The Democratic Alliance (D.A) activist protest outside the State Capture Commission during the testimony of President Ramaphosa on April 28, 2021 in Johannesburg, South Africa. President Ramaphosa testified in his capacity as President of the country. (Photo by Gallo Images/Papi Morake)
The Johannesburg high court on Tuesday struck an eleventh-hour bid by Democracy in Action to interdict the Zondo commission from handing its report on state capture to President Cyril Ramaphosa from the roll with costs.
Judge Avrielle Maier-Frawley said she was dismissing the application for self-created urgency and failure to adhere to the practice directives of the court on urgent application, and would hand down her full judgment next Monday.
Her ruling came an hour after the matter was pleaded, and three and half hours before Acting Chief Justice Raymond Zondo was due to formally present a printed copy of the first of his three-part report to Ramaphosa at his Union Buildings offices.
Counsel for the respondents submitted that the first part of the report had already been sent to the president, rendering the application moot, and put paid to any urgency.
But Democracy in Action countered that this was not the case, because there were two more instalments to follow. Advocate Nelson Khoza said placing the application on the normal court roll would defeat its purpose because, by the time it was finally heard, all three parts would have been handed to Ramaphosa.
“At that time the third respondent will have sight of all three reports that will be submitted to him,” he said.
He argued that his client had no choice but to turn to court after the commission ignored two letters sent to it, the first dating back to 2020, to raise its objections to Ramaphosa receiving the report.
It believed that the application raised matters in the public interest and of constitutional importance because the president “is conflicted” and had been implicated in the corruption scandal by several witnesses.
It should therefore be handed instead to Deputy President David Mabuza or public protector Busisiwe Mkhwebane, or to both of them, Democracy in Action founder Thabo Mtsweni said in his founding affidavit.
Counsel for the Zondo commission, advocate Tembeka Ngcukaitobi, pleaded that the application was an abusive instance of self-created urgency, and political posturing.
“We are dealing with both a reckless and a frivolous challenge,” he argued.
Ngcukaitobi gave a timeline of the establishment and work of the commission to illustrate that it had been known for years that, first, the report would be handed to Ramaphosa and, second, that he might be implicated by witnesses.
“It was known on the 2nd of November 2016 that the report would be presented to the president,” he said, adding that it became public knowledge in March 2019 that allegations against him may emerge during its investigations.
He said that Ramaphosa submitted his own affidavit to the commission and then, in January last year, former Eskom and Transnet chief executive Brian Molefe took the witness stand and accused Ramaphosa of being party to state capture.
That the report would be handed to Ramaphosa in person was reiterated every time the commission came to court to seek an extension of its mandate, Ngcukaitobi said, hence there was no need to run to court urgently on the eve of the fact.
He stressed that Democracy in Action filed its court papers at 2pm on Monday, and the applicant’s replying affidavit received on Tuesday failed to educate the respondents as to why the matter was brought on extremely short notice.
Turning to the central argument of the applicant — that Ramaphosa is an implicated party — Ngcukaitobi said there were clear legal grounds why he was entitled to receive the report.
The first was that there was a binding directive from former public protector Thuli Madonsela, who ordered a commission of inquiry be set up to probe state capture, that its report should be handed to the president of the country.
“And that remedial action was taken with president [Jacob] Zuma in mind, who was a conflicted party. Despite the fact that he was a conflicted party it was decided then that he should receive the report, so even where there was a clear case of a conflict, president Zuma was still entitled, under the remedial action, paragraph 8.8, to receive the report,” Ngcukaitobi said.
Second, under law, the president appoints commissions of inquiry, even if here, exceptionally, the chairperson was appointed at the recommendation of the chief justice, given Zuma’s conflict, and therefore in law he was the only person who could receive the report.
“There are, in fact, no legal grounds to this application; it is pure political posturing,” he said.
“The argument that we have heard today is quite shoddy, so is the founding affidavit; it is shoddily drafted.”
In passing, he cast doubt on the credibility of Democracy in Action.
“It purports to be a public interest organisation. It is, in fact, unclear if it is a genuine public interest organisation.”
Molefe last year told the commission that Glencore was banking on Ramaphosa’s political influence to help it extract exorbitant coal prices and penalty waivers from Eskom after acquiring the Optimum coal mine without doing due diligence.
Ramaphosa rejected the allegations.
In December, Zondo secured a high court order allowing him to deliver the first draft of his long-awaited report this week. The second is due at the end of the month and the final document due at the end of February.
It is expected that those implicated will file a raft of court challenges to his recommendations.