State of Capture Report, South Africa
A report compiled by former Public Protector Thuli Madonsela into the alleged capturing of South Africa by a foreign business family was supposed to be released on October 15, but was interdicted by President Jacob Zuma and two ministers.
“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.”— Public Protector, Thuli Madonsella, State of Capture report
Gauteng High Court, Pretoria
NB: I have introduced the Gupta-family and also their alleged relationship with President Zuma in my hub
The court hearing
President Zuma’s application to interdict the state capture report extended over two days. It prompted four opposition parties as well as a former MP to intervene in an effort to convince the court that the report should be published, as it is in the interest of the public.
On Wednesday, November 2nd, the North Gauteng High Court in Pretoria was packed to capacity with the legal teams of President Zuma, Minister van Rooyen, former MP, Vytjie Mentor (who was offered a minister post by the Guptas in exchange for a contract), and the legal teams of the four intervening opposition parties. Three judges were on the bench.
While the arguments in court went back and forth the police had their hands full controlling thousands of protesters gathered in the streets of Pretoria for a massive march against state capture, corruption and Jacob Zuma in his capacity as president.
As expected. the supporters of the Economic Freedom Fighters wrought havoc, vandalizing property, looting shops, provoking the police, and even attacking Paul Kruger's statue with a petrol bomb. (BTW, I see the statue is now safely fenced, after it has been repeatedly defaced.)
By the end of the day the court had to adjourn, as the day was too short to determine the fate of the "State of Capture" report.
The morning of the second day the court was informed that President Zuma has abandoned his attempt to postpone the release of the report. His advocate, Anthea Platt, said she had been instructed not to argue the matter, nor to oppose an order on costs.
State of Capture
According to the ‘state capture report’, officially titled "State of Capture" , President Zuma appears to have violated the Executive Ethics Code, as well as the Prevention and Combatting of Corrupt Activities Act, as he had made no effort to investigate complaints about the Guptas and their efforts to ‘capture South Africa’. Among other, the Public Protector referred to the complaint of Minister Jonas, who was, according to his affidavit, offered the post of Minister of Finance plus R600,000 million by Ajay Gupta. As part of the offer to become a Finance Minister, Mr Jonas would be expected to remove the current Director General of National Treasury and other key members of Executive Management. Ajay Gupta clearly indicated that National Treasury was a stumbling block to the family’s business ambitions. (Ajay Gupta denies making this offer.)
The report reveals a number of irregularities and damning evidence of corruption in relation with the Gupta-family and their relationship with the president as well as their relationship with executives and board members of state-enterprises such as Eskom (SA’s only electricity provider), Transnet (SA’s railways), and SAA (SA’s airways).
“The report finds evidence of significant wrongdoing, improper influence, conflicts of interest and outright corruption – much of which is new information, and all of which points directly to President Zuma, Duduzane Zuma and the Guptas. The manner in which Jacob Zuma has conducted himself is completely dishonourable and unbecoming of the nation’s President.” - Mmusi Maimane, leader of the Democratic Alliance (DA) - the second largest opposition party in SA.
Needless to say, the report has all of South Africa in a state of shock.
The role of South Africa's Public Protector
South Africa's Public Protector was set up in terms of South Africa's Constitution to investigate complaints against government agencies and/or government officials. The Public Protector receives and investigates complaints from the public, and has the power to recommend corrective action and to issue reports. The Public Protector is independent of government and any political party, and is subject only to the Constitution and the law. No person or organ of state – not even the president - may interfere with the functioning of the Public Protector's office.
The way forward
In her report Public Protector Thuli Madonsella orders President Jacob Zuma to establish a judicial inquiry within 30 days to investigate all allegations of improper conduct and undue influence exerted by the Gupta family over him and the other key-figures she has mentioned in her report. She also orders that the commission be headed by a judge solely selected by the Chief Justice.
According to the media and discussions on television, the majority of South Africa wants President Zuma to resign. He should at least be suspended while allegations against him are being investigated, reckons the ANC, Johannesburg branch. But for reasons beyond the comprehension of the majority, the Cabinet and the National Executive Committee (NEC) - the highest organ of the ANC - refuse to dismiss their president, Jacob Zuma.
The humble opinion of an owfma-sa
To be honest, I am totally perplexed. Because I am an owfma-sa, I actually dare not air my opinions. I can but only hope and pray that the current leaders of South Africa put an end to corruption. By blocking all opportunities for people to be corrupt, some serious changes have to be done to existing policies and procedures. The tender system, for example, encourages entrepreneurship and the establishment of independent businesses, but it is also a paradise for corrupt souls. This study and analysis of the tender procedures in national government by Stanley Ngobeni could, perhaps, open some narrow minds.
The thought keeps on crossing my mind that most of SA's problems are rooted in the fact that too many people on all levels of society lack integrity, and there is nothing I can do about it.
By the way, an owfma-sa is an ordinary white female middle-aged South African.
Let's enjoy South Africa's National Anthem (verses in Zulu, Xhosa, Afrikaans, English)
Capture of State Report Updates
Resignation of Eskom's CEO
One of the aftermaths of the State of Capture Report, and in particular the revealing of his cell phone records in the report - 58 calls from him to Ajay Gupta between August 2015 and March 2016 - was the resignation of Eskom’s CEO, Brian Molefe, announced on 11 November. Molefe’s premature resignation is regarded by many as a confession of guilt instigated by his fear of a negative finding by a commission of inquiry.
On Sunday, 20 November, light was shed on Eskom’s financial troubles, which may have played a role in Molefe’s decision to resign. On Friday, 25 November, Standard & Poor’s Global Ratings cut Eskom’s long-term corporate credit rating from BB+ to BB. In other words, at this stage any investments in this largest state enterprise of SA and the country’s only provider of electricity is discouraged, and the chance that this enterprise will be able to pay back its debt is rated negative.
(For the past 20 years this owfma-sa is blinded by the ridiculous high top salaries paid by Eskom and all state enterprises, therefor she can’t even see the rest of the flaws in this company’s, or for that matter any of the parastatals’ financial statements. Cut top salaries, rise bottom salaries, and at the same time try to reduce this expenditure, is her suggestion.)
Motion of no confidence in President Zuma
November 10 - Another aftermath of the State of Capture Report was the 7th unsuccessful motion of no-confidence in President Zuma - the 3rd one to be debated by the National Assembly since January 2016. On Thursday, November 10th, the ANC again used its 62% majority in parliament in favor of their president, as Jacob Zuma has explicitly warned them against voting against him.
ZumaMustFall outcries from all over the country for a long time now come from many South Africans and South African organisations, including ANC members and ANC organisations. Top leaders of the ANC have finally reached the point where they can no longer deny that Jacob Zuma is destroying their 106-year old organization. On November 26th a vote of no confidence in Jacob Zuma has been filed by Derek Hanekom, Minister of Tourism to be discussed in the NEC (National Executive Committee) by only the top leaders of the ANC on November 27th.
Former Public Protector, Thuli Madonsela, being prosecuted for leaking an audio of her interview with President Zuma
November 7th - Following the Controversial-State-of-Capture-report, and in particularly President Zuma’s interdiction of its release, former Public Protector, Thuli Madonsela, has released an audio of her meeting with the president in order to prove that he was lying when he said she didn’t give him an opportunity to respond to the allegation against him. The questions she wanted him to answer were ignored by him since April 2016 when she sent it to him. During their personal meeting he also refused to answer them. Two days after she released the audio the presidency told Madonsela to step back as she has no further role to play in the process regarding her report.
November 27 – Following President Zuma’s complaint about the leaking of the recording of his interview with former Public Protector– and in spite of the fact that a transcript of this audio was attached to the original report released on November 2nd – the present Public Protector, Busisiwe Mkhwebane has laid criminal charges against Thuli Madonsela for leaking the recording.
According to Mkhwebane the release of the audio, recorded during the investigation, was in contravention of the Public Protector’s Act, which states that no contents of any document in an investigation should be disclosed, unless the Public Protector determines otherwise.
According to Madonsella she, in her capacity of Public Protector who had composed the report, has ‘determined otherwise’.
The fact that Thuli Madonsella leaked the audio to the newspapers after her term as Public Protector has ended, and therefor in her personal capacity instead of through the Public Protector's office, may count against her.
Reviewing of the State of Capture Report
25 November 2016 - President Zuma announced on November 25th that he will approach the court to have the remedial action in the Public Protector's report on state capture reviewed and set aside. Apparently the president doesn't have an issue with the contents of the report, but with the Public Protector's order that a judicial inquiry has to be established by the president within 30 days to investigate all allegations of improper conduct and undue influence exerted by the Gupta family over him and the other key-figures she has mentioned in her report. The president also has a problem with Madonsela's order that the commission be headed by a judge solely selected by the Chief Justice.
According to President Zuma and his legal team nobody has the right to tell the president what he should do, and nobody but the president has the right to select the head of a commission.
“This report has been dealt with in a very funny way…. very funny!” said President Zuma on 25 November to the Members of Parliament. “No-one can instruct the president …."
According to Professor Pierre de Vos, South Africa Constitutional Expert at the University of Cape Town, the court has to determine whether the Public Protector acted in accordance with her powers.
"Whatever happens, it is going to be fascinating to see where the Constitutional Court come out on this issue," wrote Prof de Vos.
© 2016 Martie Coetser
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