9 November 2013
Clarification on the cluster’s decision to seek relief through the courts to postpone the release of the Public Protectors interim report on the security upgrades in Nkandla.
Security Cluster Ministers, Hon. Minister Jeff Radebe, Minister of Justice and Constitutional Development and Hon. Minister Siyabonga Cwele, Minister of State Security.
The Justice, Crime Prevention and Security Cluster (JCPS) finds it necessary to explain the context around approaching the courts to seek relief on the release of the Public Protector’s provisional report without the comments from the JCPS cluster which the Public Protector herself had requested.
The Public Protector occupies an important office in our constitutional democracy. As members of the executive, we wish to reinstate our respect to the office of the Public Protector and we fully support its constitutional mandate. Therefore- the importance to cooperate with the office as we have always done.
All organs of state have an obligation to uphold and maintain national security as derived from our constitution, various legislations and policies.
In a letter dated the 1st of November 2013, from the Public Protector to the Minister of Public Works Hon Thulas Nxesi, the Public Protector, stated,” The purpose of presenting it to you at this stage is solely to provide you with an opportunity to raise any matter in the report which in your view could have an impact on or could compromise the security of the President and should therefore be omitted”.
In line with this request, the Security Cluster, in order to fully comply with its mandate, wishes to study the contents of the report to ensure that certain information contained in the report does not compromise national security; and in areas where this is potentially the case, propose remedial measures as requested by the Public Protector.
Given the importance of the processes that led to the compiling of the provisional report, as well as the report itself; we find the time given to the Security Cluster to respond to the report’s contents; to be wholly insufficient. Hence the need to approach the courts for interim relief.
1. The provisional report produced by the Public Protector investigating allegations of misconduct to the installation and implementation of security measures at the residence of President Jacob Zuma in Nkandla is a document of 357 pages, which contains matters relating to national security and security of the President as the Head of State.
2. The Public Protector has spent a significant amount of time, close to a year, investigating this matter and working towards its conclusion.
3. In providing us the opportunity to comment on the provisional report before it is released to other affected, implicated and interested parties, the Public Protector recognises the legal obligation to ensure that the provisional report does not compromise national security and the security of the President as the Head of State.
4. In this regard, it is critically important that the security cluster is afforded sufficient and reasonable time to study the report and provide comments on sections that may be of security concern. However, the Public Protector has, in our view, unreasonably denied us the opportunity to properly engage the report as requested by the Public Protector.
5. On the 1st of November, 2013, the Ministers in the security cluster received the provisional report from the Office of the Public Protector, with the letter stating the 6th of November, 2013, as the deadline for comment- effectively giving the security cluster only 3 working days to study the report and give comment.
6. On the 4th of November, 2013, the Minister of Public Works requested an extension of time to submit written comments by the 15th of November, 2013, which would have afforded us 10 working days.
7. On the 5th of November, 2013, the Public Protector declined the request and granted an extension of two days, giving the security cluster until the 8th of November, 2013 to respond. The Public Protector went on to state that she will proceed to release the provisional report on Saturday the 9th of November,2013 regardless of whether she receives our comments or not.
8. On the 6th of November, 2013, we noted media reports, quoting the Public Protector confirming the release date of the provisional report as that of 9th of November, 2013.
9. On the 7th of November, 2013, another request was made to the Public Protector to grant a deadline extension to the 15th of November, 2013, to which the Public Protector did not respond.
10. At this stage it became clear that the Public Protector was neither willing nor able to grant our request for a deadline extension and that we were left with no choice but to seek the intervention of the courts.
11. It must be emphasised that government has no intention or interest in undermining the work of the Public Protector.
12. On the contrary, government has consistently and transparently engaged on the matter following a probe that was conducted by government whose findings were announced to the public in January of this year.
13. It is important to state that, after the Public Protector received our court papers, she requested a postponement to respond to the application on the 15th of November 2013.
14. We welcome the court order and the undertaking by the Public Protector not release provisional report until the matter is finalised.
15. All we were requesting is reasonable time to study, analyse and give comment to the report which we are currently doing.
I thank you.