By BO Staff Writer
Those implicated in the Public Protector’s Report on State Capture have been accused of being recalcitrant witnesses for simply insisting on exercising their right to a fair hearing which includes their right to cross examine witnesses. To this end those implicated are now urged via the Public Protectors Report (and by those supporting it) to utilize the remedial action of a Judicial Commission of Inquiry to indicate their versions and to answer to the allegations against them. This will require the President to comply with the Public Protector’s remedial action relating to the appointment of a Judicial Commission of Inquiry. In this regard it is argued that if those implicated approach the Court for a review of the said report with a view to setting the Public Protectors report aside, it will suggest that they have no substantial evidence to present in rebuttal of the evidence of those implicating them (Pierre de Vos in State Capture: When does President Zuma’s silence become an admission of wrongdoing?)
How damning is the evidence against the implicated?
There’s a claim that the Public Protector’s Report contains compelling evidence by, for example Vytjie Mentor, Themba Maseko and Mcebisi Jonas directly implicating President Zuma in the contravention of the Executive Members Ethics Act and the Prevention and Combatting of Corrupt Activities Act and other persons in the commission of other crimes.
It must be asked, how damning is the evidence against the implicated persons if certain crucial questions, including the following, have not been posed to Mentor and Jonas for their respective responses:
1. Why has Vytjie Mentor kept quite (about 5 years) on such a serious matter for this long? Also why did Mcebisi Jonas not report the matter to the ANC immediately after being approached by the Guptas as alleged by him?
2. Why have both Mentor and Jonas not charged the Guptas for corruption for their offer of a ministerial position to each of them?
3. Why make such serious complaints/ declarations outside the processes of their organizational structure? To this end, why not follow the grievance or disciplinary process of the ANC?
4. What was Vytjie Mentor doing at the Gupta family home? (Doesn’t she say they are corrupt?).
5. Who invited Vytjie Mentor to Saxonwold?
6. Since they are both senior members of the ANC, have they at least complained to their organization?
7. Do they both believe that President Zuma was aware of what was said between each of them and the Guptas?
Moreover, Minister Des Van Rooyen’s seven visits, one being on the eve of the firing of Finance Minister Nhlanhla Nene, is also suggested as material evidence implicating President Zuma. To this end the Public Protector has indicated that this evidence is suggestive of President Zuma sharing information with the Guptas concerning the appointment of cabinet ministers which in turn is a violation of section 2.3(e) of the Executive Ethics Code which prohibits such conduct.
Non-compliance with Section 7 (9) of the Public Protector Act 23 of1994
The report identifies certain issues for investigation and makes particular observations thereon under the categories “[a]lleged breach of the Executive Member Ethics Act, 1998” and “[a]warding of contracts by certain organs of state to entities linked to the Gupta family”.
Regarding all the issues raised in the said report – the allegations on which each issue is based was not tested by cross examination by the person(s) implicated and to this end no allowance was made, amongst other things, for the implicated persons to each put his/her version on record and to cross examine witnesses. In this regard the implicated persons each had a right to a fair hearing.
It must be stated that Section 7 (9) of the Public Protector Act 23 of 1994, which relates to “(i)nvestigation by Public Protector”, provides as follows:
“(9) (a) If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that may be expedient under the circumstances.
(b) (i) If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.
(ii) Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section”
One has to ask, how did the Public Protector analyze and weigh the untested evidence before her in the context of her non compliance with the provisions of section 7(9) of the Public Protector Act which has effectively led to the violation of the fundamental rights of the implicated persons? To this end the implicated persons were barred from questioning other witnesses who have appeared before the Public Protector; not given access to all the evidence collated during the investigation so as to enable them to answer to the allegations against them; and not given the opportunity to cross examine all the relevant witnesses who had given evidence to the Public Protector in the course of the investigation. Had the implicated persons been given the opportunity to be heard, the remedial actions of the Public Protector which are based on untested evidence could certainly have been avoided.
Section 7(9) of the Public Protector Act draws from and is based on the legal legacy of section 35(3)(j) of the Constitution which in turn provides that every accused person has a right to a fair trial. In this regard that the Public Protector, by denying the implicated persons theirs rights in terms of Section 7(9) of the Public Protector Act, has flouted the requirements of all applicable legislation.
There is however a suggestion that due to time and financial constraints there was non compliance with section 7(9) of the Public Protector Act.
Notwithstanding these constraints (let’s accept that there were time and financial contraints for arguments sake) lack of substantial compliance with the provisions of section 7(9) of the Public Protector Act amounts to a material irregularity in the relevant investigative proceedings. Quite clearly the rights of the implicated person(s) in terms of Section 7 (9) (a), (b)(i) and (b)(ii) of the Public Protector Act have been violated. The concerns and pronouncements expressed by the Public Protector regarding the issues raised by her were accordingly baseless and/or speculative.
Several adverse inferences and or findings have been made against the President and the other implicated persons such as Des van Rooyen and Brian Molefe. The fact that this was done by the Public Protector without due compliance with section 7(9) of the Public Protector’s Act (which in turn suggests non performance of her required legal duties) is a strong ground for a review and the setting aside of the report. Moreover the fact that the Public Protector had given assurances to certain implicated persons such as the President, van Rooyen and Brian Molefe that her report did not contain any adverse inference or finding regarding them when in fact the report reveals otherwise, indicates that she has lied. It also suggests perjury on the part of the Public Protector. Regarding the assurance given to President Zuma this is what the Public Protector said:
“On 11 October 2016 I wrote a letter to the President in response. I reassured him that I had, to date, not concluded my investigations into this matter and had made no adverse finding against the President” (”State of Capture” Report under the subheading “Legal interactions between myself and persons implicated in the investigation: President Zuma”).
Coming back to the negative inference(s) regarding van Rooyen – the Public Protector had assured van Rooyen via his initial High Court application instituted on 14 October 2016 that the relevant report did not have any adverse finding or inference against him. This led to van Rooyen withdrawing the said High Court application in terms of which he sought to interdict the former Public Protector from releasing her report.
However on Sunday 30 October 2016, the Sunday Times reported that van Rooyen had visited the Gupta family house on 7 occasions. This triggered van Rooyen into launching another High Court application interdicting the former Public Protector from releasing her report on state capture. He was subsequently given another assurance by the former Public Protector that there is no adverse finding against him in the said report and to this end he is not implicated in any negative way.
Evidently, the Public Protector’s finding in her report that van Rooyen “can be placed at the Saxonwold area on at least seven occasions including on the day before he was announced as Minister” and that “(t)his looks anomalous given that at the time he was a Member of Parliament based in Cape Town” amounts to a suggestion that van Rooyen was captured by the Gupta family. This is clearly an adverse finding on the part of the Public Protector being drawn from negative inferences and indeed contrary to her assurances to van Rooyen.
The many broken assurances by the Public Protector, which in turn amounts to perjury as elaborated above, strikes at her credibility and to this end the reliability of her report.
Court of public opinion
A further suggestion that the implicated persons should not take the report on review but should instead state their cases to the public for adjudication indicates a blatant disregard for the established legal processes and adherence to the Rule of Law.
Judicial Commission of Inquiry at instance of the President
The concern that if the report is set aside on review it will result in the implicated persons being absolved from the responsibility of having to answer the allegations against them before a Judicial Commission of Inquiry, can easily be addressed. To this end a Judicial Commission of Inquiry can be instituted by the President with wider terms of reference than that contained in the current “State of Capture” report so as to include an investigation into state capture by white capital. This will entail a new investigative process, in line with what is required of a Judicial Commission of Inquiry, being conducted.
On 31 March 2016 Black First Land First (BLF) wrote to the Presidency and requested a Judicial Commission of Inquiry into “state capture” by white capital. In this regard a thorough inquiry into the involvement of Johann Rupert; Maria Ramos; Colin Coleman; Stephen Koseff; Mark Lamberti; Ian Kirk; Bobby Godsell; Johan van Zyl; and Johan Burger was called for in respect of, amongst other things:
1. “The subversion of the Constitution as well as all the Arms of State including the Legislature in terms of which the President is accountable to – through the people”;
2. “Illegal usurpation of the constitutional and other legal powers of the President”; and
3. “The firing of Des van Rooyen and the hiring of Pravin Gordhan as Minister of Finance”.
The President is accordingly well advised to institute a Judicial Commission of Inquiry (at his own instance) with the extended terms and conditions as suggested above.
Breach of “Doctrine of Separation of Powers” and conduct inconsistent with the Constitution
Section 84(1) (f) of the Constitution indicates that “appointing commissions of inquiry” is one of the Powers and functions of the President. The remedial action indicated in the “State of Capture” report instructing the President to within 30 days appoint “a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the President” amounts to a breach of the doctrine of separation of powers. The further instructions by the Public Protector to the President via her remedial action includes giving the judge selected by the Chief Justice “the power to appoint his/her own staff and to investigate all the issues using the record of [the] investigation and the report as a starting point”; ensuring “that the commission is adequately resourced”; and vesting the commission of inquiry with the “powers of evidence collection that are no less than that of the Public Protector”,
The Deputy Chief Justice Moseneke in “Separation of powers: Have the courts crossed the line?” points out as follows:
“The Constitution compels courts to declare invalid any law or conduct that is inconsistent with the Constitution”
The power of the President to appoint the Judicial Commission of Inquiry is in terms of the Consitution. To this end the Public Protector’s remedial action effectively overrides and undermines this power of the President. In this context the Public Protectors conduct as reflected in her remedial action is inconsistent with the Constitution and is likely to be declared invalid by the Court. Accordingly the provisions of Chapter 7, Section 98(7) of the Constitution are most instructive:
“[i]n the event of the Constitutional Court declaring an executive or administrative act or conduct or threatened executive or administrative act or conduct of an organ of state to be unconstitutional, it may order the relevant organ of state to refrain from such act or conduct, or, subject to such conditions and within such time as may be specified by it, to correct such act or conduct in accordance with this Constitution.”
It is clear from a perusal of the report that it is not in accordance with justice and that it should therefore be set aside on review by the appropriate authority.