The Public Protector’s State of Capture report contains damning facts – often corroborated by other witnesses or objective evidence such as cellphone records – which directly implicate President Jacob Zuma in breaches of the Executive Members Ethics Act and the Prevention and Combatting of Corrupt Activities Act.

For example, Vytjie Mentor testified that she was summoned to the Gupta compound (the meeting “was arranged by a staffer from the Presidency”) where she was offered the job of Minister of Public Enterprises. After refusing the offer, President Zuma emerged from another entrance. “The President was not angry that she declined the offer. He apparently said to her in Zulu, something like ‘it’s okay Ntombazane (girl)… take care of yourself”. The Cabinet was reshuffled a few days later and President Zuma appointed a new Minister of Public Enterprises.

Another example is the testimony provided by former CEO of Government Communication and Information System (GCIS), Themba Maseko. He was summoned to the Gupta compound in Saxondwold and on his way to the meeting he received a call from a personal assistant at Mahlamba Ndlopfu (official residence of the president) saying: “Ubaba ufuna ukukhuluma nawe” (loosely translated, the president wants to talk to you).

The president came on the line. He greeted Maseko and said: “Kuna labafana bakwa Gupta badinga uncedo lwakho. Ngicela ubancede” (loosely translated, the Gupta brothers need your help, please help them). The Guptas then attempted to persuade Maseko improperly to channel government advertising to its soon to be established newspaper. Cellphone records corroborate the presence of the protagonists at this meeting.

The frequent visits by Minister Des van Rooyen to the Gupta compound, one of the visits being the night before President Zuma fired Finance Minister Nhlanhla Nene (also corroborated by cellphone records), also implicate the president. As the Public Protector noted, the evidence suggests that the president shared information about the appointment of Cabinet ministers with the Guptas. This would be a violation of section 2.3(e) of the Executive Ethics Code which prohibits members of the executive from using information received in confidence in the course of their duties or otherwise than in connection with the discharge of their duties.

Despite this evidence (mostly corroborated by other witnesses and cellphone records), the Public Protector did not make definitive findings on these issues.

The reason for this is that due to time constraints, a lack of funds, and the legal manoeuvres of some of the implicated parties, section 7(9) of the Public Protector Act could not be complied with. This section allows those against whom adverse findings will be made the opportunity to respond to all the allegations. It also allows an implicated person or his or her legal representative, through the Public Protector, to question other witnesses, as determined by the Public Protector.

If adverse findings had been made against anyone without complying with section 7(9), a court may have been persuaded to review and set aside the report on the basis that the Public Protector had not complied with her legal duties in compiling the report. The fact that the report does not make findings against any implicated person may make it more difficult to persuade a court that the report should be reviewed and set aside.

Of course, those implicated do have the opportunity at any time to take all 55-million South Africans into their confidence to refute the incriminating facts presented in the report.

There is nothing, for example, that prevents the president from calling a press conference to repudiate all the evidence implicating him in breaches of the Executive Members Ethics Act and the Prevention and Combatting of Corrupt Activities Act. The president and others implicated in the report could also eagerly welcome the appointment of a Judicial Commission of Inquiry where they will be afforded an opportunity to tell their side of the story.

There is also nothing that prevents Minister Des van Rooyen from providing the public with reasons for his frequent visits to Saxonwold, revealed by his cellphone records. As somebody joked on Twitter, he could even claim that he had never visited the compound and that he had merely left his cellphone in President Zuma’s car.

If the president and others implicated in the report challenge its legality and refuse to respond in detail to the incriminating facts against them, it may well be that ordinary citizens will assume that this silence is an admission of guilt.

It is true that section 35(3)(j) of the Constitution states that every accused person has a right to a fair trial, which includes the right not to be compelled to give self-incriminating evidence. However, in S v Boesak the Constitutional Court held that adverse consequences might well follow when somebody elects to remain silent in an instance where other evidence suggest that they may be guilty of wrongdoing. Justice Langa held that:

“The fact that an accused person is under no obligation to testify does not mean that there are no consequences attaching to a decision to remain silent during the trial. If there is evidence calling for an answer, and an accused person chooses to remain silent in the face of such evidence, a court may well be entitled to conclude that the evidence is sufficient in the absence of an explanation to prove the guilt of the accused. Whether such a conclusion is justified will depend on the weight of the evidence… An accused, however, always runs the risk that, absent any rebuttal, the prosecution’s case may be sufficient to prove the elements of the offence. The fact that an accused has to make such an election is not a breach of the right to silence.”

If this principle applies in a criminal trial, it applies so much more forcefully in the court of public opinion. While the president and others implicated in the Public Protector report have the right to remain silent and not to respond to the damning (often corroborated) facts contained in the report, such silence would have adverse consequences for them which may lead to assumptions of guilt – just as it would in a criminal trial.

While the president and others implicated in the report also have the right to challenge the validity of the report with a view to having it set aside, the choice to try to avoid having to answer the allegations before a commission of inquiry will create the perception that those implicated are guilty of breaches of the Executive Members Ethics Act and, in some cases, the Prevention and Combatting of Corrupt Activities Act.

This does not mean that an interesting argument could not be made to challenge the validity of the remedial action imposed by the Public Protector. The strongest argument would be that the Public Protector had breached the separation of powers by instructing the president to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice who shall provide one name to the president.

The Public Protector also instructed that the judge should be given the power to appoint his/her own staff and to investigate all the issues using the record of this investigation and the report as a starting point and that the commission of inquiry should be given powers of evidence collection that are no less than those of the Public Protector.

Usually the president has the discretion under section 84(2)(f) of the Constitution to appoint commissions of inquiry. The remedial action now fetters this discretion. The question a court will have to answer is whether the special circumstances of this case render this fettering of the president’s constitutional powers constitutionally valid or not. Is it permissible – in these extraordinary circumstances in which the president is being implicated in breaches of the Ethics Act and in possible corruption – for the Public Protector to restrict the constitutional powers of the President?

The problem faced in this case is that there are excellent reasons why the president should not have the discretion to appoint a judge of his choice to head a commission of inquiry to investigate matters delineated by the president. The president is conflicted as he is implicated in wrongdoing which would have to be investigated by the commission of inquiry. It is inevitable that if his discretion is not fettered he would appoint a judge he perceived to be sympathetic to him. This conflict of interest would almost certainly invalidate the entire commission.

I am not making any prediction as to how a court would rule on this novel and difficult constitutional question.

But if the president and others implicated by the facts revealed in the report have nothing to hide, the court will never be asked to decide this matter. Instead, those implicated will eagerly embrace the appointment of the independent commission of inquiry as this will provide them with a credible platform where they would be able to take 55-million South Africans into their confidence to refute the evidence against them.

However, if they try to stop the appointment of the commission of inquiry and in effect choose to try to remain silent, South Africans will – in the words of the Constitutional Court – be entitled to conclude that the evidence is sufficient to prove their guilt. DM