With malice aforethought
18 January 2018 11:30 (South Africa)
South Africa

A race against time: Will Guptagate be Thuli's last stand before her term ends in October?

  • Marianne Thamm
    Marianne Thamm
  • South Africa
Photo: Public Protector Thuli Madonsela (Greg Nicolson)

With a fresh victory after President Zuma's legal team conceded in a Constitutional Court challenge that the Public Protector's Nkandla report is binding, Thuli Madonsela might be destined to go out with a bang after the Democratic Alliance requested her office to investigate whether the President's relationship with the Gupta family had breached the Executive Ethics Act. Madonsela's non-renewable seven-year term comes to an end in October, will her gift to South Africa be the truth she will uncover in what promises to be a challenging investigation? By MARIANNE THAMM.

There are 260 outstanding cases being investigated by the underfunded and understaffed Public Protector's office but the biggest challenge for the Chapter 9 institution before Thuli Madonsela steps down in October this year will be a crucial investigation into the alleged links between President Jacob Zuma and the Gupta family.

But, in order to conduct the investigation, Madonsela needs outside help and has reportedly approached our accidental Minster of Finance, Pravin Gordhan, to set aside “a special fund” so that an external team of forensic investigators can assist her office to speedily complete the investigation.

Considering that it took Madonsela almost two years to investigate alleged corruption in relation to upgrades and building at the President's home at Nkandla and to complete her Report No 25/ of 2013/14 “Secure in Comfort”, it is unlikely that this investigation, should it be implemented, would be completed by the time Madonsela leaves office. It is likely that her successor will have to continue the work and live up to the high standards Madonsela has set in her time in office.

Investigations into Nkandla began in 2009 after the Mail and Guardian had published a story about the then R65 million expenditure.

Apart from the release of a statement by the Presidency on 03 December 2009, denying that government was footing the bill, nothing seems to have been done by government to verify the 2009 allegations or attempt to arrest the costs which the article predicted would continue to rise. Three years later and a year after a complaint was lodged with my office, the Minister of Public Works appointed a Task Team of officials from the departments involved in the impugned upgrades at the President’s private residence, to investigate specified matters in relation therewith. The Task Team’s report was released to the public on 19 December 2013,” Madonsela wrote in the final report.

Seven further complaints about the Nkandla upgrades were lodged between 13 December 2011 and November 2012.

On 18 March, 2016, Democratic Alliance leader Mmusi Maimane, as well as The Dominican Order of Southern Africa, lodged separate complaints with the Public Protector requesting her office to investigate whether President Zuma had violated the Executive Members' Ethics Act and also whether the Gupta family had involved themselves in ministerial appointments.

Untangling the web that surrounds President Zuma and his close friends the Gupta family and their alleged attempt at “state capture” will be a gruelling and difficult task with many expected legal obstacles to be placed along the way. It will also depend on the willingness of those the family have tried to influence to break ranks and come forward to provide affidavits under oath.

While Madonsela's office is conducting a preliminary assessment into the complaint lodged by the Dominican Order and whether it has the jurisdiction to investigate this, it is bound to investigate the DA's complaint made under the Executive Members Ethics Act, which can only be invoked by members of parliament and provincial legislatures.

The DA has asked Madonsela to investigate whether President Zuma had violated the act “by exposing himself to any situation involving the risk of a conflict between his official responsibilities and his private interests - using his position‚ or any information entrusted to him‚ to enrich himself or improperly benefit any other person‚ and - acting in a way that may compromise the credibility or integrity of his office or of the government.”

Meanwhile, the DA has also laid charges of corruption with the Hawks in Cape Town against Atul Gupta, Ajay Gupta and Duduzane Zuma in terms of the Prevention and Combating of Corrupt Activities Act. The case, following Deputy Minister of Finance, Mcebisi Jonas' statement that members of the Gupta family had offered him the top Treasury job, has now been referred to the anti-corruption unit within the Directorate of Priority Crime Investigations or the Hawks.

The allegations made by the Deputy Minister are very serious and amount to prima facie evidence of corruption and should be reported to the South African Police Service, not to ANC secretary-general Gwede Mantashe who is clearly trying to politically manage and contain the political fallout from 'Zuptagate',” said DA Shadow Minister of Finance, David Maynier.

But the question right now is will the Minister of Finance come to Madonsela's aid.

In 2014 Madonsela informed parliament that her office was “technically insolvent” because of the 40,000 cases her staff of 314 were required to handle. Before the 2015/16 budget speech she requested an additional R200 million but was criticised by the ruling party in a presentation in April to the Justice and Correctional Services portfolio committee.

Instead of R200 million then Finance Minster Nhlanhla Nene allocated R60 million to the office over a three year period totalling a budget of R246 million for 2015/16.

Madonsela, who was appointed by President Zuma in 2009, has become, according to David Lewis, director of Corruption Watch, “South Africa’s, most important bulwark against corruption”.

She has been fearless and independent during her term during which her office led several high-profile and critical investigations including into Julius Malema, Bheki Cele as well as the late Sicelo Shiceko, Minister of Cooperative Governance and Gwen Mahlangu-Nkabinde, Minister of Public Works. Her office has also investigated the appointment of Hlaudi Motsoeneng as SABC COO and exposed corruption in the South African Post Office.

And then there is, of course, the remedial action outlined in the Nkandla Report, her most crucial challenge during her stewardship and which the President has finally accepted after a desperate attempt to challenge these with a discredited alternative report by Minister of Police, Nathi Nhlekho.

Madonsela has weathered threats and insults, including that she is a “CIA Agent” by those her office has investigated and has also been accused of favouring the Democratic Alliance in a 2011 complaint against the DA-run Midvaal municipality.

But she will leave office in October unblemished, and perhaps in a blaze of glory if she manages to begin to untangle the threads linking President Zuma and the Gupta family to any wrongdoing or undue influence.

Should she see the process to its end, it will be both Madonsela as well as Zuma's legacies, one positive, the other deeply destructive.

Madonsela was nominated for the position by the NGO South African Women in Dialogue after the term of former Public Protector, Lawrence Mushwana's (who was an ANC MP) term can to an end. Madonsela was not a member of any political party at the time and the National Assembly passed a 100 percent vote in her favour before she was appointed by President Zuma.

Will she go out with a bang, helping President Zuma go out with a whimper? DM

Photo: Public Protector Thuli Madonsela (Greg Nicolson).

  • Marianne Thamm
    Marianne Thamm
  • South Africa

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