Man of the hour: Chief Justice Mogoeng Mogoeng
Thuli Madonsela’s last act as public protector was to future-proof her state capture report probing President Jacob Zuma’s ties with the Gupta family amid concerns that her successor might be “one of them”.
ANC secretary general Gwede Mantashe said the party’s national working committee will meet on Sunday and Monday to discuss Zuma’s future and the report.
About a week before Madonsela’s investigative team was supposed to publish their state capture report on October 14, they realised they were being “played by President Zuma’s team”, an insider said this week.
It was almost too late when the public protector’s team caught on to the deceit with which Zuma clearly had no intention of answering their questions, despite promises to do so.
Zuma’s legal adviser, Michael Hulley, was “advising the president like you would do a thug, and not like one would expect a president to be advised”, a source said this week.
“They seemed to be committed to delay the matter until Thuli finished her term and Busisiwe [Mkhwebane] would take over. Their overzealousness, and the fact that Busisiwe came from an intelligence background, made us suspect she was one of them,” another insider said.
The public protector’s team received word that Zuma’s legal advisers were shopping around for an advocate who could launch the urgent interdict to keep the state capture report under lockdown.
At the same time, Madonsela’s office received official communication pledging Zuma’s commitment to answer questions relating to his and his son Duduzane’s business dealings with the Gupta family.
The public protector’s team devised a plan to outwit, outlast and outplay the Zuma team to future-proof the state capture report:
- The protector’s team immediately sourced its own lawyer and started preparing for the imminent interdict. About six days later, Zuma’s legal team asked the high court in Pretoria to urgently interdict the release of the state capture report;
- A hard copy of the report was sent to National Assembly speaker Baleka Mbete for safekeeping. Normally the public protector team would email copies. The reason for the deviation was twofold: Mbete opening the envelope meant that the state capture report was officially handed over to an authoritative member of government outside the public protector’s office. The report was now final and could not be altered. Providing it in hard copy form also stymied any leaks to the media;
- Madonsela instructed Zuma to appoint a commission of inquiry into himself, his son and his cohorts. However, she took all power away from him when she recommended that Chief Justice Mogoeng Mogoeng appoint the judge chairing the commission. The judge is further to appoint his own staff to probe the claims using the public protector’s report and the investigation record as a starting point. Further, the judge will be imbued with at least the same powers as those of the public protector, including that of subpoena;
- Madonsela notified the Hawks and the National Prosecuting Authority (NPA) of matters where it “appears crimes have been committed”, as prescribed by the Public Protector Act. They are now obliged to investigate and prosecute if a prima facie case of criminality exists. They are not obliged to wait for the commission of inquiry to finish its work before they start investigating; and
- Madonsela recommended that her successor “will monitor the implementation” of her remedial action. She instructed Parliament’s secretary and the presidency’s director general to provide periodic implementation reports to Mkhwebane.
The snag in Madonsela’s team’s plan is it relied on civil society to question deviations from the recommendations and enforce compliance.
Responding to criticism from Mkhwebane, her spokesperson, Oupa Segalwe, said: “The public protector took over the office with all its successes and failures. That is why she went to Parliament to present an annual report that was not prepared by her. That State of Capture report is the property of the public protector as an institution.”
Zuma launched his application to interdict the release of the report on October 13. On Wednesday, however, the presidency withdrew its application “in the interest of justice and speedy resolution”. The reasons cited have been treated with circumspection.
“The president will give consideration to the contents of the report in order to ascertain whether it should be a subject of a court challenge,” the presidency’s statement read.
Madonsela said she has full confidence in the public protector team working on the matter, and in her successor. “She has given me no reason to doubt her integrity and commitment. The state capture matter can only be investigated in open process, where the public can scrutinise the matter,” she said.
Zuma visited Zimbabwe this week, making communication difficult. Comment from the presidency will be published on the Mail & Guardian website once it has been received.
The Guptas’ lawyer, Gert van der Merwe, said the family won’t challenge the state capture report and will work with a judge and his commission of inquiry. He added: “We welcome Madonsela’s report … It makes no findings against my clients, for good reason. She rightly steered away from making findings against my clients; she did not hear our version. Now we look forward to work with a judge on this. We won’t have to struggle with someone inexperienced in law of evidence.
“I’ve seen Vytjie Mentor’s affidavit. It is questionable … I look forward to questioning it. And so we will question every detail. Mcebisi Jonas’s version, the Eskom deals, everything.”
And with the focus on Madonsela’s final report, Mkhwebane has done little to instill confidence, with many of her predecessor’s top-tier officials being sidelined. Chief executive Louisa Zondo resigned on Wednesday “for personal reasons”, and others say they have been shut out of doing any meaningful work. Staff at the offices in Pretoria had to undergo a new round of security checks this week, and access to the public protector’s inner sanctum has been increasingly restricted.
The report has left the ANC at a crossroads. Its national executive committee will discuss the matter when it meets late in November, Mantashe said. He said: “We have no problem with a judicial inquiry; it will go deep into the real issues. The state capture report is inconclusive.”
Internally, it is understood that there is a pushback against Zuma. At a meeting of the ANC’s top six officials, Zuma asked that action be taken against ANC leaders publicly criticising him. But Deputy President Cyril Ramaphosa, supported by Mantashe and treasurer Zweli Mkhize, shot the idea down. Jessie Duarte and Mbete supported Zuma.
A NEC member, who asked to remain anonymous, said ANC leaders want a special NEC meeting to discuss the implications of the state capture report as a trend of increasingly embarrassing Zuma scandals.
They added: “We have a scheduled NEC [meeting] from November 25 to 27, but … South Africa can’t wait for that long. The ANC has two choices: It’s either we choose the old slogan to say we are united behind the president or the man takes the ANC down with him. Comrades are of the view that, before the ship sinks, we must get Jonah out of it.”
Another NEC member, sympathetic to Zuma, said an ANC president must resign voluntarily for the ANC’s sake, adding the state capture report’s implications were huge.
Those implicated in the report include Zuma and Duduzane, Eskom board chairperson Ben Ngubane and chief executive Brian Molefe, Ajay Gupta, the Gupta-controlled Tegeta company, Public Enterprises Minister Lynne Brown, Co-operative Governance Minister Des van Rooyen and Mineral Resources Minister Mosebenzi Zwane.