File: Public Protector Thuli Madonsela is seen at a national stakeholder consultative dialogue gathering in Pretoria on Thursday, 12 July 2012.
JOHANNESBURG - Cabinet ministers are blatantly citing bogus security concerns to delay and ultimately shut down her investigation into President Jacob Zuma&39;s Nkandla residence, Public Protector Thuli Madonsela said in her opposing affidavit handed to the North Gauteng High Court on Wednesday.
A cluster of ministers filed an urgent interdict against Madonsela in the courts on Friday to have the report stalled, claiming it contained "a plethora of breaches of state security."
Madonsela was tasked with investigating Nkandla in 2011, after receiving several complaints that public funds in excess of R200 million had been misappropriated to build the sizable homestead.
The justice, crime prevention and security cluster, made up of Minister of Police Nathi Mthethwa, Public Works Minister Thulas Nxesi, Defence Minister Nosiviwe Mapisa-Nqakula and Minister of State Security, Siyabonga Cwele, claimed it was not given a fair hearing before Madonsela&39;s report was released.
Madonsela granted the ministers the standard review period of two weeks, as well as an extension of two days. They had requested an extension of two weeks.
She has now filed an opposing affidavit, which eNCA has in its posession, defending her office and her decisions with several key arguments.
Security concerns are bogus
In the affidavit, Madonsela argues that her office was consistently mindful of security concerns regarding the president&39;s private homestead, particularly while writing the report.
She said cabinet ministers had failed to disclose that they had held a number of meetings with her since April, and also failed to "identify precisely what constitute security concerns" since then, despite being given repeated opportunities to do so.
"From the earliest stages there has been a reliance by one or more of the departments in the security cluster, on suggested security concerns," Madonsela wrote.
She said she did not understand how it could take more than two days at the most to go through the provisional report.
Madonsela also noted that the chief architect, appointed by Zuma himself, was overseeing the entire construction of Nkandla with no security clearance or expertise.
Forcing the issue
The interdict against Madonsela was served at 9am on Friday November 8 and she was given only one hour to file a notice of opposition.
"The application was brought in extraordinary cirumstances," she wrote in the affidavit.
"There will be no reason... why the applicants (having now already had ten days since my letter of November 1 2013, and drawing on their evident focus for a period of nearly four years on contended security concerns) could not by now have identified exactly what it is that prompts the anxiety."
She said she allowed for enough time to review the document and that a timeline had previously been agreed upon by all parties, after she deflected numerous earlier attempts to get her to show the ministers her report.
Madonsela also hit out at the security cluster, saying they could not provide "a single reference to any conceivable security issue," despite earlier arguing that her report contained a "plethora" of breaches.
She said there was an "absence of any factual foundation" regarding security concerns and provided her draft report confidentially, to the court only, as proof of this.
Madonsela criticised the ministers for disseminating the report within their respective departments, despite her express wishes that it stay confidential.
"The Constitution is clear: no person or organ of State may dictate to, or interfere with, the functioning of my office," she wrote.
The investigtion was hampered
"At a critical stage of the investigation... I regret to say that my office and its investigating team were frustrated, and in many instances obstructed, in our efforts," Madonsela said.
She briefly explained how she was only allowed to view certain documents for short periods of time, in the presence of government officials; and that members of her investigating team were barred from crucial meetings.
She said she was told the Special Investigating Unit, along with the Auditor General, who has no constitutional power to investigate, would conduct their own investigation into Nkandla. This has not yet happened.
"The longer it takes for the provisional report to be presented to interested parties and the final report to be released to the public, the greater the risk that the provisional report will be leaked," Madonsela noted.
According to her mandate, Madonsela is tasked with investigating any alleged maladministration in connection with the affairs of government at any level, as well as any improper or dishonest acts, omissions or offences with respect to public money.
In Annexure C of the affidavit, Madonsela states that the first complaint regarding Nkandla was recieved from a member of the public in December 2011, followed by other complaints from the DA&39;s parliamentary speaker, Lindiwe Mazibuko and Professor Pierre de Vos of the University of Cape Town in 2012.