Quite apart from the standard of executive ethics which the law requires of all Cabinet members, including the President, the Constitution itself requires that they must not:

“… expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.

This requirement is included in section 96 of the Constitution.

The manifestation of a tidal wave of what Jimmy Mzwanele Manyi likes to call “Guptaphobia” in South Africa is an indication that President Jacob Zuma’s leadership of the country as head of state and head of the national executive may be compromised, if not by his own relationship with the Guptas, then that of his family. His son serves on the board of Gupta companies and they are doing a great deal of business with the state and with State-Owned Enterprises. Whether these phenomena amount to state capture is a burning and deeply divisive issue in the country. That they place the President in a conflict of interest between his official and private interests, one that is intractable, seems to be obvious.

One of the powers of the President is to appoint commissions of inquiry. They are intended to throw light on the darker corners of society and to advise government on the intricacies of any given situation or issue that may require the type of expert and detailed investigation that the judiciary has the capacity to deliver and those busy governing do not have the time to undertake. A good example is the Marikana Commission of Inquiry chaired by retired judge of appeal Ian Farlam.

However, any president who finds himself part of the subject matter of an inquiry into serious malfeasance is, due to the conflict of interests involved, unable to act so as to do his duty by appointing the necessary commission of inquiry. The mere existence of the conflict precludes the President from acting; to do so would be to make him coach, selector, player and referee in the same game of football.

After the Jesuits and the Democratic Alliance complained to the Office of the Public Protector about alleged state capture, the previous Public Protector, Advocate Thuli Madonsela, having been partially unsuccessful when she applied for extra funding for her investigation of the complaints, published a report called “The State of Capture Report” on 14 October 2016 in which the following recommendations were made to the President:

“8.2. The investigation has proven that the extent of issues it needs to traverse and resources necessary to execute it are incapable of being executed fully by the Public Protector. This was foreshadowed at the commencement of the investigation when the Public Protector wrote to government requesting for resources for a special investigation similar to a commission of inquiry overseen by the Public Protector. This investigation has been hamstrung by the late release which caused the investigation to commence later than planned. The situation was compounded by the inadequacy of the allocated funds (R1.5-million).

8.3. The President has the power under section 84(2)(f) of the Constitution to appoint commissions of enquiry however, in the EFF vs Speaker of Parliament the President said that: “I could not have carried out the evaluation myself lest I be accused of being judge and jury in my own case”.

8.4. The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President.”

In prescribing remedial action of the kind set out in paragraph 8.4 above the Public Protector sought, in a novel manner not contemplated by the Constitution, to resolve the conflict of interest in which the President finds himself due to what Julius Malema has dubbed the “Zupta” characteristics of his and his family’s relationship with the Gupta family of well-connected immigrant businessmen who have taken up residence in a compound in Saxonwold, Johannesburg.

The President has taken the State of Capture Report on review. If that review is ever finally determined in the courts, some years from now, issues relating to the separation of powers and whether it is appropriate to ask the Chief Justice to step in as required by the Public Protector may have to be resolved. The issues in the review may however become moot if the provisions of the Constitution are properly harnessed. Indeed, much of the current politically based litigation may prove to be unnecessary, thus relieving the courts of the burdens of running the country because the legislature and executive are alleged to be failing to do so in a constitutionally compliant way.

Some senior members of the ANC NEC have been pondering the impasse, the protests, the litigation and the need for renewal. In April 2017, the Deputy President, Cyril Ramaphosa, and our recently dismissed former Finance Minister, Pravin Gordhan, have both publicly let it be known that they support the idea that there be a commission of inquiry into the topics which form the subject matter of the State of Capture Report.

It seems that in making her recommendations the former Public Protector may have overlooked the provisions of section 90 of the Constitution, or perhaps she misinterpreted them. The drafters of the Constitution foresaw the situation that has arisen in relation to the alleged capture of the state by apparently feral members of the executive and made provision for the Deputy President to act when the President is unable to fulfil the duties of President. Shorn of excess verbiage, the section says that:

“When the President is … otherwise unable to fulfil the duties of President … the Deputy President … acts as President.”

The President is clearly unable to act to appoint the necessary, and desired, commission of inquiry due to his conflict of interest. The provisions of section 90 of the Constitution empower the Deputy President to act in his place. This is an original power conferred by the Constitution itself and not by the President or anyone else for that matter. The Constitution is our supreme law and any conduct inconsistent with it is invalid.

The Deputy President is legally free to make his wish for a commission of inquiry come true by appointing a retired judge or judges to unravel the material in the State of Capture report, material which, prima facie, reveals a situation that is in need of urgent remedial attention, whether or not the allegations of state capture are true.

But what if the President, the Cabinet, the National Working Committee and the National Executive Committee of the African National Congress are sufficiently “captured” to instruct the Deputy President not to so appoint? An instruction of this nature would obviously be given to protect the President against having to account for the ins and outs of his relationship with the Guptas and would be aimed at allowing the capture of the state to be continued and perhaps completed.

In these circumstances the constitutional duty of the Deputy President and his oath of office preclude him from following any political instruction or party directive to desist from appointing the commission of inquiry both he and former minister Pravin Gordhan have indicated they want.

Accordingly, given the dire need for clarity on the matters traversed by the Public Protector, the Deputy President should desist from delaying in the appointment of a commission of inquiry by getting the retired judges to work efficiently and effectively on the issues that are covered in the State of Capture Report.

Should the Deputy President refuse or fail to take the steps necessary to appoint a commission of inquiry he may be compelled to do so by way of an urgent application to the Constitutional Court for an order directing him to so appoint and declaring the President intractably conflicted, should the President contest that he is indeed conflicted. It will be required in those proceedings to join the President himself as an interested party. If he opposes the matter unsuccessfully he should be ordered to pay costs out of his own pocket on a suitably punitive scale.

The situation is not unlike the one which arose after Presidents Mbeki, Motlanthe and Zuma all successively during their respective terms of office failed to appoint a commission of inquiry into the arms deals. An urgent application to the Constitutional Court had the desired effect on that occasion.

Those with long memories will recall that the presidency of Advocate John Vorster ended after a commission of inquiry fingered him. Vorster was implicated in the Muldergate scandal and resigned the premiership in favour of the then ceremonial presidency, which he was forced to give up as well eight months later. There is a prospect that old South African history may repeat itself in the new dispensation once the inquiry has run its course.

All of the other efforts that are currently under way to dislodge the President are either ineffectual or are bogged down in long-running litigation in which appeals after appeals are lodged. The review of the withdrawal of 783 serious charges against the President was started in April 2009; it has yet to reach finality on appeal.

One point is beyond dispute: the country needs to break free from the political log-jam in which it finds itself; it needs to recover from junk status economic ratings as soon as possible and the quest for a better life for all needs to be resumed in the process of political renewal that even the good people in the ANC itself are crying out to see unfold. Jessie Duarte, one of the six top office-bearers in the ANC, has called for renewal and for corruption to be dealt with by “viciously and relentlessly booting them out”. If the unthinkable has happened and the state has been partially captured by team “Zupta”, urgent patriotic action is required and is readily available to the Deputy President. A commission of inquiry is best placed to resolve the issues that state capture raises and that hang over from the last Glenister case in which, as Justice Froneman observed in a minority judgment:

“[Glenister] tried to show that the corruption at the very centre of our political life is so pervasive that the unthinkable may be true: our elected Government is trying to undermine the independence of our constitutional institutions in order to attain its own unconstitutional aims.”

Bob Glenister’s attempt to show the pervasiveness of corruption took place long before allegations of state capture came into vogue. His case was finally adjudicated in November 2014 and his founding papers were prepared late in 2012. The reports by Prof Gavin Woods of Stellenbosch University and Gareth Newham of the Institute for Security Studies are worth revisiting in any inquiry into the possibility of state capture in SA.

The 20/20 vision that hindsight gives the acute observer would suggest that Glenister was right to raise his concerns and the majority of the court was wrong to dismiss them as “odious political posturing”. The threat that possible and even partial state capture poses to constitutional democracy under the rule of law in our multiparty system informed by openness, accountability and responsiveness must, for the sake of a better future for all, be seen off as soon as is humanly possible. The alternative is too ghastly to contemplate, as Vorster himself once said.

Chris Jones of the University of Stellenbosch has recently recorded that:

“At the moment South Africa is paying a very high price for the lack of moral leadership. This is true in relation to its economy, politics, education, social security, service delivery and health services because certain influential politicians got stuck in a twisted first drive of self-enrichment – and bling.”

It is sincerely to be hoped, and prayed, that Cyril Ramaphosa is not so stuck as to be paralysed. It is up to the Deputy President to do his duty. His power to appoint a commission is an official duty; his position within the ANC structures is a private interest. His official duties, his oath of office as well as his moral and ethical obligations will always trump his private interests if he remains true to upholding the Constitution he helped draft. A commission of inquiry is needed now: it’s time. DM

Paul Hoffman SC is a director of Accountability Now and author of “Confronting the Corrupt”.

Photo: (Left) SA president Jacob Zuma in Parliament in Cape Town, South Africa, 17 March 2016. EPA/SUMAYA HISHAM. (Right) Former Public Protector Thuli Madonsela (Greg Nicolson/Daily Maverick)