We find ourselves at a truly defining moment in our nation’s young democracy. Yesterday I was present at the North Gauteng High Court in Pretoria where a full bench handed down an historic and instructive ruling rejecting President Zuma’s baseless review of the Public Protector’s State of Capture report and its recommendations.
The court unanimously found that the Public Protector’s State of Capture report stands as is, and the President’s conduct in trying to block the release of the report was an “abuse of judicial process” and an attempt to “stymie the fulfilment of a constitutional obligation by the Office of the Public Protector”.
As such, the Court ordered President Zuma to personally pay the legal costs of his failed attempt to interdict the release of the report, as well as the costs of the failed review proceedings, which we estimate at around R6 million.
This defeat for Zuma is a landmark victory for the people of South Africa. For too long, South Africans have been personally paying the extravagant legal bill of a President who – instead of leading a country - spends most of his days in court, abusing legal process in order to keep himself and his friends and family in business and out of prison.
The Court’s judgment is a strong indictment on the leadership of Jacob Zuma. There are several overt statements by the Court that directly support the view that the President is indeed running a shadow mafia state for his own benefit. This is most aptly described by Judge Mlambo at paragraph 116 of the judgment, where he states that:
“[t]he allegations of State Capture in the report are extremely serious. They amount to allegations that the President and members of the Executive have exercised their powers, at least on occasion, not in the public interest as they are required to do by the Constitution, but rather at the behest of a private family and to further its financial interests.”
Sadly, this has become the ANC’s legacy under Jacob Zuma: a party fixated on self-enrichment, and self-advancement – to the detriment of the people of our nation. Whatever happens at the ANC’s elective conference over the next few days is immaterial to the future of South Africa. No matter who is elected, the internal systems of patronage and self-enrichment cannot be overturned by one person. The ANC is past the point of no return, and cannot self-correct. The future of South Africa lies in a coalition-led government post 2019.
The description of “State Capture” in the current context is a simple one, and was well defined by the Court. That is, the relationship between the President and the Gupta family having evolved to the point where the Gupta family have influence over the appointment of cabinet ministers and directors on boards of SOEs, and then “leveraging those relationships to get preferential treatment in state contracts, access to state-provided finance, and award of business licences.”
This is the evil that is stealing opportunity from our people, and this is the evil we will continue to fight so that corruption and “State Capture” is defeated, and all South Africans are given the chance to access opportunity.
Implementation of the Public Protector’s recommendations
The effect of yesterday’s unanimous judgment is that the Public Protector’s State of Capture report stands as is, along with its binding recommendations. Thus the President must at once establish a Judicial Commission of Inquiry into “State Capture” - as ordered to by the Public Protector. There can be no more delays in the quest for accountability in this matter. The commission must be established within 30 days, which makes Friday 12 January 2018 the final day for establishment.
The commission must be headed by a judge selected by Chief Justice Mogoeng Mogoeng, and has 180 days to complete its work.
We are of the view that this is the appropriate remedial action in order to thoroughly and independently investigate the prima facie evidence of “State Capture”. As the court stated yesterday, the Public Protector’s report constitutes prima facie findings that point to serious misconduct or impropriety on the part of the President, the Gupta family, and the persons, functionaries and entities referred to in the report. Moreover, this evidence is a sufficient and appropriate basis for the Public Protector to have taken remedial action.
In her report, the Public Protector was clear in saying that the President’s constitutional power to establish a Judicial Commission of Inquiry as per section 84(2)(f) is not an untrammelled one. In fact, the Court states that from the wording of section 84, the power to establish a commission of inquiry must be exercised within the constraints that the constitution imposes.
Indeed, Section 182(1)(c) of the Constitution requires the Public Protector to provide an effective remedy for state misconduct. And in this matter and context, the effective remedy the Public Protector elected was to order further investigation and for the President to establish a Judicial Commission of Inquiry.
The President has a “clear, personal interest in the outcome of the commission”. Therefore the court found that the Public Protector’s recommendation that the Chief Justice select the judge who is to preside over the commission is “both necessary and appropriate in order to render the remedial action taken suitable and effective”.
If the President fails to establish the commission within 30 days, the DA will launch an application in the High Court in terms of the Uniform Rules of Court (URC) to force compliance with the rulings – regardless of any appeal by President Zuma and his litigious legal team.
The Court ordered President Zuma to personally pay the legal costs of both his attempt to interdict the release of the State of Capture report, as well as the entire review proceedings whereby he sought to set the report aside.
This ruling must welcomed. For too long, Jacob Zuma has wasted millions on funding his constant and frivolous litigation.
The reason given by the court for such a strong ruling is that the President’s action in attempting to block the release of the report amounted to an “abuse of judicial process”, and an attempt to stymie the fulfilment of a constitutional obligation by the Office of the Public Protector”. Moreover, the Court found that the review application was a “clear non-starter”, and the President was “seriously reckless” in pursuing it as he has done. This conduct, the court finds, falls far short of the standard expressed in Section 195 of the Constitution.
As South Africans, it should concern us that this is the first instance since the dawn of democracy in 1994 that a sitting President has been required to personally pay – out of his/her own pocket – the costs of litigation. This is the mark of a President who is solely focused on personal gain – not the interests of the country and its people.
On a conservative estimate, taking into consideration the DA’s own expenditure on this matter, we estimate the total cost the President is liable for at roughly R6 million – which is comparable to his court-ordered payment of the non-security upgrades at his Nkandla homestead. This figure compromises an estimate of R4.45 million for litigants who brought the action, as well as R1.5 million that was paid to his own legal team. The court did not expressly require the President to pay his own legal costs, as these are covered by the State Attorney. However, we will be pressuring the President to personally pay these costs as well, since it is unconscionable that the taxpayers of South Africa should have to pick up the tab for his frivolous litigation.
It is our view that the President must personally pay back this money, he must do so within the next 30 days, and he must table his proof of payment in Parliament by no later than 31 January 2018.
Breach of Executive Ethics Code
In the DA’s initial complaint to the Public Protector, we requested an investigation into whether there had been a breach of the Executive Ethics Code by the President, specifically relating to his conduct around the appointment of cabinet ministers and SOE executives and board members.
In her investigation, the Public Protector interviewed a comprehensive list of witnesses, including Themba Maseko, Barbara Hogan, Nhlanhla Nene, Pravin Gordhan, Rob Davies, Ajay Gupta, Fana Hlongwane and Fikile Mbalula.
From the Public Protector’s findings, there is prima facie evidence of a breach of the Executive Ethics Code by the President, specifically the following sections:
- Section 2.3(d) – Use of position or any information entrusted to them, to enrich themselves or improperly benefit any other persons;
- Section 2.3 (e) – Use of information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties;
- Section 2.3(f) - Expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests;
This is concerned primarily with Jacob Zuma seemingly allowing the Gupta family and his son to engage or be involved in the process of appointing and dismissing members of the Executive.
The Public Protector was unable to come to a conclusive finding as to whether there was a definitive breach of the Code by the President. Thus, this must form part of the terms of reference of the commission of inquiry to be set up by 12 January 2018. If it fails to form part of the terms of reference, the DA will seek legal advice on whether the terms of reference can be reviewed and brought in line with the findings of Public Protector’s report.
A breach of the Executive Ethics Code and Act is a serious offence. If the President has breached such, this must be established and finalised by the commission of inquiry.
There is no doubt that Jacob Zuma is unfit to hold the highest office in the land. It is our view that whoever is elected at ANC elective conference must recall Zuma as President of the Republic as their first call.
If the next ANC President fails to do so, we will await the constitutional court application brought DA, EFF, COPE & UDM which seeks to establish the procedures to be followed in the impeachment proceedings against any President.
This case is vitally important as the Constitutional Court has the opportunity to provide guidelines for clear and proper procedures on impeachment proceedings, which will allow for those who break their oath of office to be held to account.
These rules should also ensure that no one party can use their majority to frustrate impeachment proceedings. They should also provide an opportunity, for instance, for the President to provide evidence in his or her defence or in mitigation.
Once this application is finalised, we will consider moving an impeachment motion in terms of section 89(1)(a) of the Constitution.
As yesterday’s judgment revealed, in addition to the damning findings the Public Protector made against Jacob Zuma in her State of Capture report, a number of other substantial adverse findings may be made against the President, including:
- The President’s conduct in trying to block the release of the Public Protector’s State of Capture Report was an “abuse of judicial process” and an attempt to “stymie the fulfilment of a constitutional obligation by the Office of the Public Protector”;
- The President’s continued litigation in this matter was “unreasonable” and that various statements made resulted in an “irreconcilable contradiction”, citing that the President potentially committed the crime of perjury; and
- The President’s conduct falls far short of the high standards expressed in section 195 of the Constitution
President Zuma cannot continue to break the law, show disregard for the Constitution, and manipulate organs of state for his own benefit. He must be removed from office once and for all.
In yesterday’s judgment, the Court noted that President Zuma’s continued litigation in this matter was “unreasonable” and that various statements made resulted in an “irreconcilable contradiction”. While the court chose not to make any findings on whether perjury had been committed, as this was not their task on the day, it ruled out the possibility of any typing errors which might have excused the President’s inconsistencies.
Section 319(c) of the Criminal Procedure Act 56 of 1955 states as follows: “If a person has made any statement on oath whether orally or in writing, and he thereafter on another oath makes another statement as aforesaid, which is in conflict with such first mentioned statement, he shall be guilty of an offence and may… be convicted of such an offence and punished with the penalties prescribed by law for the crime of perjury…”
In President Zuma’s answering affidavit filed on 21 October 2016 in the North Gauteng High Court, President Zuma stated that “Should it later transpire that the Public Protector produced a final report without affording me my right to just administrative action, then in that event the report should be released”.
In his second supporting affidavit, filed on 29 October 2016 in the same court, he stated the following: “I have stated under oath in the answering affidavit to the Democratic Alliance intervention application, that if the report is final it should be released. tTis is found at paragraph 81. This is a typing error as it should have read that ‘(S)hould it later transpire that the Public Protector produced a final report without affording me my right to just administrative action, then in that event the report should not be released.’”
President Zuma’s statement in the First Affidavit, to the effect that the Report was not yet finalized, was false. On available evidence, there is good reason to believe that President Zuma knew it to be false at this time, or foresaw that it may be false.
President Zuma’s statement in the Second Affidavit, to the effect that he had committed a typing error, and had averred the opposite of what he intended, is undermined by his surrounding statements, and therefore similarly appears to be a false statement made under oath in bad faith
That the President continued to take legal action preventing the release of the Report, despite knowing that it had been finalized, is further evidence of his perjury. Any averment under oath in support of the application was inconsistent with the truth of the matter as he knew it to be, being that the Report was already finalized and therefore could not be legally interdicted from release.
Therefore, prima facie evidence exists to support the allegation that President Zuma has committed the crime of perjury, which must be further investigated by the police. Therefore we will today be handing over an affidavit to the police and laying criminal charges of perjury against President Jacob Zuma later today for his sinister attempt to mislead the courts, abuse judicial process, and ultimately undermine the law and the constitution of the republic.
Considering the scale and nature of this matter, we are confident it will be given the attention it requires from authorities.
Yesterday’s judgment was another win for democracy, the rule of law, and the people of South Africa. Jacob Zuma will face the consequences of his dirty deeds, no matter how much delaying or dithering he does.
It is now up to parliament, the police, and the commission of inquiry to bring justice in this matter. The DA will continue to ensure that the Constitution and the rule of law are respected and upheld by all who hold elected office, none more so than the President. Those who fail to do so will be brought to book.