The High Court in Pretoria on Wednesday ruled that the widespread allegations of state capture – the hijacking of the official authority of the state by private interests, particularly the wealthy, politically-connected Gupta family – are deeply worrying and must be thoroughly probed by an independent panel.
“Whether the remedial action [prescribed by former public protector Thuli Madonsela] is appropriate, the court held that there are compelling prima facie evidence that the relationship between the President [Jacob Zuma] and the Gupta family had evolved into state capture, and that the matter is of great public concern,” Judge President Dunstan Mlambo said as he delivered the ruling of a full bench of three high court judges in a packed court.
“The outcome of the investigation by the public protector is deeply concerning, and due to the public protector not having access to the necessary resources, the public protector thinks it best for a commission of inquiry to be instituted in order to achieve her goals of truth-finding and restoring confidence.”
Mlambo said the superior court held that commissions of inquiry are, by their nature, open and transparent to the public, and possess a number of “important advantages”.
“Taking into consideration the budgetary constraint, and the scale of the investigation to be done, [the court finds] the judicial commission of inquiry suitable to carry out the investigation,” said Mlambo.
Last year, the then public protector Thuli Madonsela endorsed that a commission of inquiry be established by Zuma but that the presiding judge should be chosen by the Chief Justice Mogoeng Mogoeng.
Zuma has maintained that Madonsela overstepped her boundaries and had no right to insist that the chief justice be the one to appoint a judge to head up the inquiry.
However, in a damning and far-reaching judgement on Wednesday, the high court ruled that Mogoeng will select the judge to preside over the state capture commission of inquiry as ordered by Madonsela.
“The President [Jacob Zuma] is directed to appoint a commission of inquiry within 30 days, headed by a judge solely selected by the Chief Justice [Mogoeng],” ruled Mlambo.
“The President shall take steps which are necessary to give effect to the remedial action [prescribed by Madonsela] and ensure that the judge who heads the commission of inquiry is given powers to appoint his/her own staff, and to investigate all the issues using the record of the public protector’s investigation and the State Capture report.”
The court also ordered that the commission of inquiry be given powers of evidence collection that are not less than that of the public protector. That inquiry should wrap up the probe with 180 days.
“The president shall submit a copy, with an indication of his intention regarding the implementation [of the commission of inquiry’s recommendations] to Parliament within 14 days of releasing the report,” added Mlambo.
The full bench of judges ordered that the commission of inquiry be “adequately resourced” by the South African National Treasury.