Public Protector Lawrence Mushwana has cleared Minister of Defence Mosiuoa Lekota of a charge that his undeclared business interests exposed him to a conflict of interests, leading President Thabo Mbeki to close the book on the matter.

But questions remain about Mushwana's narrow interpretation of the Executive Ethics Code; an interpretation that contributed to his decision on Lekota.

The Mail and Guardian first exposed Lekota's interests in a fuel distributorship and wine businesses in May. Lekota had not declared these either to Parliament or to the Cabinet, as required by law.

Lekota, who readily admitted the non-disclosure but ascribed it to an oversight, was subsequently docked a week's salary by Parliament and fined R5 000 by his party, the African National Congress. Both reprimanded him.

But that all related to his non-disclosure to Parliament only. Ministers are subject to the further duty to declare the same interests to Cabinet under the Executive Members' Ethics Act and its Executive Ethics Code. The public protector is charged by law to investigate any complaint relating to a breach of the code, and refer it to the president for possible action.

When Mbeki laid no complaint with the public protector, Democratic Alliance chief whip Douglas Gibson did. Mushwana last month forwarded his report to Mbeki, who submitted it to Parliament this week. Mbeki recommended no further sanction, saying Lekota had already been punished by Parliament.

Two aspects of Mushwana's findings and Mbeki's decision are controversial.

Mushwana finds, on Lekota's non-disclosure, that since "the mischief that the Parliamentary Ethics Code [under which Parliament sanctioned the minister] seeks to prevent … is the same as that which the Executive Ethics Code seeks to prevent … it [is] unnecessary to deal with this matter again."

Mushwana argued against a second punishment, saying it could not have been the intention that a minister who contravenes both codes should be sanctioned twice. Mbeki accepted this.

This week Gibson said: "Cabinet members have a far higher obligation than ordinary Members of Parliament." The earlier parliamentary sanction did not take account of this, and was not enough, he argued.

The second focus of Mushwana's probe was whether Lekota's business interests had exposed him to a potential conflict of interest. The M&G exposé had carried quotes from James Bell, one of Lekota's then co-directors in fuel distributorship BZL Petroleum, about a bid to win a contract from parastatal Transnet, and also about the company's interest in acquiring contracts from Lekota's Department of Defence.

Mushwana's report says Lekota submitted an affidavit from another BZL director stating that "BZL never aspired to get orders from the government or any government department" and that BZL "does not do business with any state-related company".

That affidavit contradicts what Bell had said about aspiring to a defence contract, and skirts the issue of whether a Transnet contract had been sought (as opposed to obtained).

Mushwana seems to have accepted this and other reassurances from Lekota. On the wider question, whether Lekota's business interests could not have been in conflict with his Cabinet duties, Mushwana took a narrow view of the rules.

Among the issues at stake was the fact that BZL is a distributor of oil giant Caltex. As a member of Cabinet Lekota may have had to contribute to decisions affecting oil companies in general, if not Caltex specifically.

The Executive Ethics Code states that "where a member holds any financial or business interest … which may give rise to a conflict of interest in the performance of that member's functions as a member of the executive, that member must … dispose of such interest or place the administration of the interest under the control of an independent and professional person or agency". Lekota had done neither of these.

But Mushwana interpreted "functions as a member of the executive" to mean only Lekota's duties as defence minister, not his general duties as a member of Cabinet. This helped Mushwana reach the conclusion that Lekota's financial interests "do not pose a potential threat of a conflict of interest arising".

Had Mushwana used a wider interpretation, he might well have been forced to conclude that the potential for a conflict of interest had been present whenever Lekota attended a Cabinet meeting.

This would have been a more serious breach than non-disclosure, but Lekota has been let off the hook.

With acknowledgements to Stefaans Brümmer, Marianne Merten and the Mail and Guardian.