Days of Zondo

State Capture Inquiry kicks off with Gupta Inc’s consolidated high crimes and misdemeanours

By Jessica Bezuidenhout 21 August 2018

Legal documents are prepared during the first day of the judicial commission of inquiry into state capture held in Johannesburg, South Africa, 20 August 2018. EPA-EFE/KIM LUDBROOK

The opening day of the judicial commission of inquiry into State Capture effectively centralised the case against the Guptas and, with that, the role of former president Jacob Zuma and other enablers in government will take centre stage as the days turn into weeks.

For the uninitiated, the first day of the Commission of Inquiry into State Capture could easily be mistaken for a Gupta Inc. charge sheet.

Years of alleged undue influence over government officials and state-owned enterprises, multiple costly investigations that unearthed their hidden hand in big money deals and screaming headlines, much of which emanated from the #GuptaLeaks, all culminated in a broad overview of the case the controversial family and their enablers will have to answer to before deputy chief justice Raymond Zondo.

The Estina dairy farm scandal, the Waterkloof aircraft landing, the convenient early naturalisation of Gupta family members, irregular efforts to bail them out of their banking woes, and the redirection of government advertising spend to the Gupta-owned newspaper, are but the beginning of their official State Capture Inquiry woes.

These allegations – along with claims that the once powerful family had offered Cabinet positions to former deputy finance minister Mcebisi Jonas and former ANC MP, Vytjie Mentor – will for the first time be tested in public during the formal inquiry set to run over the next few weeks.

The first phase of the commission will focus, among other things, on the alleged unlawful and irregular executive dismissals, appointments and those to the boards of state-owned companies.

Zuma’s axing of former finance minister Nhlanhla Nene in 2015, the arrival of Des van Rooyen as his replacement and the appointment of Van Rooyen’s advisers are also set to be covered.

While the commission’s legal team said they will not presume a particular outcome, they have submitted a provisional set of “foundational reports” that will inform parts of the case against the Guptas, Zuma and other enablers.

That extended list of documents provides a clear line to the depth of the case against the Guptas and implicated individuals which is set to be covered over the course of its two-year duration.

The reports include the Public Protector’s State of Capture report which covers the role of the former president, the Guptas’ acquisition of Optimum Coal Mine with the help of Eskom officials, an EnsAFrica Forensic report into the Estina case, a Werksmans report into Transnet’s acquisition of the 1,064 locomotives, the Budlender report which covers global consulting firm, McKinsey & Co and Trillian’s Eskom deal and two reports from parliamentary inquiries involving the Department of Home Affairs and the Department of Public Enterprises.

Zuma and his son, Duduzane, are both implicated individuals. And like the Guptas, they too had legal teams present at Monday’s proceedings.

Advocate Muzi Sikhakhane, acting for Zuma, raised an issue with the short notice his client had received in respect of three initial matters in which he is implicated: Mentor is expected to testify to Zuma’s presence at the Guptas’ Saxonwold home when she was offered a Cabinet post (one allegedly coupled with instructions of what the Guptas expected from her) while former government communications head, Themba Maseko, is scheduled to testify next week to a call he had received from Zuma to help them get a share of government advertising spend.

A third witness, the acting DG of government communications, Phumla Williams, is also lined up to testify.

The conduct of the former president will be under scrutiny against his Oath of Office and the Executive Members Ethics Act which stipulate that members may not act in any way that is inconsistent with their office or use their position to enrich themselves or improperly benefit any other person.

Ajay Gupta had senior advocate Mike Hellens in his corner for initial and “any” subsequent testimony that may implicate him.

This inquiry, set up by Zuma, got off the ground with Justice Zondo highlighting a “disappointing” lack of public submissions following a call for citizens to come forward. With multiple criminal investigations under way into some of the allegations to be covered by the commission, there has been concern from some quarters that it may just result in a repeat of what’s already known.

But, while Zuma and the Guptas will feature prominently, the commission appears to be set on a long game, one that not only seeks to uncover the rot under the Gupta reign.

Its terms of reference make provision for a broader undertaking into the existence of State Capture, the causes thereof and mechanisms required to prevent it from happening again.

Head of the commission’s legal team, Advocate Paul Pretorius, asked:

Did what occur not only concern acts of corruption but also a deliberate weakening of constitutional government and repurposing of constitutional state structures?”

In other words, was there a deliberate attempt to weaken democratic process and to shift political decision-making away from constitutional bodies?”

In short, Pretorius raised whether the conduct of the culprits in State Capture (not only the Guptas) happened during a systematic undermining of the country’s laws. He also questioned whether this happens at the hands of a network of alliances between persons and entities both inside and outside of the state.

With the mammoth task of testing the long list of allegations, the commission would also seek to explore how some entities were ripe for the picking in violation of the Public Finance Management Act or the Prevention and Combating of Corrupt Practices Act while others were able to withstand the “corrosive nature” of State Capture, fraud and corruption.

The hearing continues on Tuesday morning. DM

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