Why Should Madonsela give the Nkandla report to Parliament?

I have read and heard comments by many, especially those whose comments can be interpreted as defending President Jacob Zuma, that Public Protector Thuli Madonsela should have submitted her Nkandla investigation report to Parliament for consideration on whether to implement its recommendations or not.

Carefully assessing this criticism, one wonders why both the ruling African National Congress and Zuma supporters are particularly concerned about the Nkandla report when other reports have previously been released in the same manner, the latest being that of Pantsi Tlakula of Independent Electoral Commission and South African Broadcasting Corporation’s acting Chief Operations Officer, Hlaudi Motsweneng. With both organisations accounting to the Parliament, these critics have not, to date, expressed any concern or objection to the Public Protector releasing these reports publicly without first submitting them to Parliament as they expect of her to have done the Nkandla report.

Writing in The New Age on 28 March 2014, Krish Naidoo criticised Madonsela for this, among others. The latest is an opinion piece written on Politicsweb last week Friday by Mbuyiseni Mathonsi, a Provincial secretary of SADTU and the Provincial Treasurer of SACP in KwaZulu Natal, who said the report was “a joke/a fuss and a concocted after thought with no other reason but to play at a political terrain”. Mathonsi questioned the release of the report through a press conference, claiming “either intentionally or intentionally” the Public Protector “misread section 8 (2A) (a) of the Public protector constitution”. He said Madonsela understood this as implying “the public must be necessarily reported to directly” – something he said “may amounts to anarchy and in disregard of institutions established for maintaining democracy”.

It is not clear why Madonsela is being criticised for releasing her Nkandla report because – as noted earlier – she has previously released other reports “open(ly) to the public” for she did not, for “exceptional circumstances”, deem them “confidential”.

Even if there were “exceptional circumstances” that required her to release any of her investigation report findings “open(ly) to the public” because of its confidentiality, Section 8, subsection (2A)(b) of the Act requires, in such cases, that she furnishes the “committee… with the reasons therefore and, if the committee concurs, such report shall be dealt with as a confidential document in terms of the rules of Parliament”. The report will then only be regarded confidential (and thereby possibly classified) if it will:

a)      Endanger the security of the citizens of the Republic;

b)      Prejudice any other investigation or pending investigation;

c)       Disturb the public order or undermine the public peace or security of the Republic;

d)      Be prejudicial to the interests of the Republic; or

e)      In the opinion of the Public Protector have a bearing on the effective functioning of his or her office.

According to Mathonsi, the Act “instructs” Madonsela submit her report to Parliament because not many people listened to and or watched her during her press conference when she released the report. He claims is because many of them do not have TVs or radios. Unless one can prove that I am reading an outdated Public Protector Act (which I will admit, if true) – it appears some of the claims by Mathonsi are misplaced, ill-informed and meant to unreasonably discredit the Public Protector and her reports.

One is further inclined to assume that Mathonsi and Naidoo – and many like them who have seemingly unreasonably, in some instances, attacked the Public Protector – are ignorant of Section 8 (1) of the Public Protector Act of 23 of 1994 that says she “may… in the manner… she deems fit”, make known to any person (Zuma) any finding or recommendation in respect of a matter being investigated by her. This is not an instruction at all.

A further reading of Section 8 (2)(a) of the Act empowers the Public Protector to submit a report in writing on the activities of her office to the National Assembly “at least once every year… provided that any report shall be tabled in the National Council of Provinces”. Again, and unless one is wrong, it can be assumed that this refers to the annual reports tabled by her office yearly and not necessarily any of her investigations. It may well be that there is a differing interpretation of this section of the Act. Should that be the case, it is possible that my and Mathonsi et al’s interpretation of this section differs.

As noted further noted in section 8 (2)(b) of the Act, the Public Protector is to submit a report to the National Assembly on the findings of “a particular” investigation if:

1)      She “deems it necessary”,

2)      She “deems it in the public interest”,

3)      It requires the “urgent attention of, or an intervention by”, the National Assembly,

4)      She is “is requested to do so” by the Speaker of the National Assembly, or that

5)      She is “requested to do so” by the Chairperson of the National Council of Provinces.

Another section of the Act, section 8, subsection (2A) (b), states that the Public Protector should “submit a report to the National Assembly”. It is equally important to add that this section does not “instruct” her as many have alleged it does. Instead, it says that she is to “submit a report to the National Assembly on the findings of a particular investigation” and not on every investigation as many critics seem to suggest it requires of her. Additionally, the same Section 8 (2)(b) says the Public Protector may conditionally “submit a report to the National Assembly on the findings of a particular investigation” (emphasis) if it meets the requirements mentioned above.

Mathonsi alleges that a “view by the Public Protector that parliament must write and request the report to her is ridiculous and in fact parliament must check whether it cannot prefer charges of misconduct against her, to me she is in breach of the constitution”. If, however, one looks at the above section of the Act, nowhere does it instruct the Public Protector to submit a report to Parliament. It is therefore unfounded that the Public Protector can – at the behest of President Zuma and ANC supports – submit the Nkandla report to Parliament even when she “deems it [not] necessary” as directed by the Act. To further insinuate that she be charged with “misconduct” for allegedly bridging Section 8 (2)(b) of the Act.

Having considered Section 8 (2)(b) of the Act, it is correct to assume that the Public Protector has not deemed it “necessary” nor does the report require “urgent attention” or “intervention” to be submitted to the National Assembly. Neither has the Speaker of the National Assembly or chairperson of the National Council of Provinces “requested” her to submit the Nkandla report to them as they are compelled by Section 8 (2)(b)(iv) and (v), respectively, if they so wish.

Why haven’t they?

And why do President Zuma and ANC supporters now make it their responsibility to force Madonsela to submit the report to the Speaker of the National Assembly and or Chairperson of the National Council of Provinces even when have not “requested” her do so mainly because she did not “deem it necessary” to and that she has complied with Section 8, subsection (3) of the Public Protector Act of 23 of 1994: that she furnished Zuma with findings of her investigation into Nkandla because he was implicated?

On the miscalculation of the total costs

Mathonsi criticised the Public Protector for miscalculating the total costs of the Nkandla upgrades. On page 6, paragraph (c), of the report, Public Protector said: “More items were added to the project after the concerns were raised in 2009, bringing the cost from the initial R65 million, which was the subject of complaint in 2009, to R215 million, which has since been spent, while outstanding work is currently estimated at R36 million bringing the envisaged total cost to R246 million.” To a reasonable reader, this meant: R215m + R36m=R251. However, carefully looking at page 187, the Public Protector correctly indicates as follows:

 

# CONSULTANT NAME TOTAL PAYMENTS  
1 Total payments to contractors R 161,418,824.26  
       
2 Value of contractor payment certificates certified but no yet paid R 3,672,748.49  
3 Total payments to Professional Consultants R 50,352,842.93  
4 Cost estimate for Phase III excluding Consultants fees R 31,186,887.36  
TOTAL     R 246,631,303.04
   

Mathonsi insisted he and his colleagues at CLEEBLAW had “read the report and we do insists that it has a lot of inconsistencies, contradictions and flaws and for us to do that we do not need a permission of the Public Protector, the liberal media or the opposition”. It is therefore unclear why figures on page 8 and 187 of the report do not match.

 Period of Investigation

On page 108 of the report, the Public Protector notes that “the investigation focused mainly on the period from the date that President Zuma took office on 9 May 2009 to the end of July 2013”. However, in the executive summary of the report on page 10, she notes that the investigation covered the period “from the date of first assessment of the requirements to upgrade the security at the President’s private residence on 19 May 2009 to the end of January 2014”. Again, to a reasonable reader – this, even to me, is quite confusing.

Grammar and language style

Mathonsi questioned what he called the style grammar and language in the report, claiming it reflects “the mood, attitude, prejudices and stereotypes of a writer”. It is surprising that the very same man who tries to find every fault, if any, in the Public Protector report on Nkandla is the same person who, unfortunately, cannot distinguish the different between a man and a woman. By this one is referring to his statement that:

Her [Madonsela’s] spokesperson, Kgalalelo Masibi, demonstrating his little understanding of the mandate of his boss, he says “it is the law that gives the public protector the right to make conclusions and rule on matters”.

It is clear from the abovementioned statement that Mathonsi himself – while taking a swipe at the Public Protector for language and grammar – thinks he is so clever (as if English is his mother tongue) that he sees nothing wrong with it. How rich!

Mathonsi claims the report was written not to convey “facts” but as “a novel in a story book style”. According to him, the report was written “under the mood of anger, frustration, and unhappiness”. “This is further supported by the fact that there are many phrases where she literally says she was frustrated as she believed she was under-resourced and this narrative dominates her report. She also appears to be very vindictive and fond of settling scores with those who challenge her office,” Mathonsi wrote, referring to page 89, 90, 91, and 92 of the report, among others.

Another grammar error Mathonsi seems to have committed is when he indicated elsewhere in his critique was that the Public Protector report is nothing but “JOKE OF THE SENTURY”. If one recalls well, the correct spelling is: century and NOT sentury. Right?

Insulting or criticising the Public Protector?

Section 1(A) of the Public Protector states clearly that the Public Protector shall be a South African citizen who is a fit and proper person to hold such office, and who:

(a)    Is a Judge of a High Court, or

(b)   Is admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having been so admitted, practised as an advocate or an attorney; or

(c)    Is qualified to be admitted as an advocate or an attorney and has, for a cumulative period of at least 10 years after having so qualified, lectured in law at a university; or

(d)   Has specialised knowledge of or experience, for a cumulative period of at least 10 years, in the administration of justice, public administration or public finance; or

(e)   Has, for a cumulative period of at least 10 years, been a member of Parliament; or

(f)     Has acquired any combination of experience mentioned in paragraphs (b) to (e), for a cumulative period of at least 10 years.

Considering the above, it is therefore not clear why Mathonsi alleges that there is a “view that the public protector does not account anywhere and that is”. Whosever this view, this is wrong because the Public Protector accounts to Parliament. It is also not in dispute that the Public Protector may vacate her office due to ill-health or at her own request as stipulated in Section 2(3) of the Act. It is therefore unclear why Mathonsi needs to remind us of this. Or maybe this is his “view” that whenever the Public Protector speaks out against maladministration and corruption, she’s seen as a law unto herself or “Lord who art in Heaven”, as he put it?

Unfortunately, in this critique of the Public Protector report, among others, Mathonsi said:

  1. The Public Protector is a “willing horse” of the Chapter 9 institutions that is willing to be used to rule the country,
  2. The Nkandla report “has been well calculated and well suited to further their agenda against the president in particular and the ANC in general”,
  3. The Public Protector behaves like a “Lord who art in Heaven” whose Nkandla report is littered with “inconsistencies, contradictions and flaws” and thinks “she is above the law”,
  4. The Nkandla report “is a joke/ a fuss and a concocted after thought with no other reason but to play at a political terrain”,
  5. The Public Protector “cannot count” because her report is “found wanting in mathematical computation” (I also noted this earlier) and is therefore “obviously economic with the truth”,
  6. The Nkandla report is “JOKE OF THE SENTURY (sic)”,
  7. The Public Protector “had not concluded her business [investigation]”,
  8. The Public Protector report on Nkandla is meant to “mislead and shape the thinking of society to accept her exaggerated view about the upgrades in the private residence of the president through flaws and inconsistencies” and that it “misleads the public by either selective quotation of or quoting out context a number of statements and court decisions”,
  9. The Nkandla report “is ridiculous” and that “she [Public Protector] is in breach of the constitution” and that she “exceeded her mandate and did not perform her work with the competence required”,
  10. As the responsible person, the Public Protector showed her “mood, attitude, prejudices and stereotypes” in the report because it shows it was “prepared under the mood of anger, frustration, and unhappiness”, and that
  11. The Public Protector “appears to be very vindictive and fond of settling scores with those who challenge her office” and is disrespectful in the manner she communicates with the President.

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