By Pinky Khoabane
If The state capture report wasnt a document to be taken seriously, in terms of its impact on the way in which business is done and how narrow an investigation can be undertaken to suit the interests of those with influence, it would read like fiction.
The document is over 300 pages and I know there will be many who wont even bother reading it. I have therefore decided to pick excerpts of it so that you, our reader, can glance somewhat into it. Bear in mind that we will give excerpts that you wont read in commercial media.
I was fascinated by the exchanges between President Jacob Zuma and former Public Protector, Thuli Madonsela, regarding his right to question Madonsela’s interviewees. This became a stumbling block which led to the case to interdict and withdrawal thereof.
If there are lawyers out there, kindly let us know what the law states in terms of some of the issues raised by both the former PP and the president.
Legal interactions between myself and persons implicated in the investigation President Zuma
- On 22 March 2016 I wrote to President Zuma advising that I had received a request from the Democratic Alliance to conduct an investigation into the alleged breach of the Executive Member’s Code of Ethics by President Zuma for his alleged role in the offering of Ministerial positions by members of the Gupta family.
- I quoted relevant extracts from the complaint and the Executive Member’s Ethics Act. I attached the complaint itself.
- I asked the President “if you have any comments on the allegations levelled against you, I will appreciate a letter indicating such comments from you.”
- In the same letter I advised President Zuma that I had received a request from the Dominican Order to conduct a systemic investigation into undue influence in Minister’s and Deputy Minister’s appointments, possible corruption, undue enrichment and undue influence in the award of tenders, mining licences and government advertisements. I attached the complaint itself. I again asked the President “should you have a comment thereon or information that can assist, kindly forward the same to me as soon as possible.”
- On 22 April 2016 I forwarded a copy of my letter dated 22 March 2016 to President Zuma (which had apparently not reached the President). I advised that I was required to submit a report on the alleged breach of the Executive Member’s Code of Ethics within 30 days of receipt of the complaint. I reported to the President that the investigation had not been completed due to inadequate resources.
- I received no response from the President.
- By early September 2016 my office had received additional funds in order to proceed with the investigation.
- By early September 2016 my office had received additional funds in order to proceed with the investigation. (My clarification: Pravin Gordhan and Mcebisi Jonas at Treasury had paid for the investigation)
- On 13 September 2016 I sent another letter to the President asking for a meeting with him in order to brief him on the investigation and affording him a further opportunity to comment on the allegations, which were summarised to the effect that the President ought to have known and/or allowed his son Duduzane Zuma to exercise enormous undue influence in strategic ministerial appointments as well as board appointments at SOEs.
- On 1 October 2016 I sent President Zuma a Notice in terms of Section 7 (9) of the Public Protector Act. The notice restated the complaints and added the third complaint. I advised that my investigation was now being conducted in terms of “State of Capture” A Report of the Public Protector 14 October 2016 41 section 182 of the Constitution read with sections 6 and 7 of the Public Protector Act. I provided a full description of the issues investigated and how President Zuma was implicated therein. I detailed the evidence implicating President Zuma before describing his responsibility under law. I ended off the notice by advising the President that if I do not get his version which contradicts the said evidence, there would be a possibility that I could find that the above allegations are sustained by the evidence. I detailed the various conclusions that I would make in that case.
- In the meantime, a meeting was scheduled with the President for 6 October 2016.
- On 5 October 2016 I received a letter from the Office of the Presidency referring to a media article and asking, in preparation for the meeting, for urgent advice on the findings I had made as well as a report on whether the veracity of the allegations by Jonas had been fully ventilated and investigated.
- On 6 October 2016 I met with the President, whose legal team raised various legal objections and refused to discuss the merits of the investigation or the allegations against the President. The Presidency requested that the meeting be postponed to allow the President to study the documents provided and obtain legal advice. The Presidency raised an objection that they had not been provided with the relevant documents and records, and argued that they should be allowed to question witnesses who had already testified before me. I disagreed with this request and instead offered to provide the President with written questions to which the President would be required to respond by affidavit.
- The President’s legal advisor argued emphatically that the matter should be deferred to the incoming Public Protector for conclusion. There was a lengthy discussion with the President and his advisor on this matter, after which the President expressed his willingness to answer the questions posed by the Public Protector, at a future date, after having had an opportunity to scrutinize the documents and consult with his legal advisor. I advised the President that as head of state, he is accountable to the people of the Republic, and that it is in his interest that he do so. In an attempt to demonstrate to the President that my questions to him were questions of fact, not requiring legal assistance, I posed said questions to him. This discussion is captured in the transcript of this meeting, which is attached hereto as Annexure 11. The President undertook to meet with me again on 10 October 2016 and provide me with an affidavit in response to the questions posed.
- On 10 October 2016 I received a letter from the Presidency, in which he took exception to having been given two days before the meeting of 6 October 2016 to prepare for and give evidence on a range of matters which exceeded the ambit of the stated request for the meeting. This was as a result of the Notice in terms of Section 7(9) having only been received on 2 October 2016.
- The letter continued to raise issues of objection. Firstly, the Presidency advised that Section 7(9) required that he or his legal representative should be entitled to question other witnesses, determined by me, who have appeared before me.
- Secondly, the audi alteram partem rule required that, as an implicated person, the President is entitled to the documents and records gathered in the course of the investigation, to enable him to prepare his evidence.
- Thirdly, the Presidency required a full opportunity to be heard in order to avoid remedial actions – that would be binding on him – based on evidence not tested by the President as an implicated person.
- After providing the written questions to the Presidency, he made somewhat of an about-turn by deciding that in fact before deposing to an affidavit, he still required a list of witnesses, statements, affidavits and transcripts of any oral testimony and wanted to question witnesses.
- The Presidency accordingly declined to provide answers to my written questions and cancelled the meeting for 10 October 2016.
- The Presidency concluded by objecting to my statement at the 6 October 2016 meeting that I was in a hurry to complete the investigation, which was not ‘part heard’. The Presidency suggested that the investigation could just as well be completed after my term as the current Public Protector expired, as with other pending investigations. The President’s diary was determined well in advance and did not allow him to attend to the matter within the truncated period.
- The Presidency requested an undertaking by the following day, 11 October 2016, that I would not conclude the investigation and issue any report until he had received the aforesaid.
- On 11 October 2016 I wrote a letter to the President in response. I reassured him that I had, to date, not concluded my investigations into this matter and had made no adverse finding against the President.
- I undertook that this office would comply with its duties under the Constitution, the Public Protector Act, Executive Members Ethics Act and all other relevant laws in conducting this investigation and submitting the report.
- I noted that I had, since my first letter to him dated 22 March 2016, gone to great lengths to provide him with sufficient detail regarding evidence implicating him and the response required from him. (My intepretation: Was there evidence given since March 2016? Much has been said about the president getting questions since March, is that really the truth?)
- I had, in compliance with the Public Protector Act and the law on administrative justice, provided him with ample opportunity to respond in connection therewith
- The Notice in terms of section 7(9) of the Public Protector Act was merely one in a succession of letters to him canvassing substantially similar issues regarding this matter.
- I noted my concern that he had, on two occasions, undertaken to provide a response to questions put to him in writing; when the time arose, he changed his mind and refused to provide responses.
- I advised that it was incumbent upon him to provide responses within a period that I decide is both convenient and practical to me, given that firstly the Constitution requires him to assist and protect this office. Secondly the Constitution prohibited him from interfering with the functioning of this office. Thirdly, the Public Protector Act vests in me the discretion to require him to provide me with an expedited response. Finally, the spirit of the Constitution and the Public Protector Act requires him to cooperate fully in the investigation process; conversely, recalcitrant witnesses, particularly high-ranking members of the Executive such as him, should be regarded as violating both the letter and spirit of the Constitution and the Public Protector Act.
- I advised that I had provided him with the evidence of the witnesses implicating him. He was not entitled to the full record of investigations as a condition precedent to answering the questions I had put to him.
- I requested the questions he wished to pose to witnesses who had appeared before me. I undertook to make a determination on such questions in accordance with the Public Protector Act. (Gatekeeping or legal?)
- I advised that he was not entitled to refuse to answer the questions I had put to him prior to questioning other witnesses who had appeared before me. His right to question witnesses was not a sine qua non for his response to my questions.
- I concluded by stating that it was in the President’s interests, and that of the people of South Africa, to account fully and honestly regarding the allegations against him.
- I afforded the President a further extension to answer the questions put to him by no later than 11 am, Thursday, 13 October 2016 to enable this office to conclude the investigation and issue its report on the outcome thereof as soon as possible.