AnalysisPolitics

Will TheTerms Of Reference Into State Capture Satisfy Everyone?

By Pinky Khoabane

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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.

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Black First Land First staged a picket outside the Deputy Chief Justice on the day he held his first press conference

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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.

 

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8 Comments

  1. The terms of reference as published on Gov Gazette are broad enough to deal with all alleged corruption/poor governance/oversight within Govt and SOEs which would have resulted in some form of gain or favor.

    Paraghraph 1.1 deals with this even though it focuses on specific ones, than others, it is not limited.

    Section 2 makes that provision for others.

    1. As it seems to be a legal norm to implement the public protector remedial action,while being on review, the president should do likewise to the remedial of Ciex report.

      At least Implement remedial 7.1.2 “Re-open and amend Proclamation R47 of 1998 published in may 1998 in order to investigate alleged misappropriated public funds given to various institutions as named in the Ciex report”.

    2. We pray for Hon Judge Zondo.

      He would need more then wisdom in dealing with allegations specified on 1.1-1.4

      Due to dubious and questionable witnesses like Mcebisi Jonas & Ms Mentor & whoever else.

  2. Saw one very very senior ANC leader trying to give his take on the Terms of Reference on TV. Given that he has been calling for a speedy establishment of the commission, he appeared to be very uncomfortable and also seemed to contradict himself. Being at the top of our organisation can be very tough. Perhaps he would be better advised to seek advise from the outgoing leadership.As the saying goes in isiZulu, ” indlela ibuzwa kwabaphambili”.

    1. Mmmh?? Wonder who this politician is!

      But Cde Tito Mboweni made some interesting comments on Twitter last night & I couldn’t but help think of the State Capture Commission which so many called for and will probably find themselves appearing there.

      Here are some of his comments below, maybe someone can decode the last one (3).

      1. In political leadership, be careful not to make hasty decisions encouraged by forces outside your organization. The media, markets, etc. Never be mislead by sudden, seemingly positive market sentiments, its temporary. It will come to pass…

      2. In any political situation, one has to avoid “POLITICAL ADVENTURISM”. One has to carefully study the balance of forces. Adventurist Political decisions may tear an organization or country apart. That’s what an opposition or an enemy to you yearns for..

      3. Finally, as I retire for the day, one last Political idiom. WHEN IN LEADERSHIP, BE CAREFUL NOT TO CREATE AN ARMY OF THE WALKING WOUNDED. They will come back to haunt YOU! Remember the Bolsheviks and the Mensheviks in Russia?

      1. Let me decode Tito third tweet.

        He is simply and correctly predicting that the Commission of inquiry is going to create a split in the ruling party,which will compromise it in 2019 giving leverage to the oppositions.

        Yes its true, as JZ warned! Those that called for this commission of inquiry will be sorry!

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