This, after Democratic Alliance parliamentary leader Lindiwe Mazibuko was informed by Nxesi’s department that there was no difference between the January 2013 report she sought and the report released in December 2013.
This information effectively made the matter moot.
Mazibuko last year requested the disclosure of the public works task team report on security upgrades to President Jacob Zuma’s private home in Nkandla.
She first tried to gain access to the January 2013 report in terms of the Promotion of Access to Information Act (Paia), but was rejected. She then turned to the Western Cape High Court, which ruled in October that the DA’s bid for the report to be released was indeed urgent.
In December, Cabinet resolved to release the report and held a media briefing. Mazibuko said at the time that the DA was not satisfied the document released was the actual report.
She said it appeared it had been re-written in a way that hid the nature and extent of any exclusions of sensitive security aspects of the upgrade.
At the time, Nxesi said the reason for classifying the report as top secret was because exclusions were made in terms of the “nature and location of the bullet proof windows and the safe haven”.
In a further affidavit filed on Friday, Mazibuko said she had received an affidavit from Nxesi’s special adviser Phillip Masilo with a “shocking” revelation that the December 19 report was in fact the January 13 task team report and had not been altered in any respect.
Mazibuko said this disclosure led her to conclude Nxesi had misrepresented the report to the public.
“In truth, there never was any lawful basis to classify the report as top secret… In light of what Masilo has revealed, the minister abused the government’s national security protections,” she said in the affidavit.
“As I pointed out in my replying affidavit, seeking to shield the president from political embarrassment is not a matter of national security which justifies a top secret classification.”
She said the department’s director-general, listed as the second respondent, had no legal basis to ignore her Paia request.
“The respondents now claim that this matter is moot. They however do not concede that the conduct of the minister and the director general was unlawful and invalid,” Mazibuko said.
In her affidavit she asks the court to declare the conduct as such so the respondents would know how to deal lawfully with such a Paia request in future.
She said she was entitled to the costs of the application. In court on Tuesday, her legal team handed up a draft order agreed to by both parties, in which Nxesi and his director general would pay Mazibuko’s costs, including those incurred at hearings in October last year and on Tuesday.
The draft order states: “Given the release into the public domain of the task team report, no order is made in respect of the remaining prayers in the notice of motion”.
Judge Jeanette Traverso finalised the order.