Madonsela recommends judicial inquiry into state capture
2 November 2016
Cape Town - Former public protector Thuli Madonsela has instructed President Jacob Zuma to appoint a judicial commission of inquiry into state capture.
Chief justice Mogoeng Mogoeng must decide which judge should head the commission.
That is the main finding of Madonsela’s 355-page report titled “State of Capture” into allegations of improper influence by the Gupta family over Zuma and his family.
The North Gauteng High Court ordered the release of the report on Wednesday.
#Nenegate concerns
The report also expresses concerns about the Gupta family’s involvement in the removal of Finance Minister Nhlanhla Nene. Madonsela said President Jacob Zuma was required to select and appoint ministers lawfully and in compliance with the executive ethics code.
"It is worrying that the Gupta family was aware or may have been aware that Minister Nene was removed 6 weeks after Deputy [Finance] Minister Mcebisi Jonas advised him that he had been allegedly offered a job by the Gupta family in exchange for extending favours to their family business," she said.
She found it equally worrying that Co-operative Governance and Traditional Affairs Minister Des van Rooyen, who briefly replaced Nene, could be placed in the Saxonwold area on at least seven occasions.
This included on the day before he was appointed as finance minister.
"This looks anomalous, given that at the time he was a Member of Parliament based in Cape Town," she said.
"Another worrying coincidence is that Minister Nene was removed after Mr Jonas advised him that he was going to be removed."
Violation of executive ethics code
She said that if the Gupta family knew about the intended appointment, it would appear that the information was shared in violation of the executive ethics code.
One provision of this code prohibited a member from acting in a way that was inconsistent with their position.
She said there might even be a violation of a provision that prohibited the member from using information received in confidence for anything other than in discharging their duties.
Jonas alleged that the offer for a position of minister was linked to him being required to extend favours to the Gupta family.
"Failure to verify such allegation may infringe the provisions of Section 34 of Prevention and Combating of Corrupt Activities Act, 12 of 2004 which places a duty on persons in positions of authority who knows or ought reasonably to have known or suspected that any other person has committed an offence under the Act must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official."
Zuma must appoint judicial commission
Madonsela instructed President Jacob Zuma to appoint a judicial commission of inquiry into state capture within 30 days, as the main remedial action.
Chief Justice Mogoeng Mogoeng should decide which judge would head the commission.
The commission of inquiry had to present the report with findings and recommendations to Zuma within 180 days.
Zuma had to submit a copy with an indication of his intentions regarding the implementation to Parliament within 14 days of releasing the report.
Madonsela’s 355-page report was released on Wednesday afternoon.
The full title is the: "State of Capture: Report on an investigation into alleged improper and unethical conduct by the President and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of Ministers and Directors of State-Owned Enterprises resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses."
Eskom's Molefe implicated in 'state capture' report #StateCaptureReport
The report also includes damning details on the relationship between Eskom CEO Brian Molefe and the controversial Gupta family.
Molefe and Ajay Gupta, the eldest of three Gupta brothers, made 58 telephone calls to one another between August 2015 and March 2016, according to the report, which was released on Wednesday.
Titled "State of Capture", the document details phone calls between Molefe and Ronica Ragavan, a long-time Gupta associate and recently appointed acting CEO of Oakbay Investments, the family's main holding company.
According to cellphone tracking records obtained by the protector's investigators, Molefe was at or near the Guptas' Saxonwold, Johannesburg, compound 19 times between August 5 and November 17, 2015.
The report details contact between Molefe and Nazeem Howa, Oakbay's former CEO, and Rajesh "Tony" Gupta, the youngest of the three Gupta siblings.
The time frame of the interactions between Molefe, the Guptas, and their associates is important as it coincides with the acquisition of the Optimum coal mine by the Gupta-owned Tegeta Exploration and Resources.
Part of the controversy about the deal revolves around a pre-payment of more than R600 million that Eskom had approved for coal it would get from Tegeta. This money ostensibly helped the Guptas finance the Optimum deal.
Madonsela's report highlights "a distinct line of communication between Mr Molefe of Eskom, the Gupta family and directors of their companies in the form of Ms Ragavan and Mr Howa. These links cannot be ignored as Mr Molefe did not declare his relationship with the Guptas."
The report highlights the fact that Ragavan called Molefe on April 11 this year, the same day when Eskom’s pre-payment was granted to Tegeta.
Molefe told News24 he first wanted to see the report himself before commenting.
“Right now I am not comfortable saying anything about this,” he said.
