SA Council Of Churches Joins Chorus Against Extension Of State Capture Terms Of Reference


To: Advocate Busisiwe Mkhwebane, Public Protector
From: Rt. Rev. Malusi Mpumlwana, SACC General Secretary
Date: January 15, 2018
Subject: On the Judicial Commission of Enquiry into State Capture CC: Heads of Member Churches

Dear Advocate Mkhwebane,

The South African Council of Churches has noted the January 10, 2018 statement by the Public Protector, on the appointment by the President of the Republic, of the Judicial Commission of Enquiry into State Capture. This, of course, being in accordance with the remedial action prescribed in Section 8.4 of the Public Protector’s October 14, 2016 State of Capture Report.

In your official statement Ma’am, you make at least three recommendations to the President of the Republic, as cited below. We write in the first instance to establish the status of the recommendations – i.e., whether this official statement amounts to an official directive in keeping with your role in monitoring “the implementation of the remedial action”, as prescribed in section 9.1 of the State of Capture Report.

The three recommendations we refer to are a call to the President to ensure that:

  1. “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”; and
  2. “are 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.”
  3. “the Deputy Chief Justice has power to expand the issues to be investigated, should any relevant evidence of state capture be brought to him during the inquiry.”

We enquire in order to have a clear appreciation of the intended legal status of these recommendations in the execution of the Public Protector’s statutory role.

We note further that the Public Protector is offering to draft the terms of reference for the President. It seems evident to us, that the Public Protector is offering to make good on her proposed adjustments to the terms of reference; the adjustments whose status we are seeking to establish. The Public Protector will know that the South African Council of Churches has, through its Unburdening Panel process, come to gather a fairly extensive familiarity with the matters of State Capture. While we would wish to keep an open mind about the intentions of the Office of the Public Protector, we do seek your clarity so as to consider if we may need to act in protection of the public interests in regard to the urgent matter of State Capture. We would however not wish to lightly temper with the Public Protector’s statutory role, unless the situation warranted it.

We note Madam, that in paragraph (iii) of the Executive Summary of the State of Capture Report, the Public Protector specifically said:

“The Public Protector received three complaints in connection with the alleged improper and unethical conduct relating to the appointments of Cabinet Ministers, Directors and award of state contracts and other benefits to the Gupta linked companies.”

We highlight in bold, the reference above, to the specificity of the three complaints that occasioned this investigation and report. We fail to understand how the Public Protector proposes a move of terms of reference of a Judicial Enquiry designed to address a specific investigation and report, to a prospect of “expand(ing) the issues (that are yet) to be investigated”. That, we fear Madam, might become an open ended “mission creep” that will effectively blunt the purpose of the remedial action as prescribed.

Our concern Madam Public Protector, stems from our understanding and firm belief that the reason that the remedial action of your office as Public Protector, required this Judicial Commission of Enquiry, was solely to conclude on the specific matters that had been initiated. We do not believe that the purpose was to generally address any matters that might arise post the report in regard to the State, relevant and important as these might be in the governance of the State.

The Public Protector explains her recommendations as a way “to avoid any further allegations of state capture being lodged with the Office of the Public Protector”. Why would further complaints be avoided? That, as we understand, is the very purpose of the Office of the Public Protector. It is perfectly to be expected therefore, that the Public Protector will continue to receive complaints. When these come, the Public Protector has the professional discretion to decide to investigate them or not; but we would not expect new matters to be tagged along other prior projects that have their specificity in remedial action.

Yet on a secondary basis Ma’am, the Public Protector’s kind offer to help draft the terms of reference for the President raises an interesting point. For it may not be, or seem to be fair to expect the President to draft terms of reference to further an investigation into matters of possible impropriety in his office, even as paragraph (ii) of the Executive Summary of the Public Protector’s Report says:

“This report relates to an investigation into complaints of alleged improper and unethical conduct by the president and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and directors of State Owned Entities (SOEs) resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses”. (Our emphasis in bold)

In these circumstances it makes sense for the President to be assisted, exactly in the spirit of the doctrine of conflict of interest. This, however, may not have been raised by the legal institutions. As Public Protector and monitor of the remedial action, you may well be the competent Officer to assist with the terms of reference that are in keeping with the purpose of the Judicial Commission of Enquiry as proposed by the Public Protector’s Report.

But Ma’am, we would worry if your understanding is that the terms of reference could be expanded to fit whatever might yet come, as your public statement has suggested. That is why we seek your clarification of the status of your call to the President on the terms of reference. Your prompt advice on this matter will be much appreciated as it informs us and the public whose Protector your office is, if they can look to you to support this urgent enquiry as is intended in the remedial action; for indeed, it was to have been initiated within 30 days of October 16, 2016.

In summary Madam Public Protector, we seek your clarification on the intended legal status of the Public Protector’s call to the President to expand and nuance the terms of reference as cited in the Public Protector’s public statement. Should we regard it as a potentially binding addendum to the remedial action already given by the Office of the Public Protector in the October 16, 2016 report?

Kindly also be advised that we also intend to write to the Chair of the Judicial Commission of Enquiry into State Capture, Deputy Chief Justice Raymond Zondo, to solicit his understanding of the status of the Public Protector’s recommendations on the terms of reference, in the light of the writ of the primary remedial action that occasioned the Judicial Commission of Enquiry he has been appointed to chair.

Bishop Malusi Mpumlwana

General Secretary, SACC

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  1. The current PP investigates everything that is corrupt regardless of its colour, creed,culture, or religion etc. She is not selective in her fight against corruption and the SACC and it’s bosses don’t like that. What I can say is that, good PP, please keep up the good work. We are fully behind you.

  2. Then if Thuli Madonsela investigated the ABSA Lifeboat and sat on the findings that could only mean one thing; a biased ‘Public Protector’ who is captured by WMC and who is supports White Corruption and will try to conceal it by all means possible. We must not allow such a corrupt person to influence us.

  3. Thuli Madonsela refused to investigate the ABSA lifeboat. So, according to SACC, this was excellent work by the erstwhile PP? And it (SACC) expects the current PP and the Chair of the Judicial Commission of Enquiry into State Capture to do as Thuli Madonsela and refuse to investigate White Corruption but only investigate perceived exaggerated Zuma’s corrupt activities. You are playing lousy politics here and we South Africans are not going to allow the oppressor to use you to further oppress us.
    We will organise and fight all White Monopoly Capital surrogates.

    1. Cde Mzilakazi, Thuli Madonsela did investigate ABSA’s lifeboat, the findings of which she sat on until the current PP presented to the public. And even then, not before they were leaked to the media.

      1. Pk please don’t go there. Thuli did not investigate the Absa Lifeboat, but sabotaged it!

        So that it can backfire to the new public protector….That’s the fact of the matter.

  4. The SACC is known to be part of the Witchunt Agenda by White Monopoly Capital on the State President.
    The SACC doesn’t complain about the Corrupt Construction Companies stealing Billions of Rands through so called collusion; the SACC doesn’t complain about the Billions stolen through the ABSA bailout; the SACC doesn’t complain about the fixing of the Rand/Dollar exchange rate by the corrupt big4 banks in South Africa; the SACC doesn’t complain about Billions stolen by Steinhoff from the GEPF; the SACC doesn’t complain about the judgements which are insinuating that some Judges are captured themselves (A court judgement ruling that says a State president cannot appoint a judge because he implicated?). That is an indictment to all Judges because what it means is that, there are also factions within the Judiciary. Again, the SACC doesn’t not complain about this. The list is endless.
    All reasonable South Africans know that just like in the days of Missionaries, the SACC represents it’s Masters in the West and one faction within the ANC. It’s clear which faction in the ANC they represent.
    So, according to you SACC and Thuli Madonsela, white corruption is fine. We must not even ask when white corrupt companies steal our pension monies?
    Our hope that South Africans are not going to allow this State Capture Investigating Commission to be reduced like Thuli Madonsela, to another Political Parties and Factional Wars weaponry and shenanigans.

  5. Needless to say the initiating of this inquiry was controversial from the start:

    Thuli told us the complainants were
    1)Dominican Friars
    2) DA Leader
    3) Mcebisi Jonas

    I as a Catholic holding the highest layman position in the catholic order, I questioned the FRIARS in terms of their involvement

    The fallout in the Order since has been cataclysmic for the priests, none so much as what happened next in the proverbial monastery.
    Members of the Dominican Order of Southern Africa were faced with threatening phone calls, in-fighting and threats of divisions exposed when two of its members wrote to the public protector’s office, requesting the office to investigate the Gupta family and their possible meddling in state affairs.

    Sikhosiphi Mgoza, former friar-general of the body of Catholic priests, says the submission was made without the permission of the order’s governing council and could therefore not be made — as it was —under the name of the order. “On matters of public importance, no individual member of the order can speak on behalf of the order. And the order never approved the submission.”

    The Dominican Order of Southern Africa is a body of Catholic priests from South Africa, Zimbabwe, Malawi and Zambia.The submission was made to the public protector’s office in the form of a press statement on March 17 by Brian Mhlanga and the order’s vicar-general, Stanislaus Muyebe. Muyebe, head of the order, said the submission was made “to speak out on behalf of the poorest of the poor in South Africa”. Mgoza, however, maintained that the order’s council should have been consulted before the submission was made.

    1. The problem I had with ,Fr Stanislaus Muyebe (vicar-general) who submitted the press statement to Thuli Madonsela is:

      1) He’s a non south african (immigrant in this country)

      2) He has a personal relationship with “Johan Rupert” which was developed when he furthered his studies in law at the university of stellebosch.

      1. Cde Jeff, you are skating on very thin ice here. Why should it matter that Fr Muyebe is not a South African? He works in our country. There are many South Africans who share his views about the alleged Gupta influence on the Presidency. How do we know of this Personal relationship with Johann Rupert? Surely having studied at Stellenbosch is not enough evidence?

        1. Pk am a born a Catholic & am third degree brother knight of Da Gama, in the order. I know that all public release are done through the Bishop Confererence peace and justice. Yes we have lots of non south african priest in the Catholic order and non of them in my 64 years with this order have ever by passed the process. How do I know he’s got a close relationship with Rupert? I saw picture of him in the catholic link (that’s a book published by the church.

          1. Needless to say that the whole press release that was then used as a complaint, was based on Media speculation and not on facts. The question that arises is there are so many stories of corruptions that the media publishes, why did he find this particular one to be more important than the others?

            Pk you must try and go to any country and lodge a complain against their government & alleged they are corrupt without facts & see what will happen!

          2. Jeff, you make a very good point about why this priest questioned this particular corruption. But the media’s campaign made sure that focus was on the Guptas. You had to be a person of a special kind to ignore it. Our Constitution and country is too accommodating. Why do you think we are astounded to see Zimbabweans toyi-toying in our streets but would never dream of trying it in their own countries? The response from that government
            would be completely different.

          3. Let me highlight the inconsistencies, in how the this inquiry was selectively conducted.

            During the same time it was announced that the Dominican Friars had lodged the complain, a special gathering of all Faith Group in S.A. took place in Braamfontein (Jhb).

            I was invited to this gathering as a guest speaker, SABC was present and press release was done to both the President & Public Protector.

            The overwhelming decision taken in this gathering was that all corruption must be combined into this inquiry, that included the BLF complaint on alleged Rupert influence to put back Gordhan as speculated by media, the Absa lifeboat and corruption in SOEs including the hundreds of billions spent on the two new power stations as a result of non compliance by the contractors.

            Why was this not incorporated in this inquiry will remain unanswered!

            Surely the voices of all Faith Groups should be worth more than two religious orders (SACC & Dominican Friars)

    2. Cde Jeff from the media articles I’ve been able to peruse, the name of Stanislaus Muyebe is the one I see as the being the initiator of the state capture.

  6. Dear Pinky
    Thank you so much for the above aricle
    I wait now with bated breath ,the response of the Public Protector
    You see,I am presently outside the country,so,any News of this nature is highly appreciated,!

  7. Ramaphosa also has captured the SOE’s because his business have tenders with the SOE’s, that is why he does not want the inquiry to be broader his name and his masters names will come out in the inquiry.

  8. “If the crusade against corruption is merely vindictive; selective; driven by the corrupt and media blood thirsty attacks to cover for WMC corruption. Then in the end we won’t have corruption free society. We shall be ruled by corruption.”~Andile Mngxitama

  9. SACC again! Why are they uncomfortable about the widening of the investigation? Is it because they are partial and selective in their stated aim of combating state capture? Let them place their own report before the proposed Commission in the same way that I would expect other parties to be allowed to submit their own reports. Their report and views are not sacrosanct simply because they wear priest’s vestments and robes. Is specifically this type of selective morality which has long convinced me that our churches have themselves been captured by powerful business and racist lobbies.

  10. I call for Bishop. Malusi Mphumlwana to retract this letter.

    As it is against the interest of the black poor people of this country, who are fighting for the uprooting of all kinds of corruption,within government & private sector

  11. In short this is what they want..Investigate #Gupta …Look at links with #BellPottinger…As soon as Commission sees Rupert..shhh, move on quietly ,..Yeah there are the Dudus, there is Zuma..there is Oppenheimer….shut up they white.

  12. It is sad to see religious clergy men
    Under the SACC to operate like a bunch of gangsters that use God`s name as a mockery to achieve they ulterior agendas.

    What is wrong with including other corruption & state capture into the proposed commission of inquiry.

    Why should it be limited to:

    the alleged improper and unethical conduct relating to the appointments of Cabinet Ministers, when Thuli Madosela herself went beyond the actual complaint, to include state Capture in SOEs..

    What is really the concern of the SACC ?

    Is it a fight against corruption or regime change ?

    “We pray for all of you clergy men as you are clearly being possesed by the devil”

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