Public Works director general Mziwonke Dlabantu is accused of lying under oath and is not to be trusted with producing all existing Nkandla-related documents, the High Court in Pretoria was told.
The submission was made on behalf of the Mail&Guardian centre for investigative journalism (amaBhungane).
It has sought an order forcing Public Works Minister Thulas Nxesi and Dlabantu to give it access to all records relating to the R210 million refurbishment of President Jacob Zuma's homestead in Nkandla, KwaZulu-Natal.
In 2012, the department refused the centre any access to the information it requested under the Promotion of Access to Information Act (PAIA), on the grounds of security concerns.
In June, after the centre brought a court application and documents had been exchanged, the department sent it more than 12,000 pages of information.
When more documents were requested, some were supplied, but the department now insisted that every single relevant document, apart from three which were security-sensitive, had been handed over and that no further documentation existed.
Wim Trengove SC, for the centre, argued that the matter should be referred for oral evidence, because the department had not been honest about the documents.
He said it was clear that no documents pertaining to meetings, deliberations and decisions at the top level of the department had been produced.
"The director general has lied on oath and failed to give an adequate response," he said.
"Now they fight tooth-and-nail to keep the search out of head office. Even their own documents show there are documents missing. It is clear there has been no effort to find the top level documents at all.
"If the director general had done an honest job, the first thing he would have done was to look in the obvious place. They had six opportunities to do so and they did not.
"If you don't even look in the obvious place there's reason for doubt and if you have a dishonest man in charge of the search it's hopeless and we can't trust him," Trengove said.
Danny Berger SC, for the minister and director general, argued that the centre was seeking "an open-ended commission of inquiry" which would seek to uncover documents beyond those originally requested.
"What would be achieved by a referral [to oral evidence]?" he asked.
"It would be an opportunity to turn the Nkandla saga into an inquiry where there would be an attempt to embarrass the minister and the director general," he contended.
Berger argued that an "exhaustive search" had been conducted, and that every existing document had been handed over.
"It's not possible to squeeze any further documents out of the respondents," he said.
The SA History Archive Trust (SAHA) and the University of Cape Town's Democratic Governance and Rights unit also presented legal argument in the case.
Jason Brickhill argued on behalf of SAHA that a culture of secrecy existed in South African public bodies.
This had a permeating effect and, without intervention, would continue to act as a wall between the government and the general public, he said.
"Requests are generally only considered once there is a threat of litigation or an appeal. Requests are routinely met with an initial knee-jerk, unreflective refusal, generally without adequate reasons," he said.
"Refusal is eventually withdrawn when litigation is instituted.
"This culture frustrates the legislative scheme envisaged in PAIA."
Brickhill said that of 159 requests for information from various public and private bodies last year, 102 were refused or simply received no answer.
Of 11 PAIA requests directed at the office of the presidency, 10 were refused.
He also expressed concern about the department's contention that some documents could not be found because they had been lost, or that no record was ever kept of meetings, discussions or instructions issued by government officials.
"On its own version, the department's conduct reflects a failure to generate records and a failure or record-keeping and management," he said.
He submitted that, apart from failing to comply with the Constitution and a wide range of legislation, such practices impoverished the historical record that was legally required to be maintained in the national archives.
Susannah Cowen, for UCT, argued that this could well be a case where openness and accountability could protect, rather than endanger, the security of the state.
She warned that the courts had to carefully scrutinise security claims, because they could be abused and used to subvert democracy.
Judge Vuyelwa Tlhapi reserved judgment.
Public works DG 'not to be trusted: court
Public Works director general Mziwonke Dlabantu is accused of lying under oath and is not to be trusted with producing all existing Nkandla-related documents, the High Court in Pretoria was told.
The submission was made on behalf of the Mail&Guardian centre for investigative journalism (amaBhungane).
It has sought an order forcing Public Works Minister Thulas Nxesi and Dlabantu to give it access to all records relating to the R210 million refurbishment of President Jacob Zuma's homestead in Nkandla, KwaZulu-Natal.
In 2012, the department refused the centre any access to the information it requested under the Promotion of Access to Information Act (PAIA), on the grounds of security concerns.
In June, after the centre brought a court application and documents had been exchanged, the department sent it more than 12,000 pages of information.
When more documents were requested, some were supplied, but the department now insisted that every single relevant document, apart from three which were security-sensitive, had been handed over and that no further documentation existed.
Wim Trengove SC, for the centre, argued that the matter should be referred for oral evidence, because the department had not been honest about the documents.
He said it was clear that no documents pertaining to meetings, deliberations and decisions at the top level of the department had been produced.
"The director general has lied on oath and failed to give an adequate response," he said.
"Now they fight tooth-and-nail to keep the search out of head office. Even their own documents show there are documents missing. It is clear there has been no effort to find the top level documents at all.
"If the director general had done an honest job, the first thing he would have done was to look in the obvious place. They had six opportunities to do so and they did not.
"If you don't even look in the obvious place there's reason for doubt and if you have a dishonest man in charge of the search it's hopeless and we can't trust him," Trengove said.
Danny Berger SC, for the minister and director general, argued that the centre was seeking "an open-ended commission of inquiry" which would seek to uncover documents beyond those originally requested.
"What would be achieved by a referral [to oral evidence]?" he asked.
"It would be an opportunity to turn the Nkandla saga into an inquiry where there would be an attempt to embarrass the minister and the director general," he contended.
Berger argued that an "exhaustive search" had been conducted, and that every existing document had been handed over.
"It's not possible to squeeze any further documents out of the respondents," he said.
The SA History Archive Trust (SAHA) and the University of Cape Town's Democratic Governance and Rights unit also presented legal argument in the case.
Jason Brickhill argued on behalf of SAHA that a culture of secrecy existed in South African public bodies.
This had a permeating effect and, without intervention, would continue to act as a wall between the government and the general public, he said.
"Requests are generally only considered once there is a threat of litigation or an appeal. Requests are routinely met with an initial knee-jerk, unreflective refusal, generally without adequate reasons," he said.
"Refusal is eventually withdrawn when litigation is instituted.
"This culture frustrates the legislative scheme envisaged in PAIA."
Brickhill said that of 159 requests for information from various public and private bodies last year, 102 were refused or simply received no answer.
Of 11 PAIA requests directed at the office of the presidency, 10 were refused.
He also expressed concern about the department's contention that some documents could not be found because they had been lost, or that no record was ever kept of meetings, discussions or instructions issued by government officials.
"On its own version, the department's conduct reflects a failure to generate records and a failure or record-keeping and management," he said.
He submitted that, apart from failing to comply with the Constitution and a wide range of legislation, such practices impoverished the historical record that was legally required to be maintained in the national archives.
Susannah Cowen, for UCT, argued that this could well be a case where openness and accountability could protect, rather than endanger, the security of the state.
She warned that the courts had to carefully scrutinise security claims, because they could be abused and used to subvert democracy.
Judge Vuyelwa Tlhapi reserved judgment.
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