Free advice is usually worth what one pays for it. Nevertheless, the evidence leaders in the State Capture Commission, whoever they may be, will have their time cut out for them if they are going to meet the six-month deadline set by the Office of the Public Protector in the terms of reference of the commission.
The evidence leaders in the State Capture Commission may need to adopt a two-pronged and simultaneous approach by engaging immediately with those accused of State Capture and those accusing them. It is relatively simple to subpoena the Guptas for their documents, computer hard drives, emails and accounting records of the dishonourable mentions they have received from Scorpio, amaBhungane, News24 and the authors of the several books written about the #GuptaLeaks: The Republic of Gupta, The President’s Keepers and Enemy of the People being a good start.
Simultaneously, all those who have accused the president, the Cabinet, the state-owned corporations and the business community of involvement in State Capture or other corruption must be required to put up or shut up. Their hard evidence, the treasure trove of leaked documents, the whistle-blowers’ statements and the other bases for the accusations, often contained in reports by the public protector and court proceedings, must be collected and collated in categories that make sense and can become themes of the SCC.
The files of the Hawks and the NPA, or in some cases the SAPS, must be produced pronto in all criminal matters under investigation from the Nkandla debacle that was the subject of the Secure in Comfort report of the Office of the Public Protector, to the unlawful and corrupt agreement disposing of the services of NDPP Mxolisi Nxasana, to all of the dockets concerning shenanigans at state-owned corporations from the SABC to SAA, Denel to Eskom and Transnet.
The State of Capture report of the Office of the Public Protector is no more than a starting point. It ante-dates the springing up of the #GuptaLeaks and was published before the SABC, Transnet and Eskom parliamentary hearings. Nevertheless, the investigative work done to produce the report as the parting gift to the nation of retiring Public Protector, Thuli Madonsela, in October 2016, does not have to be re-invented for the SCC. The unanswered questions in her well-publicised and now famous interview with the president and his consigliere, Michael Hulley, should be answered in writing by the president before next Friday. He has had since October 2016 to consider his replies.
On the basis of the material immediately accessible from these sources, it will be possible to ascertain whether the #GuptaLeaks are real (a no-brainer, despite bald denials) and to prepare for the interrogation of the accusers and the accused in a manner that is focused on a case by case basis. Complainants and whistle-blowers should be led in evidence first with the opportunity for questions to be put to them concisely and within defined time limits and parameters. Then, those accused of State Capture, who have not yet fled, can be asked to give an account of their doings to the SCC on the same basis.
It may become necessary to appoint teams of evidence leaders on a basis that makes the completion of the task of the SCC possible “diligently and without delay”, as the Constitution puts it. A team per state-owned corporation, a team for the president, a team for the rest of the Cabinet including deputy ministers and putative deputy ministers such as Jonas and Mentor and a team to invigorate the Nkandla investigation may be indicated. A team to look into executive ethics breaches and a team for the likes of Trillion, McKinsey and SAP might also be required. Evidence leaders working as investigative prosecutors seems to be indicated, given the nature of the information already in the public domain. Some argue cogently that it is now no longer necessary in have an SCC; prosecutions are the next step.
Unfortunately the SCC has an elephant in the room. One which could stymie the most well-intentioned investigators and evidence leaders. The legitimacy, legality and constitutionality of the SCC is questionable and will surely be questioned the day after the first subpoena duces tecum is served.
There is a fundamental problem with the basis upon which the SCC, after so long a gestation period, has been called into existence. It is a racing certainty that one or more of the “accused” will take the point that the SCC as constituted at present is illegal for its breach of the doctrine of the separation of powers and due to the unlawfulness of the remedial action required in the State of Capture report.
The SCC, now that it exists, should apply directly to the Constitutional Court for a declaratory order that it is properly constituted, meaning that it was not improper for the Chief Justice to select the commissioner and that the role of the president in setting up the terms of reference does not fall foul of the “risk of conflict of interest” provisions of the Constitution by which he is bound. Those who may wish to argue that the president was unable to act and ought to have been replaced by the deputy president in the establishment of the commission should be given the opportunity of putting their case. Much has been made of the conflict between the personal and official interests of the president. The legal test is no higher than the risk of such a conflict, no actual conflict need be proved. The crucible of argument in our highest court is the only place where these issues can be finally determined by the nine justices left standing. Both the Chief Justice and his deputy have disqualified themselves by going along with the appointment of the SCC. They would surely not have done so had they thought it improper to participate as selector and commissioner respectively.
In this way legal finality on the questions hanging around the different approaches adopted in the lower courts will be effected speedily. These issues, including that regarding the replacement of the current NDPP, Shaun Abrahams, being effected by the deputy president and the dismissal of the president’s review of the remedial action that has, after elephantine gestation, given birth to the SCC, will be finalised. The ambivalent stance of the president towards the legality of the modus operandi required of him by order of the court in effecting the remedial action, will fall away. Indeed, given his position, he may wish to oppose the granting of the declaratory order suggested. He has not withdrawn his appeal.
If the SCC does not check its pedigree in this way, the nation can look forward to endless interdicts, reviews, applications for leave to appeal and appeals that will take years more than the 180 days available to the SCC to finalise its work.
This unending litigation is something up with which the nation cannot put. The spectre of an ignominious rerun of the benighted Seriti Commission looms large. Adroit manoeuvring is required to prevent the SCC from being either stillborn or abortive. DM
Paul Hoffman SC is a director of Accountability Now
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"Look for lessons about haunting when there are thousands of ghosts; when entire societies become haunted by terrible deeds that are systematically occurring and are simultaneously denied by every public organ of governance and communication." ~ Avery Gordon