Statement on the 'Sate Capture' report
3 November 2016
The Centre for Constitutional Rights (CFCR) welcomes the High Court (the Court) ordered release of the ‘State Capture’ Report (the Report), as compiled by the erstwhile Public Protector’s Office. The Report is an important affirmation of the principle of constitutional supremacy, which demands that the obligations imposed by the Constitution must be fulfilled. Sadly, the Report serves as a reminder to the South African public of the gaping hole that has come to represent the nation’s political leadership.
The Report, whose two-pronged approach investigated breaches into the Executive Members Ethics Act, as well as the awarding of contracts by certain organs of state to entities linked to the Gupta family, details infringements of various laws. These include the Income Tax Act, the National Environmental Management Act, the Public Finance Management Act (PFMA), as well as the Prevention and Combating of Corrupt Activities Act. The remedial action recommended includes the appointment of a Commission of Inquiry, for Parliament to review the Executive Members’ Ethics Act, as well as the referral of wrongdoing to the National Prosecuting Authority (NPA) and the Directorate for Priority Crime Investigation (DCPI).
Briefly, the Report found that the President breached the Executive Ethics Code in his relationship with the Gupta family, since the relationship exposed him to a conflict between his official responsibilities and his private interests. Minister Mosebenzi Zwane’s conduct was also said to have contravened the PFMA, while Eskom too flouted the provisions imposed by the PFMA in its dealings with the Gupta-owned Tegeta company. Minister Lynne Brown is said to have appointed the Eskom Board, which then went on to approve various transactions proving favourable to the Gupta-owned companies, in breach of legal provisions. She also failed to hold the parastatal accountable in line with her duties as Minister of Public Enterprises. Minister Des van Rooyen too does not come out of it blameless, as the Report squarely places his telephone records within the premises of the Gupta residence much too frequently and at pertinent times - such as the night before Finance Minister Nhlanhla Nene was made to step down.
The Report demonstrates the importance and power of the Public Protector’s Office - particularly with added impetus following the Constitutional Court’s ruling earlier this year concerning the authority of the Office with regard to the remedial action recommended in theNkandla matter.
The Report is, coming as it were, after attempts to block its release, in every sense, a victory for not just the Courts, but also for the Rule of Law. It cannot be that a few individuals with close links to those in power have the ability to subvert state policies for their own purposes, at the expense of the South African public. South Africa’s foundational values include a system of open, accountable and responsive democratic governance. As such it follows that the free flow of information, including information alleging wrongdoing on the part of public officials, is necessary in order to sustain a democracy. The information is also necessary to hold officials exercising public power accountable.
It must be said that from a tactical point of view the Report is a brilliant masterstroke on the part of the erstwhile Public Protector, in that the establishment of a Commission of Inquiry headed by a sitting judge will allow the President to further interrogate the evidence and cross-examine witnesses - bearing in mind that the President had previously tried to block the release of the Report on the basis that he had no right of reply. However, this by no means lets the President off the hook.
Ultimately, as was made apparent in the Nkandla decision, the Report may still be taken on review by the Courts, but until a Court arrives at a different conclusion from that of the Report, then its contents and remedial action recommendations will stand. The next question being, is the NPA up for the job?
Issued by Phephelaphi Dube, Director, Centre for Constitutional Rights, 3 November 2016
