It is a great pity that the amount of time Professor Thuli Madonsela was able to spend at the Beyond State Capture and Corruption conference at Century City celebrating the 28^th anniversary of the speech that launched the new SA was so limited. She was spirited away to Stellenbosch in a great rush, presumably to attend to her new duties as professor of social justice in that university town.

Getting beyond state capture and corruption is vital to the survival of the new constitutional order in SA. The rule of law, the separation of powers, the independence of the judiciary and the freedom of the media are all essential ingredients of a successful democracy. There was insufficient time at the conference to get to grips with some of the issues on which our much loved former Public Protector is in a position to give first-hand input of value.

The Nkandla scandal is not the biggest instance of corruption to blight the political landscape in SA. It is however one that has received the attention of the highest court in the land. It is now reported that Jacob Zuma says he has done nothing wrong and has “paid back the money” as ordered by the court. He uses these arguments to resist suggestions that it is time for him to step down as President.

The difficulty with the Nkandla judgment is that it in effect requires Zuma to pay back less than R8-million on a procurement that cost the taxpayer R246-million. It is so that genuine security upgrades are for the taxpayers’ account and that over-pricing is recoverable from those responsible for it. There are pending proceedings against the architect employed by Zuma on the project.

However, somewhere between cup and lip, there has been a slip. The Secure in Comfort report makes it crystal clear that only security enhancements are for the account of the taxpayer. All manner of home improvements, landscaping, paving and air-conditioning that are by no stretch of the imagination “security enhancements” are in evident at Nkandla. But, none of them feature in the court order. This is clearly a mistake. Courts do make mistakes and their rules allow affected parties to apply to correct them. In the Nkandla litigation the affected parties are the Office of the Public Protector, the EFF and the DA. None of them has lifted a finger to correct the error. “Why not?” is a question that is troublesome at the legal, political and administrative levels. As a professor of social justice, Adv Madonsela will know that equality before the law is an important component of the Bill of Rights; one which advances social justice.

Then there is the question of the remedial action Madonsela took in the State of Capture report. Asking the Chief Justice to select the commissioner for the required commission of inquiry into state capture and telling the president what the broad, perhaps over-broad terms of reference must be are both novel steps which ought to have been taken after careful consideration of the applicable law, both constitutional and comparative, to ensure that both steps are “appropriate” as is required by the provisions of section 182(1)(c) of the Constitution. It can never be “appropriate” to require that illegal steps be taken in the process of setting up a commission of inquiry. Not only does this render the inquiry vulnerable to attack by those who would prefer that it not take place, the mere taking of irregular steps tarnishes the “impartiality, dignity and effectiveness” (section 181[3]) of the Office of the Public Protector.

The President himself took the State of Capture report on review, contending that he and he alone has the power to establish a commission of inquiry and that it would not therefore be appropriate for the Public Protector to direct him to do so.

It is true that the Constitution confers the power to appoint a commission of inquiry upon the President. However, the Constitution also provides that when a president is “unable to fulfil the duties of president” then the deputy president should act as president. If the whole Cabinet is unable to act, the Speaker can. This is all clearly set out in section 90.

The Constitution also, very properly, enjoins members of the Cabinet (including the president) not to:

“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, or, use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.” (Section 96[2])

Read together, sections 90 and 96 could be construed to mean that any president at risk of a conflict of interests should not be allowed to act. This is conceivable in the most innocent of circumstances. For example, if a president’s child serves in the diplomatic corps and applies to become an ambassador, the president concerned would ask his deputy to make the appointment in his place due to the risk of a conflict of interests should the child be the successful applicant.

The State of Capture report correctly points out that President Zuma would be conflicted in relation to the appointment of the commission, but it makes no reference to the provisions of sections 90 and 96, which could have been used to direct the Deputy President to take the remedial steps desired in the report. Why this was not done is still an unexplained mystery. Perhaps the erstwhile Public Protector reads the words quoted from section 90 and 96 above differently.

The very notion of getting the Chief Justice to select a judge as commissioner offends the doctrine of the separation of powers. The Chief Justice heads the judiciary. The President heads the executive. The separation of powers means that the Chief Justice should not fulfil executive functions, such as selecting the judge for the commission desired by the Public Protector. Was the separation of powers considered when the remedial action was formulated? It appears not.

More fundamentally, the appropriateness of passing the buck to a commission due to lack of resources in the OPP is also questionable. At this stage so much is public knowledge that a fact finding mission seems unnecessary.

Having captured the OPP after the end of the term of office of Madonsela (who was most definitely not captured), the President argued in the review that the matter should go back to the OPP for the necessary investigation. Certainly, appointing a commission of inquiry is generally a matter within the discretion of the President. Here, a situation has arisen in which an investigation is, or perhaps was, needed. The OPP is short of resources to do the necessary. A request for more resources is only partially met. The duty of the OPP to investigate complaints of maladministration is thus thwarted.

The ability of the dysfunctional criminal justice administration to investigate all instances of criminality in the state capture is compromised. So much so that little effort is put into criminal complaints and even less pro-active investigation is in evidence – until recently in the early rays of the buffalo spring. The criminal cases have by now gone cold. The cell phones have mysteriously been lost, the hard drives thrown into the sea, the hard copies of everything are shredded and the funds misappropriated are long gone, on fast cars, slow horses and loose living.

Publicly announcing the intention of the Assets Forfeiture Unit to seize assets, in advance of the actual seizure, means that only those who want to have their assets seized are suitable targets. The rest have concealed their ill-gotten gains somewhere around mid-October 2016.

The propriety of the Public Protector’s modus operandi in getting the Chief Justice involved at all and in setting flexible terms of reference herself is currently on appeal. President Zuma has not abandoned the appeal and in announcing the commission (no doubt under some political pressure) seems to have reserved his right to proceed with the appeal. He knows and has been advised that the legitimacy of the commission will be assailed by those who prefer not to supply it with information whether documentary, electronic or by way of evidence. That litigation will complement his appeal.

To further complicate matters, the same court which ordered the President to get on with the implementation of the remedial action set out in the State of Capture report, has directed the Deputy President to appoint a successor to the invalidly appointed National Director of Public Prosecutions, Shaun Abrahams. This was so ordered because of the conflict of interests, not merely the risk of a conflict, inherent in appointing the person who will consider presidential representations aimed at the withdrawal of 783 counts of corruption, fraud, money laundering and racketeering re-instated against the president on 13 October 2017.

The need for an independent appointee could not be clearer. However, there are appeals pending in that matter too, so the position remains legally frozen and the shorn sheep remains in office, clinging tenaciously to his position despite the demise (or was that just a setback?) of the Zuma faction at Nasrec last December.

The Public Protector is not involved directly in the Nxasana/Abrahams review but there is food for thought for her in the reasoning in the judgment in that matter. It is surely not arguable that the President does not have a risk of a conflict given his friendship with the Guptas (which he openly admits) and their employment of his son Duduzane. If it is true that the President is at the dark heart of the capture of the state, then there is an actual conflict, not merely a risk thereof.

While Abrahams continues in office, while the Hawks remain the captured creatures of the Zuma aligned faction in the ANC, while the commission of inquiry remains vulnerable to being interdicted from lifting a finger, and while Zuma stays in office, the currently ongoing capture of the state and rife corruption will continue. There is simply no incentive for the corrupt and the wannabe corrupt to desist. The culture of impunity, the failure of the criminal justice administration and the impotence of the new brooms trying to sweep clean are all going to be in evidence in the months and years ahead. The only glimmers of hope are the rapid establishment of an Integrity Commission and swift intervention by the courts in the pending appeals. The appeals should not be allowed to drag on indefinitely in the customary fashion.

It is not known whether the Public Protector considered any comparative law when formulating her remedial action in the State of Capture report. The report is silent on this topic. Had she done so, she may have hesitated in acting as she did after pondering the Privy Council decision in Rajah Ratnagopal v Attorney General, Ceylon delivered on 30 June 1969. Ratnagopal was the Gupta of his day in what is now Sri Lanka. Tender irregularities were his speciality. The point he took, successfully so, was that the commissioner was given discretion as to the scope of the inquiry in a manner that was beyond his powers in terms of the enabling legislation.

It is certainly arguable that to treat the State of Capture report as the “starting point” of the work of the Zondo commission, suffers from the same defect that the Privy Council found in the Ratnagopal matter.

All in all, there is a ghastly mess in which the contradictory decisions in the Nxasana review and the review of the State of Capture can be used to prolong the capture of the state and delay the bringing to book of the miscreants responsible for the scourge of corruption in the land.

If the new brooms sweeping clean in Luthuli House are serious about a deep clean on corruption, then their urgent instruction to Parliament must be to establish an Integrity Commission as a new Chapter Nine Institution. The draft legislation has already been prepared by Accountability Now. This step is more than putting plasters on the suppurating sores, it addresses the cause of the malady and enables the state to have a long-term means of actually winning the battle against corruption. It also by-passes the pending litigation and neutralises those standing in the way of combating corruption properly, be they in politics, the Hawks, the private sector or the prosecution service. DM

Paul Hoffman SC is a director of Accountability Now