State capture inquiry: Mkhwebane differs with Madonsela on terms of reference

2018-01-10 19:00
Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)

Public Protector Busisiwe Mkhwebane. (Pic: Netwerk24)

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Cape Town – Public Protector Busisiwe Mkhwebane shared a different view than her predecessor Thuli Madonsela on the terms of reference of the judicial commission of inquiry into state capture.

Mkhwebane on Wednesday welcomed President Jacob Zuma's appointment of a judicial commission of inquiry and offered her services to help develop the terms of reference of the inquiry.

Some opposition parties have already voiced their concern about the inquiry's terms of reference, and Madonsela told News24 earlier on Wednesday that the inquiry to be headed by Deputy Chief Justice Raymond Zondo may only focus on state capture allegedly committed by the Zuma and Gupta families.

READ: Commission may only investigate Zuptas, says Madonsela

It was Madonsela's last report, State of Capture, released in October 2016, which eventually led to Zuma appointing the inquiry on Tuesday evening. This, following his failed bid to have Madonsela's remedial action, that Chief Justice Mogoeng Mogoeng select a judge to head the inquiry, reviewed by the North Gauteng High Court in Pretoria.

Madonsela said she had clarity on what the terms of reference should be: what she investigated. "There is no room to expand the commission to include what was never investigated."

Zuma urged to give Zondo powers to expand probe

In a statement released on Wednesday, Mkhwebane called for a wider probe into state capture.

"In order to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the Office of the Public Protector, the Public Protector calls upon the President of RSA to ensure that the terms of reference (ToR) for the commission of inquiry are not limited to the issues investigated or identified in the State of Capture report," reads Mkhwebane's statement.

"Having perused some of the evidence at her disposal and public domain, the Public Protector also calls upon the President to ensure that the ToR are broad enough to include the capture of all state institutions and SOEs (state-owned entities), so that the ability of the commission to uncover the full extent of state capture in South Africa is not constrained in any manner."

Also read: Zuma statement shows power has shifted in ANC

Mkhwebane also called on Zuma to ensure that Zondo has the power to expand "the issues to be investigated, should any relevant evidence of state capture be brought to him during the inquiry".  

"As part of her responsibility to monitor the implementation of the remedial action, the Public Protector shall be available to assist, if necessary, in the development of the terms of reference, to ensure the full and successful investigation of alleged state capture in the republic."

'ToR must be framed as broadly as possible'

DA leader Mmusi Maimane said as the initial complainant in the State of Capture report, the party would closely monitor the commission.

Maimane said to avoid inhibiting the ability of the commission to uncover the full extent of state capture in South Africa, its terms of reference must be framed as broadly as possible to include the following:

  • The activities of the Gupta family and their relationship with President Zuma and his family;
  • All dealings by Gupta-linked companies with the state, including all SOEs;
  • The capture of state institutions, including the South African Revenue Service, the National Prosecuting Authority and the Hawks; and
  • Every other allegation outlined in the Public Protector's State of Capture

IFP MP Mkhuleko Hlengwa in a statement cautioned Zuma to not try and "rewrite" or "revamp" the terms of reference for the commission of inquiry as they have already been succinctly spelt out by the Public Protector. 

"If the president is of the view that further commissions of inquiry should be commissioned to look at any other aspects not covered by the terms of reference and mandate of this commission then, and in that event, he has the power to appoint such further commissions. He should however not attempt to muddy the water in this commission in which he is directly implicated, and we would accordingly urge his refrain in this regard," said Hlengwa.

'Truth will be revealed'

UDM leader Bantu Holomisa on Wednesday wrote to Zondo.

"Regarding the terms of reference for the inquiry, the prima facie evidence and remedial actions, as stated by the former Public Protector, should form the basis thereof. It is the work of the former Public Protector, her findings and remedial actions which saw the UDM and other parties in and out of court to force the matter to fruition; we have at last reached that point, where the truth will be revealed," wrote Holomisa.

FF Plus leader Pieter Groenewald said the fact that Zuma wants to expand the terms of reference of the initial probe to include everybody involved in all state capture is further proof that Zuma will do everything possible to stay president of the country.

"The commission's terms of reference shouldn't be made so broad that the inquiry can't be done properly and that Zuma escapes in this way," said Groenewald. 

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