South Africa

ANALYSIS: Unpacking the Public Protector’s opposition to the scope of the Zondo Commission

Public Protector Busisiwe Mkhwebane, right, and Deputy Chief Justice Raymond Zondo. (Photos: Felix Dlangamandla / Netwerk24) | Gallo Images / Veli Nhlapo)

Weekend reports revealed that Public Protector Busisiwe Mkhwebane has lodged a responding affidavit to the application by Judge Raymond Zondo to extend the lifespan of the Zondo Commission. Mkhwebane has since blasted the media for inaccurately reporting that she wishes to clip Zondo’s wings – but her affidavit does make clear her opposition to the scope of the Zondo Commission’s inquiry. It’s worth considering why.

Public Protector Busisiwe Mkhwebane feels both a sense of ownership towards the inquiry into State Capture and a sense of resentment that the job was not left to her office.

That much is made clear by the affidavit deposed by Mkhwebane in response to the court application lodged by Judge Raymond Zondo asking for more time to complete the Zondo Commission’s inquiry into State Capture.

Mkhwebane does have a certain degree of skin in this game, as was acknowledged by Judge Zondo when he listed the public protector as one of eight respondents to his application “because of the interest they have in the matter”.

This is because the establishment of the State Capture inquiry arose from the work of Mkhwebane’s predecessor Thuli Madonsela, whose October 2016 State of Capture report prescribed the commission as the central part of its remedial action.

But Mkhwebane’s affidavit reads primarily as an ill-tempered complaint about the resources granted to the Zondo Commission, as opposed to her own office’s minimal budget, while her suggestion that Judge Zondo and the legal experts of the commission have misinterpreted the inquiry’s terms of reference is certain to raise eyebrows.

Mkhwebane’s intervention – which was entirely voluntary, as respondents listed in such matters are under no obligation to respond – should also be read in the context of the public protector’s apparently increasing hostility towards the judiciary that Judge Zondo helps helm as deputy chief justice.

In the past, Mkhwebane has complained that judges are treated with a greater degree of respect than that granted to her own office. She has also argued that the fact that a number of her reports have been set aside on review should be viewed in the same (generally forgiving) light as judges’ sentences being overturned on appeal.

On Monday, Mkhwebane tweeted in response to criticism from retired Constitutional Court judge Johann Kriegler that “apartheid judges who never apologised for atrocities of apartheid” should not be given platforms.

She added: “We really seem to be facing a constitutional crisis.”

Under these circumstances, Mkhwebane’s objections to the work and resources of the Zondo Commission feel rather more personal than her affidavit lets on.

Mkhwebane writes: “The dominant and overriding reason for the prescription of the commission of inquiry mechanism was the lack of funds in the office of the Public Protector. But for this factor, the entire investigation would have been carried out under the auspices of the Public Protector.”

This is true. Madonsela wrote in her State of Capture report that “the investigation has proven that the extent of issues it needs to traverse and resources necessary to execute it is incapable of being executed fully by the Public Protector”. Madonsela was given only R1.5-million to complete her report – and, like her successor, Madonsela frequently argued that her office’s budget was inadequate.

Mkhwebane contends that, given the necessary resources, her office could have completed the work of the Zondo Commission “by now” and spent “a minuscule fraction” of the commission’s costs.

She would have accomplished this partly by slashing the inquiry’s legal budget. For the Zondo Commission to employ 11 top advocates was “unwarranted given the scope of the work to be done”, Mkhwebane writes. She suggests that her office could have finished the job with two senior advocates and one junior.

At the same time, however, Mkhwebane argues that employing a single judge to chair the hearings without any assistants was “inadvisable”. With extra assistants, she says, parallel hearings could have been held, or the workload at least shared.

This is a fair point: other inquiries, like the Marikana Commission, have been chaired by a judge who has been assisted by senior advocates.

In Judge Zondo’s application for the extension of the commission’s lifespan, lodged in December 2019, he notes that the inquiry has only been able to sit on 74% of the business days of the year, mainly because Judge Zondo has other matters to attend to. (Judge Zondo points out, however, that he has attempted to compensate for this by also holding commission sittings on some Saturdays and sometimes into the evenings.)

Mkhwebane also contends in her responding affidavit that interim reports should have been released by the Zondo Commission by now, which would have allowed law enforcement agencies to proceed with prosecutions – a suggestion previously made by Daily Maverick.

But the nub of Mkhwebane’s concern about the work of the Zondo Commission is the scale of the content it is investigating; or, as she puts it, the “unnecessary initial widening and/or the subsequent failure or refusal to narrow the terms of reference”.  

It is Mkhwebane’s contention that the inquiry should have limited itself to the original complaints investigated by Madonsela in State of Capture, without repeating scrutiny of prima facie evidence covered by Madonsela’s report.

The original terrain covered by Madonsela was, in essence, whether Jacob Zuma allowed the Guptas to intervene in the appointment of Cabinet ministers; whether the Guptas were given assistance in securing unlawful contracts and tenders; and whether the Cabinet attempted to intervene to prevent the unbanking of the Gupta family.

These three complaints, writes Mkhwebane, “cannot justify the present wide ambit of the terms of reference”.

Judge Zondo begs to differ.

In his application, Judge Zondo notes that the work of the commission has been so unwieldy because its terms of reference include the requirement to consider “every tender awarded to state-owned entities or any organ of state and awarded to the Gupta family or any other family, individual or corporate entity doing business with government or any organ of state to determine whether any member of the national executive (including deputy ministers), public official or employee of any state-owned entities acted in breach of the Constitution or any relevant ethical code or legislation by facilitating the unlawful awarding thereof”.

The facilitator of such a tender, Judge Zondo points out, “could be anybody from the former president to the lowest-ranking employee of an organ of state or state-owned entity”.

At the time when his application was lodged, in December 2019, Judge Zondo wrote that the commission had yet to even complete hearing testimony related to state-owned entities. He stated that further evidence had to be heard from Eskom, Transnet, Denel, SAA, SA Express and the SABC, while the commission had (at the time of the court application) yet to hear any evidence from Prasa whatsoever.

Another crucial element of State Capture that the commission had yet to touch on, Judge Zondo pointed out, was evidence relating to whether – or how – law enforcement agencies like the NPA, the Special Investigating Unit and the Hawks were captured.

Few, surely, would quibble with Judge Zondo’s assertion that the latter category of evidence is absolutely crucial – though it seems unlikely that it would feature in Mkhwebane’s vision of what a streamlined commission should be probing.

Judge Zondo’s application also singles out for special mention another topic that the judge considers it important to still cover.

Fifteen witnesses still need to be heard relating specifically to corruption in the Free State, Judge Zondo writes, and “certain projects that were undertaken by certain departments of the Free State provincial government”.

The cynical may suspect that this stipulation has a tiny part to play in Mkhwebane’s umbrage towards the Zondo Commission’s ongoing toil.

One of the most notorious reports released by the public protector during Mkhwebane’s time in office has been her “unconstitutional and invalid” 2018 report into the Vrede dairy project in the Free State, subsequently set aside by the high court. That report was labelled a whitewash due to its failure to probe either the Gupta family or the role that Free State provincial leaders Ace Magashule and Mosebenzi Zwane allegedly played in siphoning off funds.

The prospect of the Zondo Commission playing host to a succession of witnesses who may expose exactly how threadbare Mkhwebane’s report on the matter was is unlikely to be very enticing to the public protector – or to her friend Zwane, who was a recent guest at Mkhwebane’s 50th birthday party.

But don’t get it twisted. As the public protector stressed in a statement on Sunday 16 February, Mkhwebane is “not opposed” to the Zondo Commission receiving an extension.

She is merely looking out for the public – to ensure they are not “robbed of more billions of rand in the name of ‘remedying’ the alleged looting of the public purse”. Alleged looting. DM