Former Public Protector Thuli Madonsela has admitted that her report into state capture is still incomplete – much in thanks to people who were called to answer questions in the investigation refusing or suddenly being unable to answer her.
Key among those people is president Jacob Zuma who, along with his lawyer, frustrated Madonsela’s process by delaying and ultimately refusing to answer the questions she posed to them.
In a transcript of a conversation between Madonsela and the president (included in the published report), it is clear that Zuma’s lawyer consistently spoke out of turn, and beyond his mandate when Madonesla sought answers from the president.
According to Madonsela’s account, the president was informed of the allegations against him in April 2016, but did not respond in writing to answers she put before him. When she approached him again in September, Zuma again brushed off the questions.
When the report process was in its closing days, the president was again asked for answers – but at this point he made demands to have full access to witnesses and other information relating to the case (which he was not entitled to), and accused the former PP of rushing through the report.
- On 22 April 2016 I forwarded a copy of my letter dated 22 March 2016 to President Zuma (which had apparently not reached the President). I advised that I was required to submit a report on the alleged breach of the Executive Member’s Code of Ethics within 30 days of receipt of the complaint. I reported to the President that the investigation had not been completed due to inadequate resources.
- I received no response from the President.
- By early September 2016 my office had received additional funds in order to proceed with the investigation.
- On 13 September 2016 I sent another letter to the President asking for a meeting with him in order to brief him on the investigation and affording him a further opportunity to comment on the allegations, which were summarised to the effect that the President ought to have known and/or allowed his son Duduzane Zuma to exercise enormous undue influence in strategic ministerial appointments as well as board appointments at SOEs.
- On 1 October 2016 I sent President Zuma a Notice in terms of Section 7 (9) of the Public Protector Act. The notice restated the complaints and added the third complaint. I advised that my investigation was now being conducted in terms of section 182 of the Constitution read with sections 6 and 7 of the Public Protector Act. I provided a full description of the issues investigated and how President Zuma was implicated therein. I detailed the evidence implicating President Zuma before describing his responsibility under law. I ended off the notice by advising the President that if I do not get his version which contradicts the said evidence, there would be a possibility that I could find that the above allegations are sustained by the evidence. I detailed the various conclusions that I would make in that case.
- In the meantime, a meeting was scheduled with the President for 6 October 2016.
- On 5 October 2016 I received a letter from the Office of the Presidency referring to a media article and asking, in preparation for the meeting, for urgent advice on the findings I had made as well as a report on whether the veracity of the allegations by Jonas had been fully ventilated and investigated.
- On 6 October 2016 I met with the President, whose legal team raised various legal objections and refused to discuss the merits of the investigation or the allegations against the President. The Presidency requested that the meeting be postponed to allow the President to study the documents provided and obtain legal advice. The Presidency raised an objection that they had not been provided with the relevant documents and records, and argued that they should be allowed to question witnesses who had already testified before me. I disagreed with this request and instead offered to provide the President with written questions to which the President would be required to respond by affidavit.
Zuma subsequently moved to delay the publishing of the report on the basis that his responses were not included.
It was also documented in the report that ANC secretary general Gwede Mantashe first challenged Madonsela’s powers to subpoena people – and only after she read him the Public Protector Act showing him that she could do so, did he agree to comply.
The report is incomplete: Madonsela
Ultimately, the president’s approach worked, as the published report provided a few answers – but raised many more questions.
Speaking to Radio 702 on Wednesday, Madonsela conceded that the report was ‘unusual’ – not a typical report – because some witnesses or implicated persons who were subpoenaed to answer questions were “suddenly unavailable”.
“When we asked if they could be interviewed by Skype‚ they were not available; when we asked if they could answer some questions in writing‚ they were not prepared to answer questions in writing,” she said.
The report was thus incomplete, in a way, with incomplete processes, which meant that it had to be finalised with a specific order to ensure that the process could be completed: what would ultimately be the order for a judicial commission of enquiry.
“(The report) raises questions, provides some answers, and provides a mechanism to conclude the process,” she said.