Public Protector clarifies media distortions on her explanatory affidavit on the matter of the Commission of Inquiry into State Capture
16 February 2020
Public Protector Adv. Busisiwe Mkhwebane has noted with disappointment the blatant distortions of the explanatory affidavit she deposed to following a court application by the Chairperson of the Judicial Commission of Inquiry into State Capture, Deputy Chief Justice Raymond Zondo to have the commission's lifespan extended again as published in the media. Certain sections of the media on Sunday reported the lie that Adv. Mkhwebane has approached the high court in a "bid to clip [Justice Raymond] Zondo's wings" and to "curb scope of Zondo".
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. Presumably, she was cited in view of the fact that the Commission's existence and work are borne out of an investigation originating from her office and that, in the State of Capture report, the Public Protector is tasked with the responsibility of monitoring the implementation of remedial action.
In her explanatory affidavit dated 07 February 2020, Adv. Mkhwebane makes it clear that she is not opposed to Justice Zondo's application. She adds that she would abide by the court's decision. She prepared and filed the affidavit solely to assist the court and to bring to the attention of the court issues not dealt with in the founding affidavit.
Among the issues she raises in the affidavit is that the scope of the inquiry as prescribed in the State of Capture report was always meant to be confined to evidence contained in the report as a starting point. According to her, the Commission is where it is now because it did not entirely aliqn itself with the remedial action prescribed in contained in the report as a starting point. According to her, the Commission is where it is now because it did not entirely align itself with the remedial action prescribed in the report.
In addition, the Public Protector makes the point in her affidavit that remedial action 8.10 in the State of Capture report already made provision for law enforcement agencies to conduct their own investigations in line with the evidence gathered or reflected in the report. The prima facie evidence should therefore not have been reinvestigated by the Commission. This would have significantly reduced the amount of time and resources spent to date.
The Public Protector further argues that the 180-day timeframe within which the Commission ought to have concluded its work as per the remedial action in the State of Capture Report was considered appropriate at the time because the Commission was to have first considered and confined itself to matters already in the report.
Moreover, Justice Zondo's first request for extension of the Commission's initial 180-day timeframe was premised on the ever expanding scope and a need to prove new facts that came to light. Adv. Mkhwebane is of the view that should the Commission be allowed to run beyond 2020, the costs incurred in human and physical resources will likely breach the RI billion mark.
It must be borne in mind that the overriding reason for the establishment of the Commission was because the Public Protector was not well resourced to conduct the investigation. In fact, the Public Protector requested around R50million to investigate and finalize the matter if the report was set aside and sent back to her office.
"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," Adv. Mkhwebane said.
"Even worse and unthinkable would it be for the public if they were to be robbed of more billions of Rand in the name of 'remedying' the alleged looting of the public purse. No person's legitimate interests can conceivably be served by such outcome, which is not outside the realms of possibility as matters currently stand."
the evidence gathered or reflected in the report. The prima facie evidence should therefore not have been reinvestigated by the Commission. This would have significantly reduced the amount of time and resources spent to date.
The Public Protector further argues that the 180-day timeframe within which the Commission ought to have concluded its work as per the remedial action in the State of Capture Report was considered appropriate at the time because the Commission was to have first considered and
confined itself to matters already in the report.
Moreover, Justice Zondo's first request for extension of the Commission's initial 180-day timeframe was premised on the ever expanding scope and a need to prove new facts that came to light. Adv. Mkhwebane is of the view that should the Commission be allowed to run beyond 2020, the costs incurred in human and physical resources will likely breach the RI billion mark.
It must be borne in mind that the overriding reason for the establishment of the Commission was because the Public Protector was not well resourced to conduct the investigation. In fact, the Public Protector requested around R50million to investigate and finalize the matter if the report was set aside and sent back to her office.
"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," Adv. Mkhwebane said.
"Even worse and unthinkable would it be for the public if they were to be robbed of more billions of Rand in the name of 'remedying' the alleged looting of the public purse. No person's legitimate interests can conceivably be served by such outcome, which is not outside the realms of possibility as matters currently stand."
She stressed that public expense must 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.
Adv. Mkhwebane pleads with the media to report fairly and factually.
Issued by Office of the Public Protector, 16 February 2020
