Public Protector clarifies issues relating to the Nkandla provisional report court bid
The Public Protector respects the court process relating to her provisional report on the investigation into allegations of impropriety and unethical conduct relating to the installation and implementation of security measures by the Department of Public Works at and in respect of the Nkandla private residence of President Jacob Zuma in KwaZulu-Natal.
As such, the Public Protector will not anticipate in her remarks the outcome of the application. However, the Public Protector wishes to clarify the reasons that led to her unwillingness to granting the organs of state concerned more time than the five days she had given them and the rationale behind her opposition of the security cluster’s court bid.
On the reluctance to grant the state a longer extension, the Public Protector was of the view that acceding to the request would be an injustice on the affected and implicated parties. She was, as indicated in her letter to Minister Thulas Nxesi on 5 November 2013, concerned that leaving the report in the hands of the security cluster for an unduly extended period would prejudice in particular those that she has made provisional adverse findings against and those she has quoted as having provided her with evidence and who, to date, have not received the report. It would also not be in the public interest if the security cluster has exclusive possession of the report. These concerns were expressed to the Minister, who offered no solutions to them.
Despite these concerns, the Public Protector was in the process of reconsidering her position, in the interest of keeping the spirit of cooperation that she has been trying to engender every time she encountered obstacles in the investigation.
However, the security cluster gave the Public Protector no opportunity to do so because the letter requesting more time arrived on the afternoon (around 14H00) of Thursday, November 7, 2013, indicating that if she did not respond in an hour, it would be assumed that she was declining. The Public Protector was out of town on the day and the state was made aware of this. She only got the information later than night. A response had been prepared when the Public Protector received court papers shortly before 09H00 on Friday, November 8, 2013.
Regarding the basis for opposing the concerned organs of state’s court bid, it is now public knowledge that the deadline of the November 15, 2013 for comments has already been de facto-granted in that it was the Public Protector who asked for the postponement of the matter and she determined the exact number of days.
The public may want to know why she opposes the extension if it has been granted, de facto. The Public Protector opposes the application on two grounds. The first is that the security cluster says it has a right to a provisional report and the other being that the court papers are in effect asking for an extension that goes beyond the 10 working days requested in the two letters to her. The security cluster requests that they be given further opportunity to peruse the “revised” provisional report to determine whether all the security concerns would have been addressed and if not be granted further opportunity to make written comments within seven days. In the event the Public Protector does integrate all of the concerns raised, the security cluster requests leave to approach the court. (See attached flow chart.)
The Public Protector will clarify in detail in court papers why she believes the security cluster’s request is unlawful, unconstitutional and violates the independence of her office.
The Public Protector would further like to put it on record, again, that it was not her who voluntarily decided to share the report in question with the concerned organs of state ahead of other parties as has been suggested. It was, in fact, these organs of state that made a special request to the Public Protector, advancing the reasons that they wanted to ensure that the content does not compromise the security of the President.
The attached flowchart shows how a provisional report of the Public Protector is normally handled, how the current report was handled at the request of the state and how the state has now, in court papers, demanded that the report be handled.