POLITICS
11/01/2018 04:48 SAST | Updated 11/01/2018 04:58 SAST

State Capture Probe Must Answer These 11 Questions

Deputy chief justice Ray Zondo has a mammoth task.

Ajay and Atul Gupta and Duduzane Zuma will feature front and centre when the judicial commission of inquiry into state capture starts.
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Ajay and Atul Gupta and Duduzane Zuma will feature front and centre when the judicial commission of inquiry into state capture starts.

South Africans are waiting with bated breath to see whether the commission of inquiry into state capture, to be led by deputy chief justice Raymond Zondo, will get to the bottom of the rot.

Tuesday's shock announcement by President Jacob Zuma came as a surprise to many, because until now he has steadfastly resisted moves to expose the shadow state. In his statement, Zuma said state capture had been a national talking point for some time and the nation deserved clarity on the issue.

The president, a wily operator if ever there was one, can however look to manipulate the commission's terms of reference, which set out the parameters within which the inquiry will operate.

Zuma's hand, however, seems to have been forced by politics and the courts. The changing of the guard in the governing ANC means he is in a weaker position than only weeks earlier, while the High Court judgment ordering him to comply with the findings by the previous public protector, Thuli Madonsela, has left little room to manoeuvre.

Zuma has, however, indicated that he will appeal the judgment.

The president, a wily operator if ever there was one, can look to manipulate the commission's terms of reference, which set out the parameters within which the inquiry will operate.

In other words: the terms of reference will determine what the commission will have to investigate. It is unclear who will be determining the terms of reference for the Zondo commission. In the past, legal advisers in the department of justice were responsible.

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Vindicated . . . Thuli Madonsela, the former public protector. Her report into state capture should form the basis of the inquiry into the Guptas, President Jacob Zuma and his son, Duduzane.

The public protector's findings and the High Court judgment both stated Thuli Madonsela's report, titled "State Of Capture", must be used as the "starting point" from which the inquiry should proceed.

But constitutional expert Professor Pierre de Vos told News24 that, because Zuma was appealing the High Court judgment that he must comply with Madonsela's findings, he can frame the terms of reference any way he wants, including a broadening of the scope beyond state capture.

"State Of Capture" left a number of unanswered questions, and both Madonsela and the court want those to be answered. Whatever the scope of the inquiry, it will have to contain specific references to the following questions posed by Madonsela:

1. Did Zuma violate the Executive Ethics Code by allowing his son Duduzane and the Guptas to be involved in the process of the removal and appointment of a minister of finance in December 2015?

2. Did the president improperly involve Duduzane and the Guptas in the removal and appointment of other members of Cabinet?

3. Did the president, equally, allow Duduzane and the Guptas to involve themselves in the process around the appointing of board members to state-owned enterprise such as Eskom?

4. Did the president turn a blind eye to alleged corrupt practices by Duduzane and the Guptas when they promised ministerial positions to individuals?

5. Did the president and some of his ministers improperly interfere in the relationship between the Guptas and commercial banks on a matter that is the domain of regulatory bodies?

6. Did the president expose himself to situations where there were conflicts of interests, and did he use his position to the advantage of Duduzane and the Guptas' business interests?

7. Was anyone, such as the former deputy minister of finance, Mcebisi Jonas, prejudiced by the president's conduct?

8. Did anyone in the public service or anyone else act unlawfully, improperly or corruptly in connection with the removal and appointment of ministers or boards and directors of SOEs?

9. Was there corruption involved in the awarding of state tenders to the Guptas, their companies or anyone else linked to them? This includes the Tegeta deal.

10. Did anyone in government or any other state institution unlawfully, improperly or illegally receive gifts from the Guptas or their associates?

11. Were Glencore and others prejudiced by Eskom's actions when it helped Tegeta obtain Optimum coal mine? Did Eskom's board act solely for the benefit of Tegeta and the Guptas?

Without these questions in the terms of reference, the inquiry will struggle to get to the bottom of the story.