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24 Aug 2018 00:00
Comfort Ngidi says his appointment to the Zondo commission is above board. (Muntu Vilakazi/Sunday Times)
A staunch ally of former president Jacob Zuma, who led the campaign to discredit the public protector’s Nkandla report, is on the verge of being appointed to assess evidence presented to the Zondo state capture commission.
The Mail & Guardian has reliably learnt that Zibuse Comfort Ngidi, the board chairperson of the South African Post Office, has been recommended to be appointed to the influential position. The commission also confirmed on Thursday that he is undergoing an appointment process that would allow him to give legal advice to one of the commission’s investigative teams.
In 2014, Ngidi acted as national chairperson of an organisation calling itself the Concerned Lawyers and Educationists for Equality before the Law, which set out to challenge the findings of then public protector Thuli Madonsela’s Secure in Comfort report, which revealed that Zuma and his family had benefited from the R246-million “security upgrade” to his family home at Nxamalala near Nkandla.
A second Madonsela report, State of Capture, resulted in the creation of the state capture commission, on which Ngidi could now serve.
The Concerned Lawyers, constituted predominantly of KwaZulu-Natal-based lawyers and academics, ran a roadshow around the country during which they attacked Madonsela and her report.
The Concerned Lawyers worked with former Gupta ally Mzwanele Manyi during their campaign.
At the time Ngidi, who described Zuma as a “great leader”, was candidate number 57 on the ANC’s provincial election list in KwaZulu-Natal for the 2014 elections.
Zuma eventually paid back R7.8-million for the “non-security” component of the upgrade, which included a cattle kraal and swimming pool. The Constitutional Court ruled that Madonsela had correctly classified these features as non-security, ordering the treasury to assess how much Zuma should pay and giving him 45 days to do so.
Ngidi’s law firm has already been retained by the Zondo commission to file an application to extend its term of office by six months. The matter is being heard in the high court and has been adjourned until October 3, when the interim order extending its term until 2020 is expected to be confirmed.
Ngidi and commission chairperson Deputy Chief Justice Raymond Zondo have also confirmed the process to appoint Ngidi, who is also a member of the board of the South African Nuclear Energy Corporation (Sanec).
In a written response to questions from the M&G, Ngidi said he found it “objectionable” that “a suspicion is cast upon my integrity as an attorney and officer of the court based on my exercise of my right to freedom of expression”.
His firm had been appointed to apply for the extension, he said, but he had not yet been appointed to the evidence and investigations section of the commission.
He had never represented Zuma or his family as a lawyer and his actions had been above board. His relationship with the former president and his campaign regarding the Nkandla report did not create a conflict of interest.
“If any of my public utterances or actions were found to be unbecoming of an attorney, the Law Society would certainly have taken action against me,” he said.
“It is common knowledge that I have never acted for the former president, Mr Zuma, or his family as his or their attorneys. The issue of conflict of interest therefore does not arise at all.
“I expressed my views, like many others, including every other citizen of the Republic of South Africa, regarding advocate Madonsela’s Nkandla report and many other reports. Our Law Society even hosted an event where attorneys and members of the public were invited to express their divergent views regarding the report.”
The Nkandla matter had been “finally decided” by the Constitutional Court, Ngidi said.
“My conduct and my comments regarding matters of public interest are publicly known. I have never acted for former president Mr Zuma nor profess to be defending him in any manner.
“I have, however, defended the rights of all South Africans to be treated fairly and in accordance with constitutional provisions. If my stance on the upholding of fair process was perceived as defence for any one, then such is unfortunate.”
Ngidi said he had sought an opinion from senior counsel about whether his comments created any potential conflict of interest, which it did not.
Zondo, whose responsibility it is to appoint lawyers to assist the commission, said Ngidi was being considered for appointment because of his 24 years of experience as a lawyer and his involvement in earlier commissions.
He had taken the decision to appoint Ngidi to assist an investigation team with legal opinions during their investigations.
“I took the decision that, subject to two conditions, I was prepared to appoint Mr Ngidi as one of the lawyers who would assist one of the teams of investigators on legal issues on which the investigators may need legal advice during the investigations,” Zondo said.
These were that Ngidi subject himself to a security clearance process and be issued with a security clearance certificate and that “further inquiries during that period did not reveal anything that would make his appointment inappropriate”.
To the best of his knowledge, he said, the security clearance process had not taken place.
He had also asked Ngidi for his comments in response to “something which has since been brought to my attention”.
“I await his comments on that issue,” Zondo said.
He was “not aware” of the Nkandla-related issues and had also asked Ngidi for comment on the issues regarding the Nkandla report raised by the M&G in written questions last week.
As a result, “the appointment process that must be completed before a final decision is taken whether or not Mr Ngidi is appointed has not yet been completed”.
Ngidi had served on the Alexander commission into taxi violence in KwaZulu-Natal in 2001 and was appointed by Premier Willies Mchunu to the Special Reference Group on Migration and Community Integration in KwaZulu-Natal in 2015. The panel was appointed to investigate the wave of xenophobic attacks in Durban and other parts of KwaZulu-Natal.
In 2009, Ngidi was appointed chairperson of the board of Ezemvelo KZN Wildlife and was also board chairperson of the South African Maritime Authority.
He was retained in 2013 by the National Prosecuting Authority to investigate alleged irregularities in the office of KwaZulu-Natal director of public prosecutions Moipone Noko.
In March 2016, he was appointed by the then energy minister, Tina Joemat-Pettersson, as a member of the board of Sanec.
Ndigi recently acted for axed Hawks boss General Berning Ntlemeza in his unsuccessful high court battle with former police minister Fikile Mbalula.
The state capture commission was appointed as a result of Madonsela’s State of Capture investigation into allegations of state capture by the Gupta family using its influence over Zuma.
In her remedial action, Madonsela recommended that Zuma establish a judicial inquiry, headed by a judge appointed by the judge president, to investigate the allegations.
The commission, which held its first sitting this week, is expected to hear evidence on Friday from former deputy finance minister Mcebisi Jonas about his claim that he had been offered a bribe of R600 000 in cash and a R600-million payout by Ajay Gupta to accept the post of finance minister. Jonas has previously stated that Zuma’s son Duduzani had been present at the meeting at which the bribe offer was made.
Jacob Zuma’s counsel, Muzi Sikhakhane, told the commission his client needed time to make a “meaningful contribution”.
Zuma had been given notices relating to evidence presented to the commission by former ANC MP Vytjie Mentor and government officials Themba Maseko and Phumla Williams.
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