Mkhwebane sets terms of reference of state capture commission

Mkhwebane closes her statement cautioning that due to Parliament’s "failure to properly resource the office they might not be able to properly investigate all the allegations of state capture". (Gallo)

Mkhwebane closes her statement cautioning that due to Parliament’s "failure to properly resource the office they might not be able to properly investigate all the allegations of state capture". (Gallo)

Public protector Busisiwe Mkhwebane has released the terms of reference into the state of capture commission requested by her predecessor, Thuli Madonsela, into how numerous state-owned entities were captured by the Gupta family and the role numerous officials, including President Jacob Zuma, played.

But she claims there won’t be enough funds to investigate all the allegations due to under resourcing.

This comes after she allegedly called for a wider scope into state capture but in the statement she now says her utterances were misinterpreted in various media reports and by commentators.

“The publication of the statement was intended to suggest that all related allegations of state capture are investigated by the commission and that the commission’s work is not limited to those identified for investigation in the state of capture report,” she said.

Mkhwebane proposes that there be a two-phase commission that will first deal with issues investigated in the State of Capture report and also focus on those issues identified and reserved for the next phase of investigation in the report within 90 days.

“Phase two will focus on the state of capture complaints lodged with the office of the public protector subsequent to the publication of the report and so-called ‘Gupta emails leaks’ published in the media subsequent to the publication of the report,” reads her statement.

This phase should be completed within 90 days calculated from the date of publication of the findings on phase one.

The second phase according to Mkhwebane will focus on Eskom – how Brian Molefe was reappointed as the chief executive officer and the role Minister Lynne Brown played in that.

There will also be a focus on how former acting chief executive Matshela Koko channelled contracts to a company partly owned by his step daughter and the allegations that he leaked legal opinions to the Gupta families.

Brown is in line to be investigated for her failure to exercise the required executive oversight over Eskom, its board and management.

Former minister of mineral resources Ngoako Ramatlhodi will be questioned on his allegations that Molefe and former Eskom Board chairperson Ben Ngubane pressurised him to help the Guptas take over Glencore’s coal mine in 2016.

Transnet is also in the commission’s sights where allegations regarding kickback agreements totalling R5.3-billion regarding the procurement of trains will be probed.

Finance Minister Malusi Gigaba’s role when he was heading up public enterprises will also be probed, specifically how he appointed Iqbal Shama and Molefe as Transnet board of directors, chair of the board acquisition and disposal committee, and senior management respectively.

The terms of reference also focus on the following role players who will be investigated:

  • Officials involved in the procurement process for freight locomotives in July 2012;
  • Regiments Capital and Trillian Capital partners in the procurement process of Transnet freight locomotives;
  • The role of Duduzane Zuma and the Guptas with regard to the appointment of Gigaba as Finance Minister and how he facilitated meetings between president Jacob Zuma and private Russian Investment Company, Sistema Joint Stock Financial Corporation, in Switzerland; and
  • Allegations that Guptas received high-level confidential information from then minister of communications Faith Muthambi.

The commission will centre around the Gupta family and how it influenced and even facilitated appointments of senior management and board members of Eskom, Transnet and SAA and how the family paid for the luxury travel of these executives.

“Allegations that at least two immigration officials (Gideon Christians and Ms Munyadziwa) were specially positioned in India by the then Minister of Home affairs, to assist the Gupta associate Mr Ashu Chawla to the benefit of Gupta-owned businesses, liaising through Mr Major Kobese, a music producer and director in the foreign office of the Department of Home Affairs,” reads the statement.

Mkhwebane closes her statement with caution that is due to Parliament’s “failure to properly resource the office they might not be able to properly investigate all the allegations of state capture”.

“Despite the fact that I have requested and motivated for a budget of at least R1-billion, the national treasury has cut this institution’s budget by R8-million. As a result of the above and considering the nature of the issues to be traversed and available resources, I will not be able to properly investigate all the allegations of state capture, as reported after the publication of the state capture report.”

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