Cosatu will be the first to challenge the Protection of State Information Bill in court because it risks turning South Africa into a security state again, general secretary Zwelinzima Vavi warned on Thursday. Vavi said that although the Bill was redrafted under pressure from the Congress of South African Trade Unions, the version passed by the National Assembly last year still raised the spectre of abuse of classification to conceal corruption.
He told MPs the scope of the draft legislation was too wide, the penalties it imposed disproportionate, and the potential impact on South Africa's democratic values devastating. "You have to be concerned that the scope of the Bill is extended way beyond what is necessary ... it takes a huge swipe at everything that moves," he told a third day of public hearings on the secrecy Bill by the National Council of Provinces.
Cosatu's biggest fear was the Bill might "inadvertently draw us closer to a threat of entrenching a security state". "Back to where we come from -- the police state. Everything marked confidential and everybody seeing something marked confidential suddenly fearing 15 to 25 year imprisonment." Reminding MPs that he represented two million union members -- and voters -- Vavi said the Bill was ripe for constitutional challenge on several grounds and Cosatu would not be deterred by the fact that it would find itself on the same side as opposition parties. He singled out clause 3 (2) (b), which allowed the minister of state security to confer the power to classify information on any other state entity, and clause 49, which bans the publication of anything deemed a state security matter, as unacceptable. "You cannot give the minister a blanket right. What we fear is that if you give such a blanket right you might end up with the lease agreements between the police and the various agencies being classified. That is very, very dangerous. Please don't pass a law you will regret in future," he said. Had the Bill been law, these provisions and those that would send journalists to jail for disclosing state secrets might have meant that two scandal-tainted ministers sacked last year -- Sicelo Shiceka and Gwen Mahlangu-Nkabinde -- would still be in their posts, Vavi said. "Just close your eyes and think if we would have seen the backs of two ministers last year. We would have not known that if it had not been for the excellent work of the media," he said, adding that the Bill was not the place to address concerns about media ownership and bias.
"The persecution of the media would only exacerbate the problems of inaccuracy and bias. In our view, it is necessary to enhance investigative reporting in the public interest. However as the Bill places extensive restrictions on the access and disclosure of classified information, it would necessarily severely curtail this objective."
Vavi went on to bemoan the Bill's assertion, contained in clause 1 (4), that it trumped the progressive Promotion of Access to Information Act. "What it means is that fundamental piece of transformation becomes secondary to security legislation. We think that is very dangerous." Furthermore, the draft law's provisions on whistleblowers -- many of them union members -- who disclosed classified information to reveal wrongdoing was plainly unconstitutional. Clause 43 offered exemption from prosecution only if the revelations pertained to the whistleblower's employer and, in addition, shifted the burden of proof from the state to the accused. "We have said if these types of clauses go through then we will be left with no choice but to approach the Constitutional Court," he said. "We will be the first to arrive there. Our lawyers are standing very ready to do so."
Veteran human rights lawyer George Bizos, appearing on behalf of the Legal Resources Centre (LRC), listed seven fundamental flaws in the Bill and concurred that it violated the Constitution. The LRC agreed with Vavi's criticism of the heavy onus the Bill sought to place on those accused of breaching it, saying it could see somebody "condemned to 25 years in jail for being stupid".
Bizos urged MPs to refer the Bill to the Constitutional Court, warning that if it were enacted in its current form "there will be a very long queue of applicants to take the president, the minister of justice to court". He then deviated from his text to deplore the government's planned assessment of the Constitutional Court and Supreme Court of Appeal and urged the government to follow former president Nelson Mandela's example in respecting the courts.
Vavi said he found succour in the fact that Mandela's former defence lawyer shared his views on the Bill. "It gives us comfort that you are in the same corner," he said.
Source: Mail & Guardian
Showing posts with label Gwen Mahlangu-Nkabinde. Show all posts
Showing posts with label Gwen Mahlangu-Nkabinde. Show all posts
Thursday, March 29, 2012
Saturday, February 18, 2012
Zuma 'disconnected from reality' on corruption: DA
President Jacob Zuma's remarks about corruption show he is "completely disconnected from reality", the Democratic Alliance says.In his reply on Thursday to debate on his state of the nation address, Zuma said "most of the corruption you read about in the media is exposed as a result of the work of government and its agencies", DA spokesman Dion George said. "These are the words of a president who is completely disconnected from reality."
South Africa's major corruption scandals had not been broken by government, but by the media, and the opposition. These included the arms deal, to which former president Thabo Mbeki, Zuma, and then defence minister Joe Modise were all linked, he said. Another was the so-called travelgate scandal, involving a number of high ranking ANC MPs misusing parliamentary travel vouchers. George said others included the so-called oilgate scandal, which traced the involvement of an ANC-linked company in diverting money from a state contract to the coffers of the ANC. There was also the SA Police Service lease scandal, in which former public works minister Gwen-Mahlangu Nkabinde and suspended national police commissioner Bheki Cele were involved. Another was the Chancellor House/Hitachi controversy, which saw the ANC's front company landing lucrative contracts with the state.
"Nowhere is the government's attitude towards exposing corruption more clear than in its determination to see the Protection of State Information Bill pushed through Parliament in its current form," George said. Should this law be passed, journalists and whistle-blowers who reported on what government deemed secret would face up to 25 years in prison. It would be illegal to expose corruption and serious crime and the poorest of the poor would continue to lose out as government resources were redirected away from service delivery. "Government is not the last line of defence against corruption. The media and the opposition are."
This was why the DA continued to fight against the bill as it currently stood, and would fight for a strengthened public interest override to ensure that ordinary citizens and the media retained the right to know, George said. On Thursday, Zuma told the National Assembly South Africa was the only country with a "programme" to fight corruption. Zuma said it was "important to emphasise that most of the corruption you read about in the media is exposed as a result of the work of government and its agencies".
Amid laughter from opposition benches, he continued: "What we should remember is that South Africa is the only country that has a programme to fight corruption. It's not being fought anywhere else."
Source: Times Live
South Africa's major corruption scandals had not been broken by government, but by the media, and the opposition. These included the arms deal, to which former president Thabo Mbeki, Zuma, and then defence minister Joe Modise were all linked, he said. Another was the so-called travelgate scandal, involving a number of high ranking ANC MPs misusing parliamentary travel vouchers. George said others included the so-called oilgate scandal, which traced the involvement of an ANC-linked company in diverting money from a state contract to the coffers of the ANC. There was also the SA Police Service lease scandal, in which former public works minister Gwen-Mahlangu Nkabinde and suspended national police commissioner Bheki Cele were involved. Another was the Chancellor House/Hitachi controversy, which saw the ANC's front company landing lucrative contracts with the state.
"Nowhere is the government's attitude towards exposing corruption more clear than in its determination to see the Protection of State Information Bill pushed through Parliament in its current form," George said. Should this law be passed, journalists and whistle-blowers who reported on what government deemed secret would face up to 25 years in prison. It would be illegal to expose corruption and serious crime and the poorest of the poor would continue to lose out as government resources were redirected away from service delivery. "Government is not the last line of defence against corruption. The media and the opposition are."
This was why the DA continued to fight against the bill as it currently stood, and would fight for a strengthened public interest override to ensure that ordinary citizens and the media retained the right to know, George said. On Thursday, Zuma told the National Assembly South Africa was the only country with a "programme" to fight corruption. Zuma said it was "important to emphasise that most of the corruption you read about in the media is exposed as a result of the work of government and its agencies".
Amid laughter from opposition benches, he continued: "What we should remember is that South Africa is the only country that has a programme to fight corruption. It's not being fought anywhere else."
Source: Times Live
Tuesday, February 14, 2012
Buthelezi tackles Zuma on corruption
Warning that corruption was on the verge of making South Africa dysfunctional, IFP leader Mangosuthu Buthelezi told President Jacob Zuma on Tuesday that he was shying away from tackling it. “Corruption is the bane of our country,” he said during debate in the National Assembly on last week's State of the Nation address. Buthelezi described corruption as a fundamental threat to South Africa's constitutional democracy. “Yet, sir, you shy away from this issue.”
He said a measure of Zuma's leadership could be taken less by what the president had said than by what he had not said. “How can we embrace hope when our leadership refuses to acknowledge the many problems confronting our country, or the causes that lie at their root? Year after year, the State of the Nation address shifts, without ever addressing previous failures.” Buthelezi said it was an “unspoken fact” that corruption had resulted in the axing of two ministers - Sicelo Shiceka and Gwen Mahlangu-Nkabinde. “The national police commissioner, Mr Bheki Cele, is still suspended pending an investigation into corruption. “The Speaker of the KwaZulu-Natal legislature, Ms Peggy Nkonyeni, and MEC Mr Mike Mabuyakhulu are facing corruption charges in court,” he said.
Two of the nine provinces had “all but collapsed” and the administration of the state was “in shambles”. “Limpopo has been rendered bankrupt through corrupt activities and five of its departments have been taken over by national government.” “In the Eastern Cape, the education system has completely collapsed due to maladministration and corruption, forcing national government to intervene.”
In Gauteng, the provincial government had sought help from the National Treasury for its health department, which was on the verge of collapse. The Free State had sought help after discovering financial mismanagement and non-compliance in supply chain processes in its police roads and transport department. “How, Mr President, do we explain the contamination of public service and commercial interests? It is fatal and yet pursued relentlessly from the lowest to the highest levels of government. “Too many, and I dare say the overwhelming majority, are trying to make money on account of holding public office, being in politics or exercising public power.”
Last year, Special Investigating Unit head Willie Hofmeyr told MPs that 20 percent of South Africa's procurement budget was lost to corruption each year. “According to Transparency International's 2011 Corruption Perceptions Index, South Africa is perceived to be becoming more corrupt with each passing year.” This perception was rooted in reality. “On a scale of 0 (being highly corrupt) to 10 (being very clean), we have fallen from a ranking of 5.1 in 2007, to 4.1 in 2011. “The unspoken fact is that we are on the verge of joining the ranks of dysfunctional states, as the effects of corruption debilitate all spheres of life,” Buthelezi said.
The IFP leader, who turns 84 this year, also criticised Zuma for his support, last Thursday, of the South African Democratic Teachers' Union (Sadtu). “Mr President, you praise the trade unions, and even Sadtu, as if they should be thanked for doing less than the full measure of their destructive capabilities. “Praising the South African Democratic Teachers' Union for its diligent teachers was a step too far in placating the unions.”
The ANC-aligned union continued to act like an organisation “hell-bent on destroying the future of our children”, and should be rebuked, not praised, for its actions, he said, to cries of support from opposition benches. “Instead of acting like responsible educators, some members of Sadtu have, on numerous occasions, proven themselves irresponsible, unprofessional and unfit to educate South Africa's learners.”
Buthelezi also suggested that the ruling party was too close to the country's four major banks. “Another major policy mistake is maintaining the four retail bank policy and tolerating the collusion and other restraints of trade openly practised by our banks.” A lack of “real competition” meant they were not forced to take risks they did not want to take, forcing all the “risky business” onto the Industrial Development Corporation and the Development Bank of Southern Africa. “It would seem as if your government, Mr President, has a greater commitment to serving the banks than the people we represent.”
On the economy, Buthelezi said Zuma had not explained how two sectors that should be booming as a result of high international demand - agriculture and mining - were “in reverse due to government's many policy failures”. Another unspoken fact was that the latest Global Competitiveness Rankings of the World Economic Forum highlighted how corruption, wasteful expenditure and government red-tape was increasingly hindering business development, SMMEs and investment in South Africa.
Buthelezi said there was a “disconnect” between the government and the reality of everyday life in South Africa. He told Zuma his address had lacked accountability. “It lacked accountability on the crisis in health, the crisis of education and the crisis of corruption. “What you have said looks good on paper, but what you have not said can prevent the fulfilment of the best-laid plans."
Source: IoL
He said a measure of Zuma's leadership could be taken less by what the president had said than by what he had not said. “How can we embrace hope when our leadership refuses to acknowledge the many problems confronting our country, or the causes that lie at their root? Year after year, the State of the Nation address shifts, without ever addressing previous failures.” Buthelezi said it was an “unspoken fact” that corruption had resulted in the axing of two ministers - Sicelo Shiceka and Gwen Mahlangu-Nkabinde. “The national police commissioner, Mr Bheki Cele, is still suspended pending an investigation into corruption. “The Speaker of the KwaZulu-Natal legislature, Ms Peggy Nkonyeni, and MEC Mr Mike Mabuyakhulu are facing corruption charges in court,” he said.
Two of the nine provinces had “all but collapsed” and the administration of the state was “in shambles”. “Limpopo has been rendered bankrupt through corrupt activities and five of its departments have been taken over by national government.” “In the Eastern Cape, the education system has completely collapsed due to maladministration and corruption, forcing national government to intervene.”
In Gauteng, the provincial government had sought help from the National Treasury for its health department, which was on the verge of collapse. The Free State had sought help after discovering financial mismanagement and non-compliance in supply chain processes in its police roads and transport department. “How, Mr President, do we explain the contamination of public service and commercial interests? It is fatal and yet pursued relentlessly from the lowest to the highest levels of government. “Too many, and I dare say the overwhelming majority, are trying to make money on account of holding public office, being in politics or exercising public power.”
Last year, Special Investigating Unit head Willie Hofmeyr told MPs that 20 percent of South Africa's procurement budget was lost to corruption each year. “According to Transparency International's 2011 Corruption Perceptions Index, South Africa is perceived to be becoming more corrupt with each passing year.” This perception was rooted in reality. “On a scale of 0 (being highly corrupt) to 10 (being very clean), we have fallen from a ranking of 5.1 in 2007, to 4.1 in 2011. “The unspoken fact is that we are on the verge of joining the ranks of dysfunctional states, as the effects of corruption debilitate all spheres of life,” Buthelezi said.
The IFP leader, who turns 84 this year, also criticised Zuma for his support, last Thursday, of the South African Democratic Teachers' Union (Sadtu). “Mr President, you praise the trade unions, and even Sadtu, as if they should be thanked for doing less than the full measure of their destructive capabilities. “Praising the South African Democratic Teachers' Union for its diligent teachers was a step too far in placating the unions.”
The ANC-aligned union continued to act like an organisation “hell-bent on destroying the future of our children”, and should be rebuked, not praised, for its actions, he said, to cries of support from opposition benches. “Instead of acting like responsible educators, some members of Sadtu have, on numerous occasions, proven themselves irresponsible, unprofessional and unfit to educate South Africa's learners.”
Buthelezi also suggested that the ruling party was too close to the country's four major banks. “Another major policy mistake is maintaining the four retail bank policy and tolerating the collusion and other restraints of trade openly practised by our banks.” A lack of “real competition” meant they were not forced to take risks they did not want to take, forcing all the “risky business” onto the Industrial Development Corporation and the Development Bank of Southern Africa. “It would seem as if your government, Mr President, has a greater commitment to serving the banks than the people we represent.”
On the economy, Buthelezi said Zuma had not explained how two sectors that should be booming as a result of high international demand - agriculture and mining - were “in reverse due to government's many policy failures”. Another unspoken fact was that the latest Global Competitiveness Rankings of the World Economic Forum highlighted how corruption, wasteful expenditure and government red-tape was increasingly hindering business development, SMMEs and investment in South Africa.
Buthelezi said there was a “disconnect” between the government and the reality of everyday life in South Africa. He told Zuma his address had lacked accountability. “It lacked accountability on the crisis in health, the crisis of education and the crisis of corruption. “What you have said looks good on paper, but what you have not said can prevent the fulfilment of the best-laid plans."
Source: IoL
Friday, July 15, 2011
Protector's challenge to the president
Thuli Madonsela has thrown down the gauntlet to President Jacob Zuma, demanding that he confront her awkward findings and recommendations on two police lease deals worth a total of R1.78-billion. On Thursday the public protector released the second of her devastating reports on the leases, calling on Zuma and his Cabinet to take action against Minister of Public Works Gwen Mahlangu-Nkabinde, national police commissioner Bheki Cele and senior officials.
Madonsela's latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid. In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.
Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report. Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?
The political ramifications of both options are significant. Madonsela's recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week's media leak of the protector's "imminent arrest".
But if Zuma acts on her recommendations there could be unpleasant political consequences -- particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.
And it is suspicious that Mahlangu-Nkabinde, Doidge's replacement, promptly suspended director general Siviwe Dongwana -- who was also investigating the deals -- and pushed the Pretoria lease through against senior legal opinion and despite her department's decision to suspend the lease.
Commenting on such suspicions, Madonsela said: "We could not find evidence of criminality. We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can't make findings on the basis of a hunch. Their behaviour was strange." She said: "I am not prescribing what should be done, but I expect the president to do the right thing."
The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector's investigation. Madonsela said Mahlangu-Nkabinde's behaviour was improper and unlawful and the minister had "failed to meet the requisite of statesmanship expected from her". She urged Zuma to consider taking action against Mahlangu-Nkabinde. The minister should, within 60 days, "report to the Cabinet on her actions in relation to the procurement of the leases … and her failure to fully co-operate with the public protector".
Zuma will then have to deal with the Cele problem -- or publicly duck it. The commissioner once provided muscle for Zuma's rise to the presidency and is now rumoured to be part of a faction aiming to unseat him. Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration. "The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS," Madonsela said. These included Cele.
She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department. And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu's building.
The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do. "The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts," she said.
In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations. In both cases she said the police -- Cele in particular, although he denies this -- had identified the buildings before involving the public works department, which is what they should have done. Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police's stretched operations budget. Shabangu contacted police and public works officials "and is alleged to have put pressure on them in regard to the finalisation of the procurement process".
Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu's role. "The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu's company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him," she said. Little has changed in the protector's report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses -- now dealt with in the final report -- it is easy to understand why.
Commissioner Cele was at pains to point out that he did not invent the SAPS's need for a new lease. "On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009," he told the protector.
One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban. But Madonsela says two of his subordinates -- Generals Hlela and Terblanche -- confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building. She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.
Cele points a finger at public works as the department responsible for managing the procurement process correctly. "The DPW is solely responsible for the unlawful conclusion of the lease agreement," he says.
Mahlangu-Nkabinde's version is contradicted by almost every other player in the leasing saga. According to Madonsela's report, the minister explained a mysterious increase in floor space needed by police -- which ended up being exactly what was on offer at Shabangu's building -- as being added "to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas". "This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS," the protector noted.
The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu's bankers that the transaction was proceeding. She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.
Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases. He further denied ever meeting the minister outside her office. Asked to explain how he became aware of the SAPS's need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a "needs analysis" indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.
But Madonsela noted: "Shabangu's above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS's need for alternative accommodation, was only submitted to the DPW on 23 June 2010. "However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier." Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the "investigation" and who leaked it. As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.
Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support. The newspaper group then produced "irrefutable proof" of its claims — an "information note" showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela's business interests. Police also apparently gave details of departmental payments to her company.
But, significantly, the note was directed to the Hawks's commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat's attention. "High-level sources" then leaked the document to a journalist, couched in claims of "imminent arrest" on "fraud and corruption charges" -- which the document did not prove.
Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why? In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an "unfortunate mix-up", he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.
In fact the case number proves nothing of the kind. Independent Newspapers originally wrote: "The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station." But investigating officer James Hills wrote in the information note: "During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention." Clearly this case number is associated with the "separate case". It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.
Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak. He said: "There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don't know what that piece of paper was about … As far as I know [the leak] is not being investigated from our side."
The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to "media reports …that the public protector is about to be arrested" and would announce the outcome.
Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report -- and why ministers then smothered the matter -- remain smouldering questions.
Source: Mail & Guardian
Madonsela's latest report found that a lease agreement between the public works department and businessman Roux Shabangu, for a headquarters building for the provincial South African Police Service in Durban, is invalid. In her previous report, released in February, she made similar findings about another police lease in Pretoria, also between public works and Shabangu.
Zuma has delayed acting on the Pretoria report, sending Justice Minister Jeff Radebe to negotiate for action to be taken only after the release of the latest report. Now it is time for the president to show to his backbone on the issue. Will he accept the findings and act decisively, or will he delay again?
The political ramifications of both options are significant. Madonsela's recommendations are stronger now, as they are bolstered by new evidence, and the political atmosphere has become charged by the furore that followed last week's media leak of the protector's "imminent arrest".
But if Zuma acts on her recommendations there could be unpleasant political consequences -- particularly if his role in the Shabangu leases was not benign. It is still not clear, for example, why Zuma sacked former public works minister Geoff Doidge, who was investigating the Shabangu deals.
And it is suspicious that Mahlangu-Nkabinde, Doidge's replacement, promptly suspended director general Siviwe Dongwana -- who was also investigating the deals -- and pushed the Pretoria lease through against senior legal opinion and despite her department's decision to suspend the lease.
Commenting on such suspicions, Madonsela said: "We could not find evidence of criminality. We could not explain why people behaved the way they did. The conduct of the police and the public works department was quite strange in trying to move regardless of the circumstances. But I can't make findings on the basis of a hunch. Their behaviour was strange." She said: "I am not prescribing what should be done, but I expect the president to do the right thing."
The biggest problem Madonsela has handed to Zuma is Mahlangu-Nkabinde, who refused to answer certain questions during the public protector's investigation. Madonsela said Mahlangu-Nkabinde's behaviour was improper and unlawful and the minister had "failed to meet the requisite of statesmanship expected from her". She urged Zuma to consider taking action against Mahlangu-Nkabinde. The minister should, within 60 days, "report to the Cabinet on her actions in relation to the procurement of the leases … and her failure to fully co-operate with the public protector".
Zuma will then have to deal with the Cele problem -- or publicly duck it. The commissioner once provided muscle for Zuma's rise to the presidency and is now rumoured to be part of a faction aiming to unseat him. Madonsela found Cele to be guilty of improper and unlawful conduct and maladministration. "The minister of police [Nathi Mthethwa] should, with the assistance of the national treasury, take urgent steps to ensure that the appropriate action is instituted against all the relevant officials of the SAPS," Madonsela said. These included Cele.
She also recommended that Mahlangu-Nkabinde take action against her errant officials, with the assistance of the treasury and the public service department. And while these steps were followed, Madonsela recommended that the police review their needs analysis for the accommodation of their provincial offices and the family violence, child protection and sexual offences units in Durban, which were to be housed in Shabangu's building.
The public works department should then follow proper procedures to help the police find suitable, cost-effective accommodation, as they are mandated to do. "The department of public works and the SAPS must ensure that appropriate measures are implemented to prevent a recurrence of contraventions of the relevant procurement legislation and prescripts," she said.
In both Durban and Pretoria Madonsela found that the lease agreements were invalid because their procurement had not complied with constitutional requirements and other regulations. In both cases she said the police -- Cele in particular, although he denies this -- had identified the buildings before involving the public works department, which is what they should have done. Public works then chose, irregularly, to deviate from open tender procedures, negotiating directly with Shabangu and settling on higher than market-value leases, which compromised the police's stretched operations budget. Shabangu contacted police and public works officials "and is alleged to have put pressure on them in regard to the finalisation of the procurement process".
Madonsela emphasised that there was no evidence of criminality in her investigation of Shabangu's role. "The argument presented by the department of finance was that since we could not conclude that Roux Property Fund [Shabangu's company] had got the leases because of fraud or through other illegal processes, we could not use the law to red-card him," she said. Little has changed in the protector's report compared with the draft that was leaked before she received the responses of those implicated. Looking at those responses -- now dealt with in the final report -- it is easy to understand why.
Commissioner Cele was at pains to point out that he did not invent the SAPS's need for a new lease. "On the contrary, there was a need to either relocate to a new building or construct one long before I came into this department in August 2009," he told the protector.
One of the main aspects of the provisional report disputed by Cele is that it was he who identified the Transnet building as alternative accommodation for police in Durban. But Madonsela says two of his subordinates -- Generals Hlela and Terblanche -- confirmed, independently of each other, that Cele had indeed instructed them to procure the lease of the Transnet building. She also points to an information note signed by Cele, dated June 28 last year, that apparently confirmed that the Transnet building was identified for leasing.
Cele points a finger at public works as the department responsible for managing the procurement process correctly. "The DPW is solely responsible for the unlawful conclusion of the lease agreement," he says.
Mahlangu-Nkabinde's version is contradicted by almost every other player in the leasing saga. According to Madonsela's report, the minister explained a mysterious increase in floor space needed by police -- which ended up being exactly what was on offer at Shabangu's building -- as being added "to accommodate for non-assignable areas, such as partitions, passages, toilets and common areas". "This explanation of the minister is, however, not in line with the needs analysis that was resubmitted by the SAPS," the protector noted.
The minister claimed that Doidge and his director general, Siviwe Dongwana, did not brief her properly. She denies instructing Dongwana to inform Shabangu's bankers that the transaction was proceeding. She refused to answer questions from the public protector, she claimed, because the report on the Pretoria lease showed that Madonsela had already made up her mind.
Shabangu denied applying undue pressure on public works officials, including the director general, or improperly influencing them in the procurement process relating to the Pretoria and Durban leases. He further denied ever meeting the minister outside her office. Asked to explain how he became aware of the SAPS's need for alternative accommodation in Durban, Shabangu indicated that he was informed that the office lease of the provincial police was due to expire and was provided with a "needs analysis" indicating the extent of the required alternative accommodation. It was because he was aware of the extent of the need for alternative accommodation in Durban that his company decided to buy the Transnet building.
But Madonsela noted: "Shabangu's above explanation is inconsistent with the documentary evidence obtained during the investigation, in terms of which it was found that the first needs analysis, reflecting the extent of the SAPS's need for alternative accommodation, was only submitted to the DPW on 23 June 2010. "However, the sale agreement for the Transnet building was concluded with Shabangu on behalf of [Roux Shabangu] on 19 March 2010, three months earlier." Ten days after Independent Newspapers claimed Thuli Madonsela faced imminent arrest for fraud and corruption there is no clarity on who was pushing the "investigation" and who leaked it. As the public backlash mounted, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa claimed the public protector was not being investigated.
Radebe cleared Madonsela of wrongdoing relating to work her company did for the justice department while she was a full-time South African Law Reform Commission member. President Jacob Zuma rushed to send out a statement of support. The newspaper group then produced "irrefutable proof" of its claims — an "information note" showing only that police were given insight, presumably by someone in the justice department, into a justice department file containing a September 2009 state law opinion on Madonsela's business interests. Police also apparently gave details of departmental payments to her company.
But, significantly, the note was directed to the Hawks's commercial crime head, Hans Meiring, which suggests senior police interest. The matter is also understood to have been drawn to Hawks boss Anwa Dramat's attention. "High-level sources" then leaked the document to a journalist, couched in claims of "imminent arrest" on "fraud and corruption charges" -- which the document did not prove.
Was there ever a police probe of Madonsela? Who was behind it? Was Independent Newspapers manipulated? By whom and why? In seeking to deny that there had been an investigation Hawks spokesperson Macintosh Polela made much of an apparent error in the case number refered to in the information note. It was all an "unfortunate mix-up", he said. The case number refered to a totally separate case ergo the note did not prove Madonsela had been investigated.
In fact the case number proves nothing of the kind. Independent Newspapers originally wrote: "The police stumbled upon information on Madonsela while investigating a separate case registered at the Pretoria Central Police Station." But investigating officer James Hills wrote in the information note: "During the investigation of Pretoria-Central CAS 515/01/2008 at the department of justice and constitutional development, the following came to my attention." Clearly this case number is associated with the "separate case". It was never intended either by the Independent Group or by Hill to refer to the Madonsela probe.
Polela used this confusion to cover the fact that Cabinet had made it politically difficult for police to come clean on the investigation and the leak. He said: "There was a mix-up when someone read a file for that case. It appears there was a piece of paper which mentioned Madonsela, but I don't know what that piece of paper was about … As far as I know [the leak] is not being investigated from our side."
The previous week police headquarters said the South African Police Service would launch a full investigation into the circumstances that led to "media reports …that the public protector is about to be arrested" and would announce the outcome.
Why the arrest claim was leaked days before the release of Madonsela’s second SAPS lease report -- and why ministers then smothered the matter -- remain smouldering questions.
Source: Mail & Guardian
Thuli Madonsela: A timeline
News reports about attacks on the Public Protector can be confusing. Why was she accused of fraud and who are her enemies? Use our timeline to make sense of the story.
October 2009
Advocate Thuli Madonsela is announced as South Africa's new Public Protector -- South Africa's third since 1994. She replaces Lawrence Mushwana, who had a dubious record in connection with the Oilgate scandal.
2 August 2010
Complaints are lodged by Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus with the Public Protector in connection with a Sunday Times report alleging improper procurement in the leasing of office accommodation for the South African Police Services (SAPS) in the Sanlam Middestad building in Pretoria and the Transnet Building in Durban. These complaints originated from a newspaper article published on August 1 2010 alleging improper conduct and maladministration by police National Commissioner Bheki Cele and the Department of Public Works (DPW). The combined value of the leases amounts to over R1.7bn and is entered into between the South African Police Service and controversial property vendor Roux Shabangu.
August 3 2010
Madonsela requests Cele and officials at DPW to cease with implementation of the said leases until an investigation into the matter is completed. It is confirmed the investigation would be undertaken in conjunction with Willie Hofmeyr's Special Investigation Unit (SIU).
4 August 2010
Journalist Mzilikazi wa Afrika is arrested for allegedly being in possession of a fake letter of resignation from Mpumalanga Premier David Mabuza. His arrest is widely seen as an attempt at intimidation relating to the original report appearing in the Sunday Times. He is held in Nelspruit for several days -- even after his case is thrown out of court.
October 11 2010
Director general at DPW, Siviwe Dongwana, informs Cele a new procurement process for the leasing of accommodation for the SAPS headquarters in Pretoria and Durban will be affected after an internal enquiry and independent legal advice deems the lease acquisitions to be invalid.
October 25 2010
Madonsela issues a preliminary report on the investigation, confirming her support for the new procurement process initiation.
October 31 2010
Gwen Mahlangu-Nkabinde replaces the former minister of public works, Geoff Doidge, in a Cabinet reshuffle by President Jacob Zuma.
November 11 2010
Mahlangu-Nkabinde announces, upon obtaining legal advice from the Office of the State Attorney on the lease agreement with regards to the Middestad building, that the lease is enforceable.
December 8 2010
DPW announces the suspension of Dongwana on charges in relation to insubordination, dereliction of duty, failure to discharge official duties and bringing the department into disrepute.
February 22 2011
Madonsela releases an initial report into the matter entitled: Against the Rules -- with specific reference to the Sanlam Middestad building in Pretoria. The report lists a number of irregularities in the leasing process.
March 2 2011
The offices of the Public Protector are visited by members of the SAPS crime intelligence unit, allegedly regarding Madonsela's investigations into Cele. Police later deny it was a raid.
March 10 2011
Madonsela announces she will not revisit findings in her report, despite being asked to do so by Mahlangu-Nkabinde.
June 10 2011
Mahlangu-Nkabinde announces a moratorium on all DPW tenders to "root out corruption". The move is slammed by the media and opposition parties and labeled as political opportunism.
June 17 2011
Shabangu calls a press briefing in Pretoria to "set the record straight" and defends the leasing deals, accusing "white capitalists" of accusing him of shady deals because he is a successful black businessman.
June 18 2011
Dongwana tells the media he feared for his safety and that of his family as he felt he was pressured into approving two lease deals.
June 21 2011
Mahlangu-Nkabinde announces her intention to take the matter regarding the leases to court to pronounce legality.
July 6 2011
A shock report is published by the Star newspaper about Madonsela’s imminent arrest on charges of alleged corruption during her tenure many years before as commissioner at the South African Law Reform Commission.
July 6 2011
The Star report is published the same day as a scheduled press briefing by Madonsela about the police leases and other matters. The report is criticised as a political ploy related to Madonsela's investigations into the leases. The protector vows to continue in her investigations into the leases.
July 7 2011
Justice and Constitutional Development Minister Jeff Radebe throws his weight behind Madonsela, announcing that she did not break any laws when her company offered services to the justice department while she worked for the South Africa Law Reform Commission. Police Minister Nathi Mthethwa also announces that he has no knowledge of an imminent arrest, after consulting with Cele, and the Zuma makes his support clear as well.
July 11 2011
It is confirmed that the head of the SIU, Willie Hofmeyr, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures in the awarding of a tender to refurbish SIU offices in Pretoria
July 14 2011
Madonsela releases a second report into the leasing scandal -- with specific reference to the Transnet building in Durban -- entitled: Against the rules too. The report finds serious fault with Mahlangu-Nkabinde and Cele during the acquisition and implementation of the leases and calls for serious remedial action. The pair are slammed for their lack of cooperation during the investigation.
July 15 to 17 2011
The weekend media announce the report as a watershed moment for Zuma, which will test his earlier support and possibly force him to take action.
July 18 2011
Cele announces a press briefing for July 19 to respond to findings by the Public Protector that his actions in connection with the two controversial building leases were unlawful, improper and constituted maladministration. The briefing is then postponed to July 21.
July 20 2011
Cele again cancels the press briefing, scheduled for the following day.
Source: Mail & Guardian
October 2009
Advocate Thuli Madonsela is announced as South Africa's new Public Protector -- South Africa's third since 1994. She replaces Lawrence Mushwana, who had a dubious record in connection with the Oilgate scandal.
M&G editor in chief Nic Dawes tells you everything you need to know about Public Protector Thuli Madonsela's report into police leasing deals. Will the president take action? What's next for Madonsela? Watch our video analysis and find out.
Complaints are lodged by Paul Hoffman of the Institute for Accountability in Southern Africa and Pieter Groenewald of the Freedom Front Plus with the Public Protector in connection with a Sunday Times report alleging improper procurement in the leasing of office accommodation for the South African Police Services (SAPS) in the Sanlam Middestad building in Pretoria and the Transnet Building in Durban. These complaints originated from a newspaper article published on August 1 2010 alleging improper conduct and maladministration by police National Commissioner Bheki Cele and the Department of Public Works (DPW). The combined value of the leases amounts to over R1.7bn and is entered into between the South African Police Service and controversial property vendor Roux Shabangu.
August 3 2010
Madonsela requests Cele and officials at DPW to cease with implementation of the said leases until an investigation into the matter is completed. It is confirmed the investigation would be undertaken in conjunction with Willie Hofmeyr's Special Investigation Unit (SIU).
4 August 2010
Journalist Mzilikazi wa Afrika is arrested for allegedly being in possession of a fake letter of resignation from Mpumalanga Premier David Mabuza. His arrest is widely seen as an attempt at intimidation relating to the original report appearing in the Sunday Times. He is held in Nelspruit for several days -- even after his case is thrown out of court.
October 11 2010
Director general at DPW, Siviwe Dongwana, informs Cele a new procurement process for the leasing of accommodation for the SAPS headquarters in Pretoria and Durban will be affected after an internal enquiry and independent legal advice deems the lease acquisitions to be invalid.
October 25 2010
Madonsela issues a preliminary report on the investigation, confirming her support for the new procurement process initiation.
October 31 2010
Gwen Mahlangu-Nkabinde replaces the former minister of public works, Geoff Doidge, in a Cabinet reshuffle by President Jacob Zuma.
November 11 2010
Mahlangu-Nkabinde announces, upon obtaining legal advice from the Office of the State Attorney on the lease agreement with regards to the Middestad building, that the lease is enforceable.
December 8 2010
DPW announces the suspension of Dongwana on charges in relation to insubordination, dereliction of duty, failure to discharge official duties and bringing the department into disrepute.
February 22 2011
Madonsela releases an initial report into the matter entitled: Against the Rules -- with specific reference to the Sanlam Middestad building in Pretoria. The report lists a number of irregularities in the leasing process.
March 2 2011
The offices of the Public Protector are visited by members of the SAPS crime intelligence unit, allegedly regarding Madonsela's investigations into Cele. Police later deny it was a raid.
March 10 2011
Madonsela announces she will not revisit findings in her report, despite being asked to do so by Mahlangu-Nkabinde.
June 10 2011
Mahlangu-Nkabinde announces a moratorium on all DPW tenders to "root out corruption". The move is slammed by the media and opposition parties and labeled as political opportunism.
June 17 2011
Shabangu calls a press briefing in Pretoria to "set the record straight" and defends the leasing deals, accusing "white capitalists" of accusing him of shady deals because he is a successful black businessman.
June 18 2011
Dongwana tells the media he feared for his safety and that of his family as he felt he was pressured into approving two lease deals.
June 21 2011
Mahlangu-Nkabinde announces her intention to take the matter regarding the leases to court to pronounce legality.
July 6 2011
A shock report is published by the Star newspaper about Madonsela’s imminent arrest on charges of alleged corruption during her tenure many years before as commissioner at the South African Law Reform Commission.
July 6 2011
The Star report is published the same day as a scheduled press briefing by Madonsela about the police leases and other matters. The report is criticised as a political ploy related to Madonsela's investigations into the leases. The protector vows to continue in her investigations into the leases.
July 7 2011
Justice and Constitutional Development Minister Jeff Radebe throws his weight behind Madonsela, announcing that she did not break any laws when her company offered services to the justice department while she worked for the South Africa Law Reform Commission. Police Minister Nathi Mthethwa also announces that he has no knowledge of an imminent arrest, after consulting with Cele, and the Zuma makes his support clear as well.
July 11 2011
It is confirmed that the head of the SIU, Willie Hofmeyr, is being investigated by the Serious Economic Offences Unit for reportedly flouting supply-chain and procurement procedures in the awarding of a tender to refurbish SIU offices in Pretoria
July 14 2011
Madonsela releases a second report into the leasing scandal -- with specific reference to the Transnet building in Durban -- entitled: Against the rules too. The report finds serious fault with Mahlangu-Nkabinde and Cele during the acquisition and implementation of the leases and calls for serious remedial action. The pair are slammed for their lack of cooperation during the investigation.
July 15 to 17 2011
The weekend media announce the report as a watershed moment for Zuma, which will test his earlier support and possibly force him to take action.
July 18 2011
Cele announces a press briefing for July 19 to respond to findings by the Public Protector that his actions in connection with the two controversial building leases were unlawful, improper and constituted maladministration. The briefing is then postponed to July 21.
July 20 2011
Cele again cancels the press briefing, scheduled for the following day.
Source: Mail & Guardian
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