Thuli Madonsela left the office of the Public Protector in dramatic style on Friday with a final media briefing and two court applications preventing her from releasing her much awaited “state capture” report into the dealings of the Gupta family. For seven years, she was the epitome of South Africa’s “protector”. There have been concerns in society about what would happen when Madonsela goes. Finance Minister Pravin Gordhan answered the question. He used South Africa’s court system to break open the Gupta chamber of secrets – a manoeuvre that corners President Jacob Zuma and his friends. By RANJENI MUNUSAMY.
Had the National Prosecuting Authority (NPA) not decided to charge Pravin Gordhan with “fraud” last week, he would in all likelihood have continued with his plans to travel to Goa, India, as part of the South African government delegation attending the BRICS Summit. As it turned out, instead of engaging in discussions with the governments of Brazil, Russia, India and China, Gordhan lodged his explosive affidavit in the Pretoria High Court on Friday. The affidavit, revealed by amaBhungane in Daily Maverick on Saturday, was part of the application seeking a declaratory order that he is “not by law empowered or obliged” to intervene in the relationship with the Gupta companies and the banks that decided to close their accounts.
The court action was probably contemplated for some time, particularly after Mineral Resources Minister Mosebenzi Zwane lied to the nation that Cabinet had resolved that President Jacob Zuma should appoint an inquiry into the closure of the Gupta bank accounts. But Gordhan signed the affidavit on Thursday, October 13, 2016, the day he and his deputy Mcebisi Jonas would have been travelling to India. Early on Friday morning, South African government officials, already in Goa for the summit, were stunned to discover that the finance minister and his deputy had withdrawn from the summit.
The explanation from the National Treasury is that Gordhan pulled out of the trip to prepare for the Medium Term Budget Policy Statement on October 26. But both the BRICS Summit and the Medium Term Budget were scheduled months ago and this would have been factored into National Treasury’s planning.
Gordhan obviously did not want to participate in the farce of accompanying Zuma on the trip when the president was aware that he was to be served with a summons by NPA and allowed the chips to fall. Gordhan therefore decided to attack those behind the move to have him charged and then removed from his job or forced into resigning because of the case pending against him.
The application for a declaratory order was something of a masterstroke.
Ever since it was announced in April that Standard Bank, ABSA, First National Bank and Nedbank decided to close the Guptas’ company accounts, the media has tried to find out what prompted the unprecedented move. The Guptas were raising hell and making heady accusations about the reasons for the decision by the banks, including that they were victims of an “anti-competitive and politically-motivated campaign”. Gordhan reveals in his application how he was hounded by Oakbay CEO Nazeem Howa to intervene and force the banks to reopen the accounts.
The Guptas used their connections in government, as they have become accustomed to doing, to pressure the banks, to the point of threatening them with an inquiry appointed by the president. Still the banks could not respond to them and declined all attempts by journalists to access information about the Guptas, saying they had to protect their clients’ confidentiality.
Buoyed by the flood of support since being summonsed by the NPA to appear in court on November 2, Gordhan lodged his application for a declaratory order on Friday – a move that blew the lid off “suspicious and unusual transactions” to the value of R6.8 billion. By citing the four banks, the Governor of the South African Reserve Bank, the Registrar of Banks and the Director of the Financial Intelligence Centre (FIC) as respondents, Gordhan opened the door for all of them to provide the court with information in their possession about suspicious transactions of the Guptas. A certificate issued by the FIC details the litany of suspicious transactions and movement of money to and from the Guptas accounts.
Those who oppose the application have 15 days to lodge answering affidavits. It will be interesting to see how the Guptas explain the transactions and clarify why they had not opted to take the banks to court to challenge the closure of their accounts, as Gordhan had advised them to do several times.
While the Guptas must respond legally to the application, there are no doubt furious to be caught off guard and all their dodgy dealings made public. They are likely to retaliate by trying to get Zuma to act against Gordhan.
But Zuma would be cautious now. After being confronted by former Public Protector Thuli Madonsela with a barrage of questions about his relationship with the Guptas, his family’s connections to them, what gifts he received from them, their involvement in the purchase of a house in Waterkloof, Pretoria for one of his wives, and his reasons for firing former finance minister Nhlanhla Nene, Zuma would be weary about being seen to be acting on their behalf.
What would add to Zuma’s anxiety is a statement issued by the ANC on Friday saying they “looked forward” to the release of the Public Protector’s “state capture” report. “The Public Protector’s final report into the matter, with its binding recommendations, which are at all times subject to judicial review, will assist the ANC and South Africa to gain clarity on the allegations and point to the resolution of the reported challenges.”
The ANC statement was issued after Zuma and Cooperative Governance Minister Des van Rooyen lodged applications for interdicts against the release of the preliminary report. After counter applications by opposition parties for Madonsela to release her report before she left office, a court order was issued to “preserve” the report in its current form.
Zuma would also be aware of the momentum building around Gordhan’s court appearance on November 2, and the pledges of support for the finance minister from across society, as well as in Cabinet, the ANC and the alliance. The NPA’s decision to charge Gordhan has also prompted Deputy President Cyril Ramaphosa to publicly state his support for the minister.
“As a member of the National Executive, I lend my support to Minister Gordhan as he faces charges brought against him by the National Prosecuting Authority. I have known and worked with Minister Gordhan both in government and during the days of the prosecution of the struggle for a non-racial, non-sexist democratic society,” Ramaphosa said in a statement.
While Zuma also “reaffirmed his support” for Gordhan last week, it is widely believed that he is part of the onslaught against the minister. Any move he will make against Gordhan now is likely to provoke a massive backlash, including from inside the ANC and could result in resignations from Cabinet.
If Zuma pressures Gordhan to resign because of the charges against him, there is another inherent danger for the president. With his Supreme Court appeal pending on corruption charges being reinstated against him, Zuma could also carry the status of an “accused person” in the not too distant future. If he creates a precedent by forcing Gordhan to resign based on the charges he faces, surely Zuma too should resign should the court rule against him.
Thanks to Madonsela and Gordhan, Zuma and his friends, the Guptas, find themselves in quite a fix. While they are now free of Madonsela, Gordhan moved quickly to box them in. The Guptas will for the first time have to explain themselves and their dubious business dealings to a judge. No amount of political connections, cheerleaders on their payroll or fake twitter accounts can help them wriggle out of that conundrum.
Zuma, meanwhile, needs to think carefully before acting against Gordhan or going out to bat again for the Guptas. Unlike with the Nkandla matter when people threw themselves under the bus to defend him, senior members of the ANC like the deputy president, some members of Cabinet and ANC MPs are lining up behind Gordhan. It is no longer just about civil society and veterans speaking out against the president and this bouncing off him. Zuma faces the real danger of being isolated as his comrades and subordinates close ranks around Gordhan.
A week ago, NPA head Shaun Abrahams and the head of the Hawks, Mthandazo Ntlemeza, who has been determined to arrest Gordhan, looked like they had South Africa in their grip. The announcement of charges being brought against Gordhan caused massive financial losses and increased the chances of a sovereign ratings downgrade for the country.
Seven days later, attention is on Gordhan’s bombshell move and the contents of Madonsela’s preliminary report on state capture, which could be revealed on Tuesday after Zuma and Van Rooyen’s applications are heard.
South Africa might be feeling a little exposed and jittery with Madonsela no longer our protector. But Gordhan showed how the use of the courts and institutions like the FIC are able to protect us if we think more imaginatively.
South Africans need to be the ultimate protectors of our democracy and the integrity of government institutions instead of expecting to be protected. Now that Madonsela has left the Office of the Public Protector, people cannot wring their hands waiting to see if she will be reincarnated in her successor. We all need to grow up, and, like Gordhan, step into the breach. DM
Photo: Finance Minister Pravin Gordhan (Reuters), Former Public Protector Thuli Madonsela (Greg Nicolson / Daily Maverick)
"Man is by nature a political animal" ~ Aristotle