#StateCaptureReport: What next?

2016-11-05 23:05
The scene inside the Pretoria High Court during proceedings on Tuesday. (Felix Dlangamandla)

The scene inside the Pretoria High Court during proceedings on Tuesday. (Felix Dlangamandla)

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Mineral Resources Minister Mosebenzi Zwane’s call for a review of the Public Protector’s State of Capture report could delay the start of the judicial inquiry recommended by Thuli Madonsela.

The report was released this week, after a full bench of judges in the High Court of Pretoria ruled that the report had to be released by 17:00 on Wednesday.

In the report, Madonsela, the former public protector, stipulates as remedial action that President Jacob Zuma must appoint a commission of inquiry within 30 days of the report’s release, and that the commission – to be headed by a judge appointed by the chief justice, Mogoeng Mogoeng – must complete its work within 180 days.

However, Oupa Segalwe, spokesperson for the Public Protector’s office, said that should the report be brought before the court for a review, remedial action would be postponed until the court made a ruling.

Meanwhile, City Press learnt that President Jacob Zuma had been advised to withdraw his opposition to the release of the report, as it would have jeopardised his chances of requesting the court for a review of the report – a likely scenario, as he too has maintained that he had not been afforded his procedural rights of being given enough time to respond.

City Press learnt that the president’s advisers pointed out that should they go ahead with their opposition in court and lose, their arguments at review would be dismissed.

This weekend, lawyers for the intervening parties – the Economic Freedom Fighters, the DA, Cope, United Democratic Movement – have been hard at work on arguments they intend bringing before the court on Wednesday, for a ruling that Zuma be held personally liable for all legal fees incurred – a figure that could run into the region of more than R2m.

Urgent application

In handing down the order for the release of the report on Wednesday, North Gauteng High Court Judge President Dunstan Mlambo said intervening parties would have seven days to file supplementary affidavits making a case for Zuma to pay for the court actions from his own pocket. When Zuma dropped his application, he agreed to pay costs. But he was represented by the state and, as a result, left the state with the bill.

Meanwhile, Zwane – who has close ties with the Gupta family – filed an urgent application on Monday to have the release of the report interdicted alongside Minister of Cooperative Governance and Traditional Affairs Des van Rooyen’s similar application, which the court dismissed.

Zwane’s lawyer turned down the offer from the judges for Zwane to state his case in court on Tuesday, saying the case would only be ready for presentation on November 8.

The release of the report means that Zwane’s interdict has in effect failed, but in Part B of his application, Zwane asks for an order reviewing and setting aside the report. He argues that he had not been afforded the chance to state his case.

In the Public Protector report, Zwane stands accused of having helped the Guptas secure the Optimum Coal mine, previously owned by Glencore, based in Switzerland. Zwane visited Glencore’s headquarters at the same time as a Gupta delegation, raising questions as to whether or not he used his position to exert undue influence on Glencore’s decision to sell to the Gupta-owned company Tegeta in which Zuma’s son Duduzane has a sizeable stake.

The flights alone had cost the state more than R96 000. In her report, Madonsela found that Zwane "did not complete his travel itinerary and mysteriously ended up in Dubai", where the Guptas own a home.

"Furthermore, it appears that an additional flight was booked from Dubai to Johannesburg. This amounted to expenditure being incurred to the amount of R96 630. If not contradicted or fully explained, it appears to be an indication of fruitless and wasteful expenditure," the report said.

What’s still to be done

In addition to the judicial inquiry, Madonsela also refers in her report to a second phase of the investigation into state capture, which will look into:

 - The awarding of licences to the Gupta family and state financing of Gupta-Zuma business interests;

 - The Bank of Baroda in relation to the purchase of all shares in Optimum Coal Holdings by Tegeta and the rehabilitation fund which was spent;

 - Whether any state functionary or organ acted corruptly "in connection with exchange of gifts" with the Guptas or their companies;

 - Improper conduct involving state-owned entities, which include Transnet, Denel, SAA and the SABC;

 - The awarding of contracts to Tegeta to supply coal to Majuba Power Station; and

 - Whether Zwane was sanctioned by the president to support Tegeta’s bid to buy the Optimum mine, abusing his position as a minister to unduly influence the contract at the expense of the state.

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