Paperless trail "may lead to witness box"

All communication relating to Nkandla was “strictly regulated and limited … to verbal reporting”

The department of public works has stonewalled a demand for further government documents relating to the upgrade of President Jacob Zuma’s Nkandla homestead, saying that nothing was committed to paper because of the project’s sensitivity.

All communication relating to Nkandla was “strictly regulated and limited … to verbal reporting”, said an affidavit sent by the director general of the department of public works, Mziwonke Dlabantu, to lawyers for the M&G Centre for Investigative Journalism (amaBhu-ngane) last Friday.

As a result, no documents existed pertaining to the expenditures overseen and undertaken by senior public works officials.

Dlabantu claimed that the “sensitive” nature of the project, estimated to have cost more than R240-million, meant that “there was no electronic communication of sensitive information. All staff … involved in the project were instructed to provide verbal progress reports to officials … when required to do so.”

The department’s response is the latest development in amaBhungane’s long-running legal battle to secure all documents pertaining to public procurement at Nkandla.

Following a request for information under the Promotion of Access to Information Act (Paia) and subsequent court action, the department finally released about 12,000 pages of official documents last year.

Yet, the documents were largely those generated by the department’s KwaZulu-Natal office, which was directly in charge of the project.

Conspicuously absent from the records that were disclosed were correspondence and minutes of meetings involving more senior officials and politicians who would have directed the Nkandla upgrade from the public works head office in Pretoria.

In particular, Zuma’s role remained unclear.

In addition, the released documents point to the existence of other records that remain under wraps. They include emails that refer to attachments that are not included, as well as annexures and minutes of meetings that are alluded to but not disclosed.

In December last year, amaBhungane went to the Pretoria high court to argue that the disclosure was incomplete and that the department was obliged to provide further documents.

The department disputed this, saying it had provided all the documents in its possession and that no further disclosures were possible.

In April this year Judge Vuyelwa Tlhapi of the Pretoria high court ordered Public Works Minister Thulas Nxesi and the department to furnish amaBhungane with a full set of Nkandla documents, including those filed at the department’s head office in Pretoria, within 30 days. The deadline expired last week.

Tlhapi ordered Dlabantu to comply with section 23(1) of Paia, under which public officials must account for steps taken to locate all ­documents that are claimed to be untraceable or nonexistent.

The affidavit sent by Dlabantu to amaBhungane last week details his attempts to do this, listing all the officials he approached to furnish them.

As there had been no communications on paper or in electronic form, the officials were not able to supply documents, he said.

Dlabantu quoted former minister of public works Gwen Mahlangu-Nkabinde as saying she had no documents and that her predecessor Geoff Doidge appointed his deputy Hendrietta Bogopane-Zulu to oversee the Nkandla project.

Dlabantu did not say whether he had approached Bogogopane-Zulu.

His affidavit makes it clear that, apart from former minister Mahlangu-Nkabinde, his approaches have been largely confined to junior officials. The president, former ministers, deputy ministers and directors general were not asked to provide records.

In last year’s high court application, amaBhungane’s lawyers pointed out that the department had initially argued that, because of its sensitivity, none of the information requested could be provided – but had gone on to release 12 000 pages of documents.

This suggested that the department’s account could not be trusted, they argued.

They asked the court to refer the matter for oral evidence according to a legal rule known as “Plascon-Evans”, which provides that if there is a significant dispute of facts between parties a judge may refer the matter to oral evidence.

This would have allowed ­amaBhungane’s lawyers to cross-examine senior officials on the whereabouts of the missing records.

AmaBhungane partner Stefaans Brümmer said this week that, in the light of the department’s latest unsatisfactory response, a further application for the dispute to be referred for oral testimony would be considered.

“The long road to the truth about Nkandla may yet wind through the witness box of the Pretoria high court,” Brümmer said.

Vinayak Bhardwaj is advocacy co-ordinator of the M&G Centre for Investigative Journalism and actively involved in the court matter.

- M&G