The Public Protector is obliged to probe claims that PetroSA siphoned 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, theprotector 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 siphoning 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.
Source : Sapa /str/clh
Date : 31 Jul 2009 18:38
