The Maytrix questions the conduct of former public protector, Thuli Madonsela in the state capture probe. Find him on Twitter @themaytrix23
Did Thuli Madonsela act outside of the spirit of her office when she failed to summon Fana Hlongwane to testify?
Fana Hlongwane wrote to the public protector offering a different version of the meeting that is said to have taken place between Deputy Finance Minister Mcebisi Jonas and the Gupta family members. He denied claims made by Jonas that he had been offered the job of heading up Treasury. He also cautioned against the use of the office of the public protector in the factional politics within the ANC.
Instead of interrogating Hlongwane’s submissions, Madonsela elected to attack his character by making remarks whose apparent intentions were aimed at discrediting him as a potential key witness. Madonsela said she didn’t know who Hlongwane was and that the only time she had heard of him was over his alleged involvement in the arms deal. She went further to state that if he wanted to provide input into the investigation he had to testify under oath so that he could be charged with perjury if he was lying. Such remarks are not reflective of a law enforcement official operating in good faith and it is extremely troubling when one considers the context within which these were made.
Did Thuli Madonsela act outside of the spirit of her office and profession when she chose to attack Fana Hlongwane after he wrote to her office contradicting the version given by Mcebisi Jonas that he had been offered the job of finance minister by a member of the Gupta family?
In the case against Nomgcobo Jiba and Lawrence Mrwebi, an excerpt from the judgement reads:
“The following are listed as the least of qualities a lawyer should possess:
- Integrity– meaning impeccable honesty or an antipathy to doing anything dishonest or irregular for the sake of personal gain
- Dignity– practitioners should conduct themselves in a dignified manner and should also maintain the dignity of the court
- The possession of knowledge and technical skills
- A capacity for hard work
- Respect for legal order and – A sense of equality or fairness We have to consider how Thuli Madonsela conducted herself when she elected to attack Fana Hlongwane’s integrity instead of considering his version? This does not appear to have been dignified, and congruent with the least of qualities that a lawyer should possess. How do you protect members of the public when you expressly treat some of them with this level of disdain?
Did Thuli Madonsela’s failure to afford the implicated an opportunity to question witnesses whose testimony she used to conduct her investigation amount to improper conduct and breach of section 7(9) of the Public Protector Act?
Both the Gupta family and President Jacob Zuma complained that they had not been given an opportunity to question witnesses that Thuli Madonsela relied on in her investigation despite the PP Act affording them such entitlement. Did this alleged failure on Madonsela’s part constitute a breach of the Act? Can we say that her conduct in this regard was proper for an individual leading an office whose incumbent ought to demonstrate a sense of legal order? And we know that this could not have been oversight on her part given that the President, through his lawyers, was at pains to point out the section of the PP Act that entitles him this right to question witnesses.
Did Thuli Madonsela’s failure to subpoena the implicated constitute a deliberate disregard of conducting investigations in an honest and fair manner?
The Gupta family complained through their attorney of record on the matter, that they had never been subpoenaed by Thuli Madonsela at any stage during the investigation. One would expect that people implicated in a matter ought to be interviewed at least, if not cross-examined before an investigation can reach a meaningful and objective conclusion. Without even looking at the law, anyone entrusted with the duty of conducting investigations in a fair manner should at least possess a sense of equality and fairness.
Ajay Gupta met with Madonsela only after he had enquired about the family’s exclusion from the list of people to be interviewed. He met Madonsela on his own volition.
Did the Treasury act improperly when granting the office of the Public Protector an additional R1.5 million to investigate claims made by Deputy Minister of Finance Mcebisi Jonas that formed part of the so-called state capture investigations
The allegations that the Gupta’s influenced the appointment of cabinet ministers started with Jonas.
Did the act of requesting the office of the Public Protector to redirect funds from others cases to the so-called state capture put pressure on the incumbent to act with fear or favour? Treasury’s number two, Mcebisi Jonas, is a key complainant in the investigations into alleged state capture. Treasury made R1.5 million available to the investigation when the office of the public protector had over 4000 cases, most of which could not be concluded owing to a lack of funds. The money was availed to enable this investigation to take priority over the other 4000+ cases. Intuitively, a potential conflict of interest has been introduced in the matter. By extension, the probability of investigations being conducted with favour was likely increased by this abnormal act. One may say that it is to be expected that Treasury provides funding for all arms of the state. This case is concerning in that the funds were accompanied by a prioritisation of a case in which a deputy finance minister is the complainant. The president’s statement made reference to a comment that Madonsela allegedly made when she spoke of being in a “hurry” to complete the report. The act of rushing to complete a report having heard Mcebisi Jonas’s side of the story without having entertained versions that opposed it, would ordinarily have the effect of favouring this side over others. Is this not a situation where Thuli Madonsela is acting with favour towards a complainant whose department made funds available so that this investigation could be speeded up?