High Noon over Nkandla: Thuli Madonsela and the four gunslingers

The one thing that is apparent from the sworn statements of Public Protector Thuli Madonsela and Police Minister Nathi Mthethwa is that they both believe that their own powers supersede that of the other. That is what the opening legal gambit before the North Gauteng High Court boiled down to: who has final say over the report. And that is what is yet to be decided before the report is made public.

Both Madonsela and Mthethwa’s affidavits assert that the opposing party acted irrationally and lied. The language is confrontational and the tone accusatory. Both affidavits effectively declare: I’m the boss, you cannot do anything with the report without my say-so.

Madonsela maintains that the contents of her report is legally and constitutionally her prerogative; Mthethwa argues that he and his colleagues have the powers to decide what constitutes threats to the security of the president and the state – and nobody else. Both sides are unlikely to budge on this position and therefore a new legal clash about the contents of the report – in particular what the ministers allege to be “a plethora of breaches of state security” – is bound to come next.

As stated here earlier, the court action over the time given to the security cluster ministers to study the report was quite unnecessary and resulted in a premature showdown between Madonsela and the four ministers. On Friday 1 November, Madonsela handed the provisional report to Mthethwa, with three other copies for the Minister of Public Works Thulas Nxesi, the Minister of Defence Nosiviwe Mapisa-Nqakula and the Minister of State Security Siyabonga Cwele. The documents had security passwords so that nobody other than the ministers could read them.

Madonsela gave them initially three working days and then extended it to five to make comments before she would release the provisional report to the affected parties. The ministers went to court to interdict her from doing so, saying they needed an extra week to comment on their security concerns.

What started out as a demand by the ministers for more time to peruse the provisional report has now become a fight about who asked who for the report, who violated its confidentiality by giving it to other people, and who has the power to decide on the security issues in the document.

The court action has become academic as the time taken to file opposing and replying papers gave the state the extension they had requested to study the report. The court needs to consider is who should bear the costs of the abandoned application.

Mthethwa says in her answering affidavit, Madonsela made an undertaking that the ministers’ comments will be considered and integrated into the provisional report before it is released to the affected and interested parties. “We welcome the undertaking, and for the reason, the relief sought will not be persisted with. The only issue … will be that of (legal) costs,” said Mthethwa.

But Madonsela and Mthethwa’s affidavits make accusations that will have long-term effects on their relationship and spill over into the next battle. The security cluster will submit their comments on the report to Madonsela on Friday and she needs to decide whether to include the comments, edit the report, and send it back to the ministers for approval. If she decides not to, and distributes the report in its current form, the state could throw the book at her.

Madonsela denies that there is anything in the report that would breach the state security. But Mthethwa says the provisional report cannot be released without the State Security Minister’s vetting “in terms of the Protection of Information Act”. [That would still be the 1982 Apartheid-era law – Ed.] He also says they had requested additional time to present Madonsela with “a comprehensive list of security breaches together with the relevant justifications for their omission from her provisional report”.

The minister’s affidavit also strongly hints that another battle is coming: “It will be argued at an appropriate time... that the respondent [Madonsela], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report”.

Mthethwa goes on to say: “Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law”.

And in another twist, the Acting State Attorney Tshifhatuwo Tshivhase has accused Madonsela of lying and making unwarranted allegations that he assisted the ministers in trying to stop her investigation. Tshivhase wants the court to refer this matter to the Bar Council for further investigation.

Madonsela said in her affidavit that she and her investigating team were “frustrated, and in many instances obstructed” by government officials. Referring to a meeting with Mthethwa, Cwele and Nxesi on 22 April, Madonsela states in the affidavit: “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 Minister of Police, Public Works and State Security (with the assistance of the Acting State Attorney and the Chief State Law Advisor) to stop the investigation.

Mthethwa denies this and accuses Madonsela of being “vexatious”. Tshivhase says in his accompanying affidavit that the allegations are “devoid of any truth”.

The fallout over these allegations could be substantial. Democratic Alliance parliamentary leader Lindiwe Mazibuko, who asked the Public Protector to investigate the Nkandla upgrades, wants an investigation into the conduct of the ministers. Mazibuko had submitted parliamentary questions to the ministers of Justice, Police, State Security, Defence and Public Works to ask whether they had tried to stop Madonsela’s investigation. She says the ministers either denied or refused to answer the questions. If Madonsela’s allegations in her affidavit are true, that they did try and impede her investigation, Mazibuko wants the ministers’ heads on the block for lying to Parliament.

Another matter of contention is who is allowed to see the confidential provisional report. Madonsela says the security cluster ministers “have an obvious interest in the report at both an official and personal level”. She is also annoyed that her provisional report has been disseminated amongst officials in their four ministries “who themselves may hardly be in a position to avoid a conflict of interest”. She says the Public Protector Act says the report may only be provided to other persons with her consent.

“None of the ministers has sought that consent from me… This is in conflict with the scheme of the Act,” Madonsela says.

The ministers retort that it is their prerogative to choose how to perform their functions within the constraints of the law. They say Madonsela did not state when she gave them the report that they were not entitled to consult security experts within their respective departments.

“The respondent [Madonsela] has made the report available to her lawyers without the consent of the applicants [the four ministers]. This conduct breaches her own confidentiality of the report,” Mthethwa states.

There is no possible way that Madonsela’s report will have an easy passage after all this. The guns are drawn and cocked on both sides; it is difficult to put them back in the holster and return to the point before the legal showdown.

Too much has been said, too many accusations were made, and too much bad blood is now out in the open. Prior to this episode, Madonsela was a thorn in the side of the state, but they kept up the pretence of supporting and respecting her work. Now it’s a matter of public record that the ministers think she is too big for her boots and needs to be put in her place. Madonsela on the other hand does not trust the ministers and is not prepared to entertain their strong-arm tactics any longer.

Madonsela said that the delay of the report would be an “injustice” to the affected parties, such as the complainants and those implicated. The ministers say in their affidavit that Madonsela does not explain what prejudice would be suffered as the report has been outstanding for the past year.

In this battle, another great prejudice is being overlooked: the citizens of the Republic and the taxpayer are treated with disdain by having to foot the bill for the legal battles and not being given the answers they deserve on the Nkandla upgrade. (Neither side has made that point in their papers.) The effect of this week’s legal clash is that those answers are more far off then ever.

Looking at the events of the last two weeks, and with a benefit of hindsight, a picture of a relationship that is irreparably broken emerges. What has also emerged is a likelihood of a constitutional crisis over the Nkandla report, a battle of competing powers that can only be resolved through a judicial process that can take months.

Sound familiar? Of course it does – it is exactly the same pattern we have witnessed in the Spy Tapes saga, the Zimbabwe election report and the Arms Deal Commission to conceal information from the public.

The current fight, therefore, suits rather conveniently the security cluster ministers and, inter alia, President Zuma. This fight created a cloud of dust that will soon possibly become a big sandstorm – one that exists for one reason and one reason only: to keep the truth of Nkandla hidden from the citizens of South Africa. DM