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Legalbrief   |   your legal news hub Saturday 23 June 2018

Public Protector calls for ‘broad’ state capture probe

Public Protector Busisiwe Mkhwebane yesterday (Wednesday) welcomed President Jacob Zuma’s decision to establish a commission of inquiry into state capture and encouraged him to ensure the terms of reference were ‘broad’. A report on the IoL site notes Mkhwebane also said she would be available to assist with the development of the terms of reference if needed. Mkhwebane said that after she had ‘perused’ some of the information available, she called upon Zuma to ensure the terms of reference were ‘broad enough to include the capture of all state institutions and SOEs, so that the ability of the Commission to uncover the full extent of State Capture in South Africa is not constrained in any manner’. ‘In order to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the Office of the Public Protector, the Public Protector calls upon the President of RSA to ensure that the Terms of Reference (ToR) for the Commission of Inquiry are not limited to the issues investigated or identified in the State of Capture report,’ said Mkhwebane.

However, former Public Protector Thuli Madonsela says Deputy CJ Ray Zondo's commission of inquiry may only focus on state capture allegedly committed by the Zuma and Gupta families, notes a News24 report. It quotes Madonsela as saying: ‘I welcome the president’s announcement. It is two years too late, if you look at when the first whistle-blowing happened, and more than a year after I had asked him to establish a commission. But better late than never.’

Zuma’s son Duduzane and his friends the Gupta family are at the heart of the state capture allegations, notes a BusinessLIVE report. Zuma’s decision to appoint the commission follows the Public Protector’s investigation and remedial action regarding complaints and allegations of state of capture, as well as an order by the Gauteng High Court (Pretoria). The report says the decision is an about-turn for Zuma, who had initially announced that he would appeal the judgment, going against a resolution by the ANC conference that the judicial commission of inquiry must be appointed in line with the remedial action given by the Public Protector in the State of Capture report.

Madonsela told Radio 702 that she was ‘encouraged by the decision’ and that it was ‘better late than never’. A Daily Maverick report is of the view Zuma humbled himself in his statement, saying: ‘The allegations that the state has been wrestled out of the hands of its real owners, the people of South Africa, is of paramount importance and are therefore deserving of finality and certainty.’ The report points out that whereas only six months ago his supporters at the ANC’s policy conference fought against the use of the term ‘state capture’, referring specifically to the alleged corrupt dealings between Zuma and his friends in business, the Gupta family, Zuma in the statement said the issue ‘is of such serious public concern that any further delay will make the public doubt government’s determination to dismantle all forms of corruption, and entrench the public perception that the state has been captured by private interests for nefarious and self-enrichment purposes’. The DM says this sounds 'a bit unlike Zuma', but adds it’s not the first time that he’s executed surprising manoeuvres in this case. In October he abandoned the part of his notice of motion, asking that the report be sent back to the Public Protector for further investigation in order to make findings of fact. The judgment in this case came shortly before the ANC’s conference last month, and Zuma indicated he would appeal the cost order as well as the order regarding the duties of the President to appoint commissions of inquiry in terms of section 84 of the Constitution. The conference subsequently went on to resolve that the judicial commission of inquiry should be appointed in line with the remedial action given by Madonsela. Zuma’s announcement is an apparent attempt to comply and neutralise this as possible ammunition to be used against him, suggests the DM.

Zondo has a history of integrity and ethical behaviour in the legal profession, HuffPost SA reports. Zondo's 20-year career in courts, the article says, has been mostly scandal-free save for questions being raised in Parliament in 2007 about his R1.2m transport and living allowances over a five-year period. Zondo has been criticised for taking too long to deliver judgments, with a GCB report saying some judgments were delivered more than 12 months after appeals were argued. The report, however, also described Zondo as having 'displayed a firm commitment to advancing the cause of a constitutional state founded on constitutional principles'. Zondo, who grew up in impoverished conditions in KZN, served as Judge President of the Labour Appeal Court and the Labour Court in 2000, a position he served in for 10 years. He was chosen by President Jacob Zuma in 2017 to replace the retired Dikgang Moseneke as deputy CJ.