By Pinky Khoabane
Deputy Chief Justice Raymond Zondo
WITH the terms of reference into state capture now in the open, will those who threatened court action if the scope is broadened or remains solely along the terms stipulated by former Public Protector Thuli Madonsela be happy?
Although Im not a lawyer it seems President Jacob Zuma, in formulating the TOR, may have struck a balance and satisfied each side of the debate.
While much of terms are in line with Madonsela’s report, it is Clause 2, which seemingly, will allow for the amendment of these terms. It says: “These Terms of Reference may be added to, varied or amended from time to time”.
Again I may be wrong but the scope has seemingly been broadened to include other government tenders and the National Executive members who include the President, who may have influenced and themselves benefited from government tenders. I look forward to a lawyer who can interpret the TOR for us.
1.5 “The nature & extent of corruption, if any, in the awarding of contracts, tenders to companies, business entities or organisations by public entities listed under Schedule 2 or Public Finance Management Act No.1 of 1999 as amended”
1.9 “The nature & extent of corruption, if any, in the awarding of contracts, tenders to companies, business entities or organisations by Government Departments, agencies. In particular whether any member of the National Executive (including the President), public official, functionary of any organ of state influenced the awarding of tenders to benefit themselves, their families or entities in which they held a personal interest.”
Find the full TOR gazetted today StateCaptureTOR copy
IT’S not often that there’s general consensus around anything in South Africa. The closest we, as a country, have tried is in 1995 during former President Nelson Mandela’s time of reconciliation, when he wore a rugby shirt and attempted to bring Black South Africans to embrace rugby. We tried to be one nation and then too during the FIFA World Cup in 2010. But once the events were over, we swiftly returned to our two-nations state.
But the announcement of the State Capture Commission brought us together albeit for different reasons. There is general consensus that corruption at state owned entities (SOEs) must be probed but what was the hot potato was the scope of this work, with some saying the investigation ought to be broadened to include the corruption of white monopoly capital and others, including churches, NGOs and parliament’s portfolio committee on justice being vocal that the parameters of the investigation must remain within the state capture report by Madonsela.
Black First Land First staged a picket outside the Deputy Chief Justice on the day he held his first press conference
Here are the Terms Of Reference
- whether‚ and to what extent and by whom attempts were made through any form of inducement or for any gain of whatsoever nature of influence member of the national executive (including deputy ministers‚ office bearers and/or functionaries employed by or office bearers of any state institution or organ of state or directors of the boards of SOEs.
- In particular the commission must investigate the veracity of allegations that former deputy minister of finance‚ Mcebisi Jonas and Miss Vytjie Mentor were offered cabinet positions by the Gupta family.
- whether the president had any role in the alleged offers of cabinet positions to Jonas and Mentor by the Gupta family.
- whether the appointment of any member of the national executive was disclosed to the Gupta family or any other unauthorised person before being made; and if so‚ whether the president is responsible for such conduct;
- whether the president or any member of the executive‚ public official violated the Constitution or any relevant ethical code by facilitating unlawful awarding of tenders by SOEs or any organ of state to benefit the Gupta family or any other family or individual.
- the nature and extent of corruption‚ if any‚ in the awarding of contracts‚ tenders to companies‚ business entities or organisations by public entities listed under Schedule 2 of the Public Finance Management Act of 1999.
- whether there were any irregularities‚ undue enrichment‚ corruption and undue influence in the awarding of contracts‚ mining licences‚ government advertising in the New Age newspaper and any other government services in the business dealings of the Gupta family with government departments and SOEs.
- whether any member of the national executive including deputy ministers unlawfully intervened in the matter of the closing of banking facilities for Gupta-owned companies.
- whether any advisers in the Ministry of Finance were appointed without proper procedures. In particular and as alleged to the Public Protector‚ whether two senior advisers who were appointed by Minister Des Van Rooyen to the National Treasury were so appointed without following proper procedures.
- the nature and extent of corruption in the awarding of contracts and tenders to companies‚ business entities or organisations by government departments‚ agencies and entities. In particular‚ whether any member of the executive‚ public official‚ functionary of any organ of state influenced the awarding of tenders to benefit themselves‚ their families or entities in which they held a personal interest.
The commission, headed by Deputy Chief Justice Zondo, will submit its report and recommendations to the president within 180 days of the commencement of the commission.