Zondo commission should be given limited extension - Mkhwebane

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Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)
Public Protector Busisiwe Mkwhebane. (Jan Gerber, News24, file)

Public Protector Busisiwe Mkhwebane believes the state capture inquiry must be granted an extension for a "prescribed minimal period".

Mkhwebane said this in an affidavit dated February 7 in the application by the commission's chairperson Deputy Chief Justice Raymond Zondo to have its lifespan extended from March 2020 to December 2020. 

The Public Protector is the second respondent of eight, including President Cyril Ramaphosa and the EFF, in the matter. 

In her lengthy affidavit, in which she adds that she would abide by the court's decision, Mkhwebane outlines that she is not opposed to having the lifespan of the inquiry expanded based on reasons that it would be "untenable" for it to be terminated on February 28. 

She, however, says that, should the extension be granted, Ramaphosa, Zondo and her office must be ordered or encouraged to produce a broad framework for the redefinition of the scope and timelines of the commission.

The office said Mkhwebane was cited in the matter based on the fact that the commission's existence and work were borne out of an investigation originating from her office. 

It added that in the State of Capture report, which was released by the then Public Protector Thuli Madonsela, the office had been tasked with the responsibility of monitoring the implementation of remedial action.

READ: State capture inquiry: Zondo mulls farming out aspects of investigation to other state institutions

Mkhwebane said, should the commission not be given a minimal extension, and have the president, chairperson and her office producing broad framework, the inquiry would fail to achieve its intended outcomes, which may cost billions of rands and see it run for at least another four to five years. 

"This would be nothing short of a disaster, more particularly in that so much scarce resources will have been expended, while public trust in the process will almost certainly have been vastly eroded," she said. 

According to the Public Protector, the commission was where it was today because it did not entirely align itself with the remedial action prescribed in the report.

'In hindsight, inadvisable'

Mkhwebane also pointed out that remedial action 8.10 in the report had already made provision for law enforcement agencies to conduct their own investigations parallel with evidence gathered or reflected in the report, saying prima facie evidence should not have been "reinvestigated" by the commission.

She added that the 180-day timeframe in which the commission was meant to have concluded its work was considered appropriate at the time because it would have first considered and confined itself to matters already in the report. 

"Appointing a single judge without any assistants was, in hindsight, inadvisable"

Amongst other views stated in her affidavit, the Public Protector also said that the decision to employ 11 advocates, including five senior counsels, was "unwarranted" given the scope of the work that was to be done. 

"It would be self-evidently pointless if the extensive action being conducted to the tune of several hundreds of million rand to date and having lasted a couple of years already turns out not to have been 'remedial' of any of the harm caused to the public, the protection of which is the core and primary function of the Public Protector.

"There are those, like me, who believe that the work could have been efficiently done by employing a fraction of that complement of advocates and without such a top-heavy selection.

"I am also of the view that the format of the commission in appointing a single judge without any assistants was, in hindsight, inadvisable..." 

Mkhwebane also added that provision should have been made for the strict provision of interim reports to allow for interim recommendation to be made where topics were finalised.

She also stressed that public expense should match public returns, not necessarily in monetary terms, but in terms of the value yielded by the entire exercise, as failure to achieve this would likely render the entire exercise partially fruitless and wasteful.

Mkhwebane has denied reports by Sunday Times that she approached the court wanting it to allow her to help draft narrowed terms for the Commission.

"The truth is that Adv. Mkhwebane did not take the State Capture Commission to court as implied. She was cited as the second of eight respondents in the application made to the court by Justice Zondo," her office said in a statement.

The Public Protector called on the media to report "fairly and factually". 

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