Oilgate: Judge criticises public protector

The Public Protector is obliged to probe claims that PetroSA syphoned State money to the ANC via a private company, the High Court in Pretoria has ruled.

Some 20 months after hearing an application by the Mail&Guardian (M&G) newspaper, Judge Ntsikelelo Poswa set aside the 2005 report on the so-called Oilgate scandal by Public Protector Lawrence Mushwana.

In his ruling, made on Thursday, Poswa ordered a re-investigation into complaints lodged by the newspaper.

The full judgment, a 154-page document, was released on Friday.

Poswa criticised the protector for refusing to investigate certain allegations and drawing conclusions without launching a proper probe.

The judge said although he could not conclude the inadequacy of the investigation was because the protector wanted to shield the ANC, the protector had misconstrued his obligations.

The protector contended he was not entitled to investigate many of the transactions that formed the basis of the Oilgate scandal, as these payments were not out of "public funds" and were made between "private entities".

The protector also found that he was not entitled to investigate the relationship between the ANC and the private company Imvume, which was central to allegations of impropriety.

The protector's report arose from a series of M&G articles which alleged that Imvume and its chief executive officer Sandi Majali manipulated the United Nation's (UN) oil-for-food programme to obtain lucrative contracts for Iraqi oil with the support of high-ranking ANC and government officials.

This was allegedly on the understanding that it would benefit the ANC and that the ANC would use its position to oppose sanctions against Iraq on the international plane.

Many of the M&G allegations were also contained in a UN committee report, which according to the judge depicted South Africa as "a corrupt country, with a corrupt president, a corrupt department, corrupt Cabinet, ministers and senior officials, and a corrupt ANC".

Poswa said even if the protector had not been aware of the UN reports, he had adequate information before him which was sufficiently damning to the government, the ministers and senior officials and the ANC to merit serious attention.

"Although the ANC is not, in itself, part of the government, the respondent must have been aware that the then Cabinet ministers implicated by the Mail&Guardian articles were members of the ANC.

"The respondent (Public Protector) therefore owed it to all these interested groups to investigate complaints that cast them in a very poor light.

"... In the current matter, the very basis on which PetroSA made payment to Imvume was challenged by the applicants, contending that it was an improper syphoning of State funds from PetroSA to the ANC, via Imvume.

"Seeing that these are State funds, the respondent was obliged to investigate the complaint.

"... I am of the view that the respondent's decision that the investigation in respect of the conduct and affairs of Imvume Management and of the ANC is beyond his powers and his finding that the payment by Imvume of R11-million to the ANC, R50 000 to Uluntu Investments and R65 000 to Hartcon Construction (shortly after receiving an advance payment of R15m from PetroSA), were appropriate, are incorrect.

"The explanation given as to why PetroSA was reluctant to file for Imvume's sequestration is that it is, in principle, opposed to having [black economic empowerment] companies sequestrated.

"Whilst this may well be a true explanation for that omission, it seems to me that the respondent was called upon to do more, by way of investigation, to determine whether or not the reason might not be that Imvume was, indeed, formed in order to be used as a conduit of funds from PetroSA to the ANC.

"... A further question that arises... is how Imvume could, in the very difficult financial circumstances that it was obviously in, have afforded to pay R11m, as a donation, to the ANC, R50 000 to Uluntu Investments and R65 000 to Hartcon Construction," the judge said.

Poswa said the protector would have come across quite a substantial portion of information if he had made further investigations.

He found it disturbing that the protector had, even after obtaining the information, continued to oppose the application, rather than offer to re-investigate the complaints.

"The allegation that South Africa is part of a group of dishonourable countries that are involved in the manipulation of the Oil-for-Food programme, with the use of improper stratagems, is damning to the otherwise high esteem with which South Africa is generally known to be held in the word.

"The respondent, as Public Protector, is duty-bound to protect the country's image, including its government, Cabinet ministers and senior officials of the various departments implicated.

"To the extent that the ANC is a party from which almost all the Cabinet ministers originated, including the then Minister of Minerals and Energy [Phumzile Mlambo-Ngcuka] and the Minister of Social Development [Dr Zola Skweyiya], makes it essential... in the public interest, for the respondent to clear its name, if it is improperly accused of underhand practices," Poswa said. - Sapa

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Lycanthrope said:

*oozes with sarcasm*

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The Supreme Court of Appeals (SCA) on Wednesday dismissed an appeal by the Public Protector against an order of the North Gauteng High Court setting aside its report into the so-called Oilgate matter.

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The newspaper went to the high court asking that the Oilgate matter be reinvestigated, after the protector's report found no impropriety on the part of various parties implicated in the scandal. The high court set aside the report.

The SCA held that matters referred to the protector were not probed at all, and found the investigation was so scant it amounted to no investigation at all.

The SCA said the minimum requirement for an investigation of any kind was approaching the matter with an open and enquiring mind.

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The Public Protector must not only discover the truth but must also inspire confidence that the truth has been discovered. It is no less important for the public to be assured that there has been no malfeasance or impropriety in public life, if there has not been, as it is for malfeasance and impropriety to be exposed where it exists. There is no justification for saying to the public that it must simply accept that there has not been conduct of that kind only because evidence has not been advanced that proves the contrary. Before the Public Protector assures the public that there has not been such conduct he or she must be sure that it has not occurred. And if corroboration is required before he or she can be sure then corroboration must necessarily be found. The function of the Public Protector is as much about public confidence that the truth has been discovered as it is about discovering the truth

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That state of mind is one that is open to all possibilities and reflects upon whether the truth has been told. It is not one that is unduly suspicious but it is also not one that is unduly believing. It asks whether the pieces that have been presented fit into place. If at first they do not then it asks questions and seeks out information until they do. It is also not a state of mind that remains static. If the pieces remain out of place after further enquiry then it might progress to being a suspicious mind. And if the pieces still do not fit then it might progress to conviction that there is deceit. How it progresses will vary with the exigencies of the particular case. One question might lead to another, and that question to yet another, and so it might go on. But whatever the state of mind that is finally reached, it must always start out as one that is open and enquiring

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Truth and deceit know no status or occupation. One expects integrity from high office but experience shows that at times it is not there. And while experience shows that journalists can be cavalier there are times when they are not. It is the material that determines the veracity of the speaker and not the other way round, and that applies universally across status and occupation. It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all. The investigator is then no more than a spokesman, who adds his or her imprimatur to what has been said, which is all that really occurred in this case. I have said before that an investigation calls for an open and enquiring mind. There is no evidence of that state of mind in this investigation.

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