The Minister of Public Works, Gwen Mahlangu-Nkabinde, has at long last done the right thing by taking the putative leases in respect of the Police headquarters in Pretoria and Durban to court to have them declared invalid.

Her explanations for the delay are underwhelming, if not disingenuous. Her attempts to shift the blame for the falling around that has gone on is inexcusable.

In any accountable system of governance which is  worthy of the name, she would be required to fall on her sword for even considering sipping at the poisoned chalice which she complains was passed her way and from which she has drunk deeply.

It is necessary to take a cold look at the undisputed facts in order to show that the protestations of injured innocence emanating from the Minister are not worthy of credence and are in fact a tacit acknowledgement of her responsibility and culpability in the matter.

It is true that she was not Minister at the time that the putative leases were negotiated. This is no excuse. Her predecessor, now ambassador to Sri Lanka, has let it be known that all of his attempts to brief his successor on the state of play in the department, under investigation by the Office of the Public Protector at the time of transition between ministers, proved fruitless.

From what is now acknowledged, it seems that there was a lot a material that required a thorough discussion at the time of handing over of the portfolio of Public Works on 31 October, 2010.

Among the documents lurking on the ministerial desk was an opinion dated 1 September, 2010 the bottom line of which read: "In the circumstances we advise the Department to institute an urgent High Court application seeking ... an order declaring that the lease agreement is invalid"

This opinion was furnished after an internal inquiry into the Pretoria  SAPS headquarters lease was conducted and advice was sought from Advocate Ismail Jaimie SC of the Cape Bar, assisted by his learned junior Ron Paschke. The opinion is carefully considered and impeccably reasoned. It is quite obviously correct.

No trouble to the new Minister, she takes less than eleven days in office to extract from the long suffering State Attorney a letter which says, inter alia:

"Based on the information provided and the documents submitted, we are of the opinion that a binding, valid and enforceable lease has been concluded... You have requested that we in any event obtain the opinion of counsel"

By 22 November the second opinion of counsel, this time Pat Ellis SC of the Pretoria Bar, was obtained. His opinion, also thoroughly considered, confirms the previous advice from counsel and concludes that: "[the lease] is unlawful and therefore invalid".

No trouble to the Minister. Faced with these two carefully considered opinions from senior counsel at opposite ends of the country, both confirming the invalidity of the lease in question, she goes public on 7 December 2010 with a statement saying: "We took advice from the State attorneys (sic) and realised that we had to honour this legal agreement or else we would be sued for the same amount and more in the courts."

This, in the light of the two opinions of senior counsel, is palpable balderdash. Now, the Minister is putting it about that she did not approve this lease. What does she suppose "we had to honour this legal agreement" actually means?

So as to add insult to injury, the acting Director General of her department tells the Public Protector on the following day, by letter dated 8 December 2010: "Currently the department has proceeded to implement the lease agreement"

When asked by the Public Protector why the considered and separate opinions of two senior counsel were ignored in breach of the fiduciary duties and requirements of good governance in terms of the Public Finance Management Act, the Minister, having preferred to latch on to the superficial and obviously prima facie view of the State Attorney, which contemplated the obtaining of counsel's opinion, does not respond in any shape or form.

In these circumstances the Minister herself has behaved unaccountably and irresponsibly. At no stage has she even attempted to justify the expenditure of more that three times the going rate in respect of the agreed rental of the police headquarters. This won't do.

It is tedious to cover the same ground in respect of the Durban negotiations. The tale is in all material respects indistinguishable in law and in fact. Only the timing and the building are different.

The Minister should reflect on her own role in this fiasco. The provisions of the Constitution, which she is sworn to uphold as part of her oath of office are clear and unambiguous. Section 217 reads as follows: "When an organ of state in the national, provincial or local sphere of government, or any other institution identified in national legislation, contracts for good or services, it must do so in accordance with a system which is fair, equitable, transparent, competitive and cost-effective."

The cosy arrangements made with the prospective landlord do not measure up to any of the criteria of the Constitution. Conduct which is inconsistent with the Constitution is invalid. Section 2 reads: "This Constitution is the supreme law of the Republic; law or conduct that is inconsistent with it is invalid, and the obligations imposed by it must be fulfilled."

The Minister should resign instead of attempting to play the role of the victim of what she calls "a poisoned chalice", and if she won't, the President ought to fire her. No cabinet in the world can function accountably when it has a member who comports herself in the manner in which the Minister has done on the facts set out above, all of which are out of her own mouth or that of the department for which she is in law responsible.

Her attempts at spin and bluster are reprehensible and transparently overlook or ignore the pertinent facts. Her failure to accept the advice of two senior counsel is inexcusable, especially as the advice she chose to accept instead is obviously of a superficial nature and is expressly given subject to the obtaining of an opinion from independent counsel.

What can possibly be the point of obtaining the advice of senior counsel if it is conveniently ignored in favour of proceeding with questionable deals on the basis of palpably provisional advice, given on a prima facie basis and made dependent upon the obtained of further more considered advice?

The world of perceptions is confined to politics; the world of facts, legal consequences and accountability is objectively determinable in accordance with the rule of law and the Constitution. The Minister has been found wanting. She should go quietly.

Crying foul and pointing to poisoned chalices at which she says she has  unadvisedly sipped won't wash. The attempt to do so is an embarrassment to the cabinet as a whole; it tarnishes the image of the executive and is intolerable in the type of constitutional order which the President described so glowingly, with reference to SA, when he spoke in New York earlier this week.

Paul Hoffman SC is a director of Ifaisa. (www.ifaisa.org).

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