Statement on the 'Sate Capture' report
3 November 2016
The Centre for Constitutional Rights (CFCR) welcomes the High Court (the Court) ordered release of the ‘State Capture’ Report (the Report), as compiled by the erstwhile Public Protector’s Office. The Report is an important affirmation of the principle of constitutional supremacy, which demands that the obligations imposed by the Constitution must be fulfilled. Sadly, the Report serves as a reminder to the South African public of the gaping hole that has come to represent the nation’s political leadership.
The Report, whose two-pronged approach investigated breaches into the Executive Members Ethics Act, as well as the awarding of contracts by certain organs of state to entities linked to the Gupta family, details infringements of various laws. These include the Income Tax Act, the National Environmental Management Act, the Public Finance Management Act (PFMA), as well as the Prevention and Combating of Corrupt Activities Act. The remedial action recommended includes the appointment of a Commission of Inquiry, for Parliament to review the Executive Members’ Ethics Act, as well as the referral of wrongdoing to the National Prosecuting Authority (NPA) and the Directorate for Priority Crime Investigation (DCPI).
Briefly, the Report found that the President breached the Executive Ethics Code in his relationship with the Gupta family, since the relationship exposed him to a conflict between his official responsibilities and his private interests. Minister Mosebenzi Zwane’s conduct was also said to have contravened the PFMA, while Eskom too flouted the provisions imposed by the PFMA in its dealings with the Gupta-owned Tegeta company. Minister Lynne Brown is said to have appointed the Eskom Board, which then went on to approve various transactions proving favourable to the Gupta-owned companies, in breach of legal provisions. She also failed to hold the parastatal accountable in line with her duties as Minister of Public Enterprises. Minister Des van Rooyen too does not come out of it blameless, as the Report squarely places his telephone records within the premises of the Gupta residence much too frequently and at pertinent times - such as the night before Finance Minister Nhlanhla Nene was made to step down.
The Report demonstrates the importance and power of the Public Protector’s Office - particularly with added impetus following the Constitutional Court’s ruling earlier this year concerning the authority of the Office with regard to the remedial action recommended in theNkandla matter.