Governance Watch

Legal system capture state capture investigation

Legal capture.jpg

Is South Africa’s renowned legal system, anchored in “the rule of law,” being misused to avoid calling state robbers to account?

This has, now more than ever, become a serious question after an announcement last week by Public Protector (PP), Busisiwe Mkhwebane, of yet another investigation into an aspect of alleged rampant corruption and looting of state assets.

The PP announced a “preliminary investigation” into the “merits” of allegations stemming from the Gupta leaks. It is the latest in a growing list of investigations and legal actions clouding and complicating getting to bottom of the problem.

Sure, the leaking of thousands of “Gupta communications” and the authenticity thereof will have to be attended to in the process of investigating the allegations of state capture. But, why must it now be pulled upfront and treated as an almost lone standing issue?

Will it be used as an excuse by the ‘suspect in main’ of the state capture, President Jacob Zuma and his cohorts, to further delay the original recommendation by the previous PP, Thuli Madonsela, of the appointment of full-blooded judicial commission of inquiry?

There are more than enough reasons for the suspicions aired by opposition Democratic Leader, Mmusi Maimane, that the latest announcement by the PP “has been crafted as narrowly as possible to create the veneer of a state capture investigation, while at the same time protecting the real power brokers in state capture.”

Quite apart from this aspect, the danger of shielding alleged perpetrators of sate capture from being held accountable, there is the danger of further substantial fiscal damage to the state and its taxpayers.

The latest move by the present PP comes after she allowed the concerns about state capture to degenerate into a piece-meal affair when she, at her take-over from her predecessor,, decided to abandon the plans to initiated a second phase of the initial investigation into the matter.

At the time it was reported that she let “ off the hook, at least for the time being, four state-owned enterprises, a foreign-owned bank, President Jacob Zuma and his mining minister, Mosebenzi Zwane, even though a report found reason to investigate all of them.”

That has all changed now for state enterprises, coming under the spot light at parliamentary select committees as information of maladministration and corruptions leaked.

And, if there is one thing that is revealed by the “Gupa-leaks,” it is that the capture of the state and the looting that comes with it (running into the billions of rands), has rather intensified than declined since the original PP investigation into sate capture was launched, just short of a year ago, in July 2016.

Not even after the report was finally released, in November 2016, did the brakes seem to have come on.

Another important confirmation from the leaks is that Madonsela was spot-on when she concluded that “the scope of the matter is bigger than the capacity of the (PP) office.” That is why she called for a commission of inquiry to deal with the matter in totality in the first instance.

Misuse of legal system

The pattern of using the legal system to frustrate the process of dealing with ‘The State of Capture’ report by the PP to ensure that justice is seen to be done, was set right at the beginning (after its completion), by President Zuma as – the prime suspect implicated.

The whole legal saga, which by now in itself has racked up many-many millions of costs, was kicked-off by Mr Zuma when he fruitlessly tried to block the release of the original PP report.

Within a month after he lost that case, he filed another case to have the report set aside – that despite an official statement by the ANC that it supports the PP’s recommendations, including the setting up of a commission of enquiry.

Now, eight months later, after the DA has applied to the High Court in Pretoria the for an order to have the recommendations of the report implemented, Mr. Zuma's office confirmed that he has filed counter papers to set aside the report.

This move comes after the ANC has recently chanced it stance on a judicial inquiry somewhat, calling for its appointment on an urgent basis. However, the party also indicated that it would want the inquiry’s terms of reference dramatically broadened, which could possibly create diversions from and diluting of the focus on the Zuma-Gupta axis in the inestigation.

Also read: ANC state capture danger deepens under NEC compromise

It is then, also interesting to note that the latest Zuma papers filed in response to the DA-case, seeks opportunity to review the former Public Protector's State of Capture report before implementing the recommended remedial action.

In the meantime, the Hawks (the Police’s specialised priority crime investigative unit) and the National Prosecuting Authority (NPA) finally confirmed that they are also investigating claims of corruption, contained in the original PP sate capture report.  

Cost involved

While all these legal actions and lose-standing investigation, each requiring its own administrative and secretarial infrastructure and own investigative capacity, the cost to the taxpayer is dramatically rising.

Last week it was reported that the corruption probe at the Passenger Rail Agency of SA (Prasa),alone has already cost R148 million.

And, as things stand, hundreds of million rand later, we are already eight months past the deadline set in Madonsela’s report for the establishment of a commission of inquiry.

by Piet Coetzer

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