Public Protector Thuli Madonsela is facing multiple legal and political battles. While cabinet ministers are battling it out with her in court to stop her from releasing her report on the security upgrades at President Jacob Zuma’s Nkandla home, Independent Electoral Commission (IEC) chairwoman Pansy Tlakula also wants the court to set aside her report against her.
On Saturday Tlakula told The Sunday Independent that she had lodged papers at the Pretoria High Court to review and set aside Madonsela’s findings and recommendations against her.
In August, Madonsela found Tlakula liable for misconduct and maladministration in relation to her role in the procurement of Riverside Office Park in Centurion, the IEC’s head office.
Tlakula’s announcement of her legal action comes after Parliament decided that it could not take action against the IEC chairwoman based on Madonsela’s recommendations.
Madonsela had hoped Parliament would deal with Tlakula.
But according to a confidential legal opinion, Parliament was told that its hands were tied and there was no law authorising it to act against Tlakula.
Senior legal advisor Ntuthuzelo Vanara also recommended that the National Assembly should consider “legislative intervention” to assist Madonsela with similar incidents in future.
At the same time ANC chief whip Stone Sizani has demanded that Madonsela submit her provisional report on Nkandla to Parliament. This came after Madonsela said she did not know who to send the report to.
Earlier this week ANC secretary-general Gwede Mantashe slammed the manner in which Madonsela handled the Nkandla report.
“The confusion she displayed when she said she did not know where to take the interim report worked on the psyche of the public in a way that reflected negatively on the president.”
Commenting on an interview with The Sunday Independent last week in which Madonsela said that South Africans would be disappointed with the findings of the report, Mantashe said: “This begs the question who will be disappointed with outcome of the interim report.”
On Saturday ANC deputy secretary-general Jessie Duarte said Madonsela had created an emotional atmosphere around the report. “We respect her. Our concern is for the report to be finalised as a matter of urgency.”
She added that the president, who was cited in his personal capacity, should have been afforded the opportunity to see the report.
“The ministerial security cluster has the right to study the report and they must be given a reasonable time (to do so),” she added.
The ministers had been given five days to study the report and raise any matter which would compromise the security of the president.
Madonsela was due to release the report to interested and affected parties on Saturday.
But the ministers argued that they needed more time to read the 357-page document and asked for an extension until November 15.
Madonsela, however, declined the request, saying she was anxious to release the report to the president and interested parties to avoid further prejudice to Zuma.
She said that media reports indicated that the ruling party was unhappy and concerned about the special arrangement with the cluster ministers.
It has however emerged in the court papers that the Nkandla report could become a “top secret” document – accessible only to those who have been vetted and received security clearance.
In one of the letters from Public Works Minister Thulas Nxesi to Madonsela, where he pleads for an extension to the deadline, Nxesi warns: “we note with concern that your provisional report is not classified as “top secret” and merely classified confidential.
“It is our request that your provisional report, as prescribed in chapter 5 of the Minimum Information Security Standards, should be classified as “top secret”, especially as you requested us to address the security concerns that the content of your report may have on the security of the president.”
According to the standards, all the doors of any room in which classified secret or top secret material is dealt with or handled must be fitted with security locks and must be locked when it is vacated, even for a short period.
The files must be kept in a registry in a building, such as a cryptographic or a computer centre.
An access register must be instituted and kept up to date for all persons or officers not normally working in these areas.
The document, which was sent electronically to the ministers, is currently assigned a password which Madonsela gave to Police Minister Nathi Mthethwa.
Unisa criminologist Professor Rudolph Zinn said this meant that “only people with top secret security clearance will be able to read it”.
There were, however, levels of top secret security clearance. Those with a level one, which was classified “confidential”, would not have access to it.
“You and I won’t be able to read it. Even certain people in the police or the military will not be able to read it. Basically only a limited number of people would have access to it,” said Zinn.
Zinn would not speculate why the request was made for the document to be classified “top secret”, saying that it depended on its content.
Those who contravene the policy could be charged under the Protection of Information Act of 1982 and could receive a R10 000 fine or up to 10 years in jail.
Madonsela had not responded to Nxesi’s letter.
And on Saturday neither she nor her spokesman Oupa Segalwe responded to media queries.
In a statement issued late on Friday afternoon she promised to issue a comprehensive statement tomorrow, clarifying the issues that led to the court action.
However, at a media briefing on Saturday, Justice and Constitutional Development Minister Jeff Radebe, who leads the team of security cluster ministers, said: “We cannot anticipate it now. In our report to the public protector we will indicate to her what classification the report should be; what our advice is.”
Meanwhile, the DA has launched an urgent application in the Western Cape High Court to force the government to release the Public Works task team report into the upgrade of Zuma’s Nkandla residence.
loyiso.sidimba@inl.co.za
candice.bailey@inl.co.za
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