Madonsela launches counter-attack against ministers

Thuli Madonsela has criticised claims her draft Nkandla report jeopardises Jacob Zuma's security, while revealing "resistance to the investigation".

Public protector Thuli Madonsela launched an outspoken counter-attack against ministers who claimed her provisional Nkandla report contained "a plethora of breaches of state security".

In an affidavit opposing security ministers' interdict attempt, she raises doubts whether their concerns over revealing security-sensitive information are genuine.

Thuli Madonsela's affidavit 

 Ministers' founding affidavit 

Madonsela's investigation report into security measures implemented by the department of public works at the Nkandla private residence of President Jacob Zuma was due to be released to affected parties for their comment.

But security cluster ministers, led by Minister of Police Nathi Mthethwa, went to court last Friday in a bid to obtain an effective security veto, citing unspecified security concerns over its contents.

Now Madonsela has called what she implies is their bluff by disclosing a copy of the draft to the court in order to "demonstrate the absence of any factual foundation for the applicants' alleged concerns".

The draft will not be made public, but will be available to the judge who will on Friday hear arguments about whether the ministers should be granted the right to block its disclosure if Madonsela does not satisfy their concerns over security.

The president's security

In her affidavit resisting the ministers' court application, Madonsela insists she was acutely aware of the need to bear the president's security in mind.

She notes: "The provisional report has been carefully compiled precisely with a view to ensuring that concerns of a legitimate kind regarding security do not arise … I have carefully scrutinised the report and I have satisfied myself that there are no 'security breaches.'"

She says although Mthethwa alleges a "plethora" of security infractions, he is "unable to mention one".

"This is unsurprising, because my team and I were from the outset alerted to the contended concern ... significantly the [ministers] are unable to advance a single fact … to illustrate the 'irreparable harm' and 'compromising' of … 'the safety of the president' which are suggested to arise if the provisional report is shown to the persons who made the complaints and the persons who are implicated."

The ministers stated they needed more time to identify aspects of the provisional report that might compromise Zuma's security.

But Madonsela says they failed to disclose a series of meetings she has held with them and senior officials since April to address security issues arising from the investigation.

Madonsela raises doubt

"In short, [the ministers] have had a considerable period to identify precisely what constitute security concerns."

She says the ministers and their senior officials could have identified areas of concern prior to her forwarding them the provisional report on November 1, and should have been able "very speedily to mark these up in a first reading of the provisional report".

Madonsela raises doubts as to whether security is a genuine factor. 

She notes: "It is, indeed, surprising that claims of possible security breaches were ever raised at all given that the president's privately appointed architect, with absolutely no security expertise, let alone clearance, was tasked with overseeing the entire Nkandla project on behalf of the department of public works."

Madonsela also refers to 12 000 pages of Nkandla documentation eventually disclosed by public works to amaBhungane in June this year following an access to information request.

She says the public disclosure of the self-same documentation provided to her – bar one or two minor redactions – shows that the information "in truth does not on any measure compromise state security".

"It is not apparent to me that this [disclosure to amaBhungane] would have happened had there been any concern regarding secrecy such as is now suggested as a reason for my provisional report not to be disclosed only to those whom it affects."

Pattern of obstruction 

She says her report details how purported security concerns were used to justify a pattern of obstruction and resistance. "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", she continues in the affidavit.

Problems included only being given sight of certain documents for short periods and key members of the investigation team being excluded from important meetings.

By April, Madonsela was still awaiting crucial documentation. 

She had yet to be given the report of the public works minister's internal task team – which probed tender processes followed in appointing contractors. Also outstanding were records of the decisions taken by the minister of police according to the National Key Points Act and Cabinet policy.

'Resistance to the investigation'

"I held an initial meeting with two members of the security cluster, the ministers of state security and police, as well as the minister of public works, on 22 April 2013. 

"I did this because it was already apparent that the resistance to the investigation into the Nkandla project was premised on suggested concerns regarding the impact which the release of the report might have on the president's security ...

"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 state law adviser) to stop the investigation.

"As regards the latter attempt, what was mooted was that my investigation should be suspended pending the outcome of investigations by the auditor general (who has no constitutional power to investigate) and Special Investigating Unit, which had not yet commenced."

Madonsela says it was a top official – former Surgeon General Vejay Ramlakan – who acted as government's co-ordinator for the investigation, who first suggested that the ministers' security concerns might be addressed by granting officials from the security cluster access to the provisional report.

'I specifically applied my mind'

She says: "I acceded to the request, as I was concerned about the way the investigation to date had been impeded by reliance on contended security issues … The security ministers thereafter agreed to co-operate with the investigation and agreed to provide the information requested."

This concession – to allow access to the provisional report purely to raise any security concerns – could have been implemented quickly and simply, Madonsela argues.

"When formulating the report, and with the assistance of my team, I specifically applied my mind to possible security concerns. 

"Information … which, in my view, could constitute a breach of security, [was] specifically excluded. I submit that this would be evident to the court itself on reading the provisional report."

She says the assessment with regard to possible security risks required no more than a reading of the provisional report, which might lead to one or two suggested redactions.

Madonsela says she was always prepared to exercise her discretion to have regard to bona fide security concerns, but that the decisions on disclosure remained hers to make.

She argues the ministers have had every opportunity to specify, and justify, focused security concerns – but that the report itself and the disclosures to amaBhungane suggest that no proper basis exists for these concerns.

Instead, she says, the ministers imply that disclosure is a matter subject to their veto.

Request to dismiss application

Madonsela says the delays caused by the ministers causes prejudice to the complainants and implicated persons: "It is clearly not in the public interest for either those who have made a complaint of this nature or those who stand accused of misdoings to be left in uncertainty and deprived of what fairness on first principle requires."

She has asked the court to dismiss the ministers application with a punitive costs order.

*Disclosure: The authors are members of amaBhungane and involved in litigation with the public works department for the disclosure of Nkandla records.

- M&G