Mkhwebane seeking legal advice on Zuma's review of 'State of Capture' report

Advocate Busiswe Mkhwebane briefs the media on the first 100 days in office. (Tshidi Madia, News24)
Advocate Busiswe Mkhwebane briefs the media on the first 100 days in office. (Tshidi Madia, News24)

Pretoria - Public Protector Busisiwe Mkhwebane is still seeking a legal opinion on President Jacob Zuma’s decision to take the "State of Capture" report on review, she said on Thursday.

She had already filed court papers to oppose Zuma’s application.

Mkhwebane said the matter was complicated and without precedent. She needed to determine if her office could instruct the president to perform his duties.

“It doesn’t make sense for one to go ahead to say ‘we oppose’ out of the blue. You need to have evidence as to why you are opposing,” she told reporters at a briefing about her first 100 days in office. She described them as “bumpy”. She took office on October 17.

“In the notice I clearly indicated that I will consider my position once I have been advised by senior counsel on the legalities of the basis of [Zuma’s] application,” she said.

Former Public Protector Thuli Madonsela instructed Zuma to appoint a judicial inquiry to look into allegations of state capture contained in her report “State of Capture”. It was released on November 2, after Zuma withdrew his court application to interdict its release.

She said Chief Justice Mogoeng Mogoeng should decide which judge would head the commission.

Madonsela looked into claims that the Gupta family, who are friends of Zuma, had a hand in key decisions in state-owned entities and government departments, including the appointments of ministers.

READ: Public Protector lays criminal charges over leaked Absa report

No sign-off on Absa report

Mkhwebane said parties implicated in the report looking into claims that Absa bank benefitted from an unlawful apartheid-era bailout when it purchased Bancorp in 1992, had until February 28 to comment.

She recommended in the leaked preliminary report that Absa repay R2.25bn.

Madonsela began investigating the matter in 2012 following a report by British spy Michael Oatley in 1997.

He claimed tens of billions of rand were stolen from the government in the last days of apartheid. He claimed, in what became known as the "Ciex" report, that government could claim back between R3bn and R15bn from Absa, the Mail & Guardian reported on January 13.

“The report was a draft, it was not signed. Therefore I couldn’t send out a report that I haven’t read, that I haven’t applied my mind,” said Mkhwebane.

She said inaccuracies and allegations in the draft report would only be changed after respondents had given their input.

Finance Minister Pravin Gordhan, in papers filed in the High Court in Pretoria, said the report was deeply flawed.

Political party Black First Land First launched a court bid to force Gordhan to comply with recommendations in the report. Gordhan said it was flawed and had no legal status.

Gordhan said Mkhwebane needed to explain how the document was leaked to the media.

“It’s just information gathered that still needs to be confirmed,” Mkhwebane said.

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