President Jacob Zuma was always going to take Thuli Madonsela’s report on review. Zuma and his allies are implicated in allegations of corruption against the Gupta family. And the former public protector had proposed something new. She said that because of Zuma’s conflict of interest, her proposed commission of inquiry should be established by an independent party. What was surprising, however, was the new public protector’s response.

In her answering affidavit to Zuma’s review application, Mkhwebane noted how Zuma wanted to appoint this inquiry like any other. He wants to be able to choose who presides over the commission, its terms of reference and timelines, as the president normally would do when inquiries are appointed.

Mkhwebane said, “It would not be permissible for the president to retain control over these aspects of the commission. He is precluded from doing so because he is personally implicated in the allegations to be investigated by the commission. He has an alleged financial and personal interest in the resolution of those allegations.”

The public protector said the complaints that related to the State of Capture report directly implicated Zuma, including all seven alleged breaches of the Ethics Act. The president could have violated his obligations to avoid conflicts of interest and may not have acted in line with his duty to avoid those conflicts of interest.

Mkhwebane said section 96 of the Constitution precluded Zuma from appointing and deciding on the commission’s mandate. Section 96 concerns the conduct of Cabinet ministers and their deputies and says they can’t “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

Zuma’s review application claims that Madonsela’s recommendation that the commission of inquiry investigating the Gupta family’s influence on the state be established by Chief Justice Mogoeng Mogoeng, rather than the president, is unlawful and encroaches on the executive’s responsibilities.

The president has said he supports an inquiry into state capture, but it’s suspected he’d prefer an inquiry with a broader mandate to investigate a wide range of allegations and not just those against the Guptas. An inquiry’s terms of reference, time frame, funding and appointed leaders essentially determine its work. Mkhwebane said it wasn’t in the public interest to delay the inquiry and Zuma’s review application was unlikely to be successful.

Madonsela released the State of Capture report as she was leaving office, only after Zuma withdrew his interdict application and thousands of people protested outside court demanding the report’s release. Madonsela said her office did not have the resources to investigate the range of allegations (she was also probably cautious that her successor may not continue the investigations) and she made “observations” rather than key recommendations. Essentially, she tried to ensure allegations against the Guptas and collaborators within the state would continue to be scrutinised independently.

Madonsela’s report suggested laws might have been violated, rather than finding the law had been broken. She noted how former Finance Minister Nhlanhla Nene was removed shortly after his deputy, Mcebisi Jonas, claimed the Guptas offered him the job in return for favours, which he rejected. Nene’s replacement, Des van Rooyen, was repeatedly in the area of the Gupta family home during the period.

The report hammered Eskom and its former CEO Brian Molefe’s cozy relationship with the family. It led to his resignation from the parastatal, a stint in Parliament, and an attempt to have him return as the power utility’s leader. Madonsela also detailed how Mineral Resources Minister Mosebenzi Zwane allegedly favoured the Gupta-owned mining company Tegeta, which also was allegedly given preferential treatment by Eskom.

Mkhwebane’s opposition to the president’s review application comes amid daily allegations of corruption involving the Gupta family and a day after her office withdrew her recommendation that Parliament amend the Constitution to change the mandate of the Reserve Bank. In court papers this week, Mkhwebane admitted that the remedial action in her report on the lifeboat given to Absa – as exposed in the CIEX report – that the Reserve Bank’s mandate should be expanded from inflation targeting to improving citizens’ socio-economic realities was unlawful.

Mkhwebane’s about-turn has led to calls for her to resign. Both the DA and EFF have questioned whether she should remain in the job, claiming that either she included the recommendation because she did not understand the law or she was acting on orders from politically interested parties. Bizarrely, her spokesperson tried to claim the public protector hadn’t got the law wrong and the problems related to the drafting of the report.

Information outlined in the #GuptaLeaks has provided far more detail on the parasitic networks the family has established with the state than Madonsela’s State of Capture report. Law enforcement agencies, however, have been reluctant to act. If Zuma’s review fails, the chief justice would be required to establish a commission of inquiry that could investigate all of the allegations against the Guptas and its conspirators, including Zuma. DM

Photo: South African Public Protector Advocate Busisiwe Mkhwebane speaks during a stakeholder meeting at the Community Hall in Masiphumelele, Cape Town, South Africa, 05 May 2017. EPA/NIC BOTHMA