'You are not his mouth' – The day Madonsela tried to corner Zuma

2019-06-27 23:26
Judge Raymond Zondo (Deaan Vivier, Netwerk24)

Judge Raymond Zondo (Deaan Vivier, Netwerk24)

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On October 6, 2016, then Public Protector Thuli Madonsela summoned all her experience, calm and maturity to try and conduct a formal and productive interview with Jacob Zuma, who was president and the central figure in allegations around state capture.

It wasn’t easy for the normally unflappable Public Protector, who had struggled for months to get an audience with the head of state. She had been blocked and thwarted at almost every turn, and now had to contend with Michael Hulley, Zuma’s legal contortionist, too.

After Madonesela explained the context and legal implications, Hulley launched into arguments why the interview with Zuma should not go ahead. He explained that the time given to his client to consider the allegations made against him was inadequate and that he wanted to respond to them substantively.

Zuma, Hulley argued, also has not had sight of the evidence brought against him and would need to look at it before formulating a response.

Also, the president’s progam was very full and his legal team couldn’t consult with him as they would have wanted. And why the urgency, Advocate Madonsela? Why not leave it to your successor, Advocate Busisiwe Mkhwebane? No need to rush it, Hulley argued.

It was early days in the exchange, and Madonsela still had great hope of getting Zuma’s side of the story. She countered by setting out the difference between an accusatory and an inquisitorial legal process (which that was), what the chronology and timeline was in between the first letter to the Presidency and the last and what the mandate of the Public Protector entailed.

But then the debate went pear-shaped. Hulley chose to question Madonsela’s motives, asking her why it was so urgent for her to finalise the matter before she left office. Besides, the new Public Protector could surely finalise the complaints? (The transcript gives us an idea of the tension in the room at that point.)

Mr M Hulley: Well, maybe we should just cut to the chase and find out why there is a rush? With respect let’s find out why it is that you are rushing it out of your own (indistinct – speaking simultaneously)?

Adv T Madonsela: I’m rushing it because I’m the Public Protector until the 14th of October. I’m rushing it because I am supposed to have finished this matter within 30 days. I’m rushing it because I have institutional memory relating this case.

Hulley continued, pushing for the task to be left to Mkhwebane, but was slapped down by Madonsela, who asked him: “Why are you so persistent on having the new public protector complete the case? But I don’t even want you to answer it…”

And then she turned to Zuma, who by that time had not uttered anything beyond greetings.

“We asked President Zuma to respond. We asked you, sir, 22 March to respond to the issues that are being raised. That was April, May, June, July, August, September… seven months. There were seven months for us to receive a version of the president,” an increasingly frustrated Madonsela said.

The president’s man persisted. Zuma did not have enough time nor did he have access to the particulars of the allegations against him. He cannot participate, Hulley said.

By this time she had enough and addressed Zuma directly, “I am concerned though that president, you are the president of the Republic of South Africa and you are employee number one. Normally when we are dealing with people who are responsible for the state, we deal with them and the lawyers they come in where necessary, because it is you who is accountable, sir. It is you who is employed by the state as its most important employee and then you employ the rest.”

After a short adjournment Zuma spoke for the first time and declared: “Yes, now I think as you made the point that matter is about me and my advisors are employed to advise me, I’m definitely willing to answer the questions, because I have now come to know that I am implicated.”

But as the meeting drags on, it becomes clear that Zuma is anything but willing to answer any question. And Hulley keeps banging on the urgency issue, with Zuma saying he needs legal representation, not mere assistance.

“All I’m asking for,” Madonsela says, “Those answers can’t change with legal advice, they can’t. The president will tell me the honest fact of why he removed Mr. Nene and why he appointed Mr. Van Rooyen?”

Then, again turning to Zuma, she said, “Sir, why do you need a lawyer to advise you, because the lawyers advised you before you did that (firing Nene)?”

And later, Hulley: “I think my instructions are in this matter to convey to you that the president does not want to participate.”

Zuma added that he doesn’t want to implicate himself in giving reckless answers and that he needs time to consider the issues and allegations. And he also wants the questions in advance, before being interviewed – a request Madonsela declined.

And then, this exchange:

Adv T Madonsela: Okay, perhaps I should ask one question, sir. Would the answers that you give me, after I have given you an opportunity to reflect, differ from the answers that you have given to the media or any other person who has ever asked you about the issues of Jonas, Mentor, Maseko and Guptas?

President Zuma: No, they would not differ.

Adv T Madonsela: Would you offer a different answer?  

President Zuma: No, I would not offer a different one. I wouldn’t offer a different one.  

Adv T Madonsela: So why do you want to defer it then if you are going to give me the exact answer you have given to the media?  

President Zuma: No, as I say, giving an answer to a journalist or to somebody is different than giving an answer to a Public Protector.  

Adv T Madonsela: That is why I was asking sir, if it would differ from the one you have  given to the media? If it won’t differ, what then would change from today to the time we have that interview, if you are going to give me exactly the same answer you have given to the media or any other person has ever asked you about these matters?

President Zuma: Well, I don’t know how to answer it again, because I say...

Adv T Madonsela: I’m trying to understand you, Sir.

President Zuma: No, if I give an answer to a friend or to a journalist I can phrase it anyway, saying exactly the same thing, but the words I use there, if it is the public protector might say, “But what did you mean by this word?” as you phrase your question. The public protector has got to consider this at the end and take a decision.

After two consultation breaks and four hours of arguments, Madonsela had enough. She declared that the interview will go ahead, as per the laws that govern her office, but Hulley – for the umpteenth time – objected.

“Please can you not stop... can you stop talking for the president?” Madonsela angrily replied.

“Mr. Hulley, I’m forbidding you from speaking. I’m not giving you an opportunity. I’m asking Mr. President to address me. He is the ... No, sir, you are here to support Mr. President, but President Zuma is the one who is employed by the state of South Africa in this capacity.

“You are employed as his advisor, but not as his mouth.”

The meeting eventually petered out, with Madonsela forced to agree that Zuma will prepare an affidavit and that it will form the basis of another interview, scheduled for a couple of days after this one – and ever closer to the end of her tenure and the start of Mkhwebane’s.

In the end Zuma cancelled the meeting and never provided her with an affidavit.

At paragraph 5.28 in Madonsela’s report into state capture she wrote: “I met with the president on 6 October 2016 to solicit his response to the above allegations. He did not respond to my questions.”

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