Public Protector Busisiwe Mkhwebane wants the state capture inquiry to be expanded to cover issues not dealt with by her predecessor Thuli Madonsela's "State of Capture" report, News24 reported. Madonsela's report recommended that an inquiry be set up to take her investigations, primarily into allegations of state capture by the Gupta family and their associates, further.
On Tuesday, President Jacob Zuma announced that the probe would go ahead, led by deputy chief justice Raymond Zondo.
In a statement, Mkhwebane reportedly said: "In order to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the office of the Public Protector, the Public Protector calls upon the president of RSA to ensure that the terms of reference (ToR) for the commission of inquiry are not limited to the issues investigated or identified in the 'State of Capture' report."
But on Wednesday, Madonsela told News24 that the inquiry could not go further than the scope of her report.
"What has to be investigated is what my [probe] was investigating. There is no room to expand the commission to include what was never investigated," she said.
She was asked whether the commission should include instances of state capture that occurred prior to 1994, as suggested by some. Madonsela reportedly said: "There is nothing under the sun stopping president Zuma or any president from initiating 20 judicial inquiries into state capture by white monopoly capital. But this one is specifically about the Gupta family, the president and his son."
Zuma went to court to challenge Madonsela's recommendation that the Chief Justice should be the one to appoint the head of the commission, because Zuma was compromised owing to his friendship with the Gupta family. Zuma lost that application but said he intends appealing.
The High Court previously ruled that the starting point of the commission must be where Madonsela's inquiry left off.
This is what the High Court ordered about the nature of the #StateCapture inquiry:— Karyn Maughan (@karynmaughan) January 10, 2018
Crucial here is that court stated that @ThuliMadonsela3 report must be "starting point" for a commission investigation. pic.twitter.com/zfqE447hha
According to Daily Maverick, Zuma's statement in which he announced the inquiry appears to support the idea that the commission should have a broader scope.
"The commission must seek to uncover not just the conduct of some, but of all those who may have rendered our state or parts thereof vulnerable to control by forces other than the public for which government is elected," said Zuma in his announcement. "There should be no area of corruption and culprit (sic) that should be spared the extent of this commission of inquiry," he said.
Zuma said he was going to set up the commission even though he still had reservations about the legality of Madonsela's recommendations. He said he was taking legal advice about whether to appeal the High Court order.
On Twitter, constitutional law expert Pierre de Vos pointed out that this created the perception that Zuma was prepared to act in a way that he considered to be unconstitutional in order to pursue political motives.
3) An appeal by the President means the President believes that what he did last night is unconstitutional and invalid, but he nevertheless did it for reasons that has nothing to do with law or principle, but with politics.— Pierre de Vos (@pierredevos) January 10, 2018
5) Normally, a person will either appeal and unless ordered by the court to do so will not implement the lower court order, or he or she will abandon the appeal and implement the order.— Pierre de Vos (@pierredevos) January 10, 2018
6) This is because it may look weird to implement an order you are going to tell a higher court is unconstitutional and unlawful. It may look as if you are deliberately flouting the Constitution (or believe that you are doing so) for purely political advantage.— Pierre de Vos (@pierredevos) January 10, 2018