M&G heads to court over Nkandla

The Mail&Guardian centre for investigative journalism has taken Public Works Minister Thulas Nxesi to court over Nkandla-related documents.

It claims not all the documents pertaining to the R210 million upgrade of President Jacob Zuma's Nkandla homestead have been revealed.

The centre is seeking an order to force Nxesi and the public works director general to give it access to all records in the department's possession relating to the work done at Nkandla and its financial implications.

It also wants a court order forcing the department to account for the records it claims could not be located or did not exist, and to file a list of all the documents it alleged could not be disclosed for security reasons.

Alternatively, the centre asked the court to refer the matter for oral evidence on the question of the existence of the missing documents and steps taken by the department to locate them.

This means the department's top officials, including Nxesi, could be subjected to cross-examination.

In 2012, the department refused any access to the information the centre requested under the Promotion of Access to Information Act, on the grounds of security concerns.

Earlier this year, after the centre launched a court application and documents had been exchanged, the department sent the centre more than 12 000 pages of information.

When more documents were requested, some were supplied, but the department insisted that every single relevant document, apart from five which were security-sensitive, had been handed over and that no further documentation existed.

Wim Trengove SC, for the centre, argued on Tuesday that Nxesi and the director general had either deliberately sought to initially mislead the applicant, or did not engage with its request at all, showing they were derelict in their duties.

The acting director general had at first issued a blanket refusal, and the minister thereafter had failed to deal with an appeal against the refusal, he submitted.

He said the subsequent decision to disclose the bulk of the documents only underlined the extent to which they had paid no regard to their constitutional obligations.

The minister's original answering affidavit in the application attempted to justify a blanket refusal, which turned out to be false, and did not give an explanation for this conduct, he said.

Trengove argued that Nxesi and the director general had acted with disdain for the Constitution, the law and the court, and that “the inference of dishonesty was irresistible”.

He said there was ample reason to doubt the truth of their recent allegations that no further Nkandla documents existed.

He argued that the disclosed documents referred to top-level deliberations and decisions at the department, but that these documents were missing.

“... The overwhelming likelihood is that there are a great deal of top-level documents concerning the participation of top-level officials.”

He contended that neither Nxesi nor the director general made any effort to find out if there were any other documents, and said it was clear no proper search was done at head office.

He described as “very odd” the department's contention that there was no specific budget for the project, and that funds were sourced from “other prestige projects” that were under-utilised.

He described as “ludicrous” the suggestion that the project manager Jean Rindel “went to the president and negotiated a R200

million contract with him”, but that there were no records of any reports by the project team to top management or reports to the president about the progress of the project.

“... There is ample evidence that all these meetings and decision-making took place, but the department says it has no such records,” said Trengove.

“... The court will have to decide whether or not the denials of the respondents are honest or not,” he said.

Danny Berger SC, for the respondents, argued that the centre's request was “open-ended”, because it now sought access to “any document held anywhere” which held a connection to Nkandla.

He said this was certainly not how the application had started out, when the applicant had sought only access to documents held by the state pertaining to goods or services in relation to the upgrade of Nkandla and which related to the financial implications of the project.

He said that as a result of the disclosure of 12 253 pages, it now knew precisely how much money had been spent on Nkandla and how it had been spent.

“We make no excuses in respect of the failure of the respondents to comply with the act in respect of their obligations.

“The court can say whatever needs to be said about that, but there came a time when there was a change of course and the respondents realised they needed to disclose whatever documents they could disclose,” he said.

Berger argued that it was “unreasonable” to expect of the respondents to go through more than 12,000 pages and explain the reasons for each and every document that was incomplete.

He said it was not even clear that there were documents missing.

Judge Vuyelwa Tlhapi remarked that there was only one huge project involved and merely different aspects of the same project.

The application continues.

- Sapa