material. AmaBhungane has been represented by Webber Wentzel’s media law team and advocates Nasreen Rajab-Budlender and Wim Trengove SC. – Vinayak Bhardwaj is the advocacy co-ordinator for amaBhungane - M&G