POLITICS

State Of Capture: What You Need To Know About Zuma's Review Application

President Jacob Zuma will go to court on Tuesday to try to nullify Thuli Madonsela's report.

24/10/2017 05:59 SAST | Updated 24/10/2017 05:59 SAST
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Former Public Protector Thuli Madonsela... how we could do with her right now...

President Jacob Zuma's legal team will be presenting arguments in the North Gauteng High Court on Tuesday to persuade the court to set aside the remedial action contained in former public protector Thuli Madonsela's "State of Capture" report.

What did the report find?

The report -- which is exactly one year old -- found that government had not done enough to investigate allegations of state capture, the Gupta family and Zuma's relationship with them.

Who was named in the report?

The report presented allegations of improper dealings between the Guptas and various government officials, including the former deputy minister of finance Mcebisi Jonas. It also presented details of Eskom's efforts to assist the Guptas in acquiring the Optimum Coal Mine.

What remedial action did Madonsela instruct be taken?

That Zuma should institute a judicial inquiry, with the chief justice forwarding one name to the president, and that the judge report back to Parliament with his or her findings.

Why has the inquiry not started?

The Nkandla decision by the Constitutional Court in March last year found that decisions and recommendations by the public protector were final unless they are challenged and overturned by the courts. Zuma decided at the end of 2016 he would ask for a review of the report.

What is the president asking for?

That the findings in the report and requested remedial action (the inquiry) be set aside and that the report be referred back to the Public Protector for further investigation.

Why?

The president argues that nobody can instruct the executive to institute a judicial commission of inquiry and that the prerogative to do so remains his.

But the Nkandla decision found that the Public Protector has wide discretion?

Yes, but Zuma is arguing that Madonsela's instruction infringes on the separation of powers. He believes the Public Protector is moving into the terrain of the executive. He argues she does not have the powers to direct the chief justice.

Zuma never did like Madonsela, did he?

No, he didn't. He never made any attempt to cooperate with her office in the investigation into state capture, even after she wrote to him twice shortly after her office received three complaints. Zuma says in court papers she wanted to bind him to an inquiry even after she left office.

Well, it does seem that way, doesn't it?

Madonsela tried everything to get to the bottom of the sate capture story, but was seemingly obstructed by the presidency, which stalled and stalled all attempts by Madonsela to interview the president. When she eventually did, he didn't answer one single pertinent question she put to him.

And Madonsela's successor, Busisiwe Mkhwebane, where does she stand?

There were genuine fears that Mkhwebane wouldn't oppose Zuma's application, but she did just that. She says in her court papers she believes Zuma's application is unlikely to be successful.

And the thrust of her arguments?

Mkhwebane says Zuma cannot be responsible for the establishment of a commission, the determining of its mandate or the direction of its resources if he is implicated therein, as in this case.

So...?

There's a conflict of interest, Mkhwebane believes.

Besides Zuma and Mkhwebane, who else is involved?

The DA, the United Democratic Movement, the Economic Freedom Fighters, the Congress of the People, Vytjie Mentor (who made serious allegations about state capture) and the Council for the Advancement of the South African Constitution.

What if Zuma's application is unsuccessful?

Then Madonsela's report stands and the commission of inquiry needs to be constituted as instructed in her report.