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Cape Town - IEC chairwoman Pansy Tlakula has challenged the legality and findings of the Public Protector's investigation into her role in procuring headquarters for the electoral commission.
In a 55-page response to the report, Tlakula claimed that Public Protector Thuli Madonsela did not have the power to investigate the allegations of maladministration, or to refer the matter to the Speaker of the National Assembly, as she had, or to the president.
The document was handed to an ad hoc parliamentary committee considering Madonsela's report, and was leaked to the media.
Madonsela found Tlakula's role in concluding a R320 million lease contract for a new head office for the Independent Electoral Commission (IEC) in Centurion was improper and constituted maladministration.
However, Tlakula said neither the legislature nor the president had any authority to deal with the conduct of the chief electoral commissioner, which is the position she held at the time the contract was signed.
"There is no legislation invoking the Speaker of Parliament or the president in allegations of improper conduct by the chief electoral officer," she said in the document.
She said the Public Protector Act gave Madonsela the power to investigate maladministration on the part of government, but that although the IEC was an organ of state it "does not form part of government".
Furthermore, Madonsela had failed to observe the law by not giving her the right to reply before decisions were made on integral parts of the investigation, she charged.
She said she was not given a chance to respond to allegations that she had a romantic relationship with the chairman of parliament's finance portfolio committee, Thaba Mufamadi, who was a shareholder in the company that owned the Riverside building rented to the IEC.
"The investigation by the office of the Public Protector in this instance was fraught with numerous procedural and substantive irregularities," she wrote.
However, in her final report Madonsela noted only Tlakula's "special business relationship" with Mufamadi, which consisted of them being co-directors in Lehotsa Holdings, and said nothing tangible supported claims of a romantic involvement.
Tlakula's submission repeats much of her initial reaction to Madonsela's report, in which she also accused the Public Protector of exceeding her powers.
Madonsela at the time termed the claim "saddening".
The ad hoc committee has sought legal advice on how to deal with the unprecedented matter, which is raising concerns about the stability of the IEC some six months before the next national elections.
Committee chairman Luwellyn Landers said on Monday the committee was still waiting for a report from Parliament's legal adviser and was likely to meet again only next week.
Landers said he regretted the leak, and had assured Tlakula that he had distributed the document only to MPs serving on the committee.
The committee gave the legal adviser a seven-day deadline to provide an opinion, which Landers described as "somewhat elastic" and which has lapsed.
Democratic Alliance MP James Selfe, who sits on the committee, said the case raised difficult legal issues, including how to deal with a report pitting two chapter nine institutions against each other.
Another question confronting the committee is whether Parliament has the power to overrule Madonsela's report, which recommended that the Speaker consider, in consultation with the electoral commission, whether action should be taken against Tlakula, and make a recommendation in this regard to the president.
Madonsela has explained that the reason for referring the matter to the Speaker was that both the IEC and her office report to him on administrative matters.
Constitutional law expert Pierre de Vos has weighed in on the matter and faulted Madonsela for not referring it directly to the Electoral Court. He said Parliament could deal with it only on referral by the court.