Mkhwebane’s state capture statements expose a lack of appreciation of the law

2018-01-12 18:02

I am compelled into thinking that Public Protector Busisiwe Mkhwebane is inherently obligated to convince us that she is unfit for the demands of her office.

Mkhwebane’s statement welcoming President Jacob Zuma’s appointment of the commission of inquiry into state capture, followed by her subsequent media pronouncements, would have easily been dismissed as a silly attempt at a gag were these not perilous.

Let me explain.

In an apparent attempt at ingratiating herself with a beleaguered and cornered Zuma, including the populists in our midst, Mkhwebane issued a statement in which she implores Zuma thus: “In order to ensure that no stone is left unturned in so far as the allegations of state capture are concerned, and in order to avoid any further allegations of state capture being lodged with the Office of the Public Protector, the Public Protector calls upon the president ... to ensure that the terms of reference for the commission of inquiry are not limited to the issues investigated in the State of Capture report.”

At face value, Mkhwebane’s statement seems innocuous and reasonable, except that it is manifestly flawed.

Furthermore, Mkhwebane’s public pronouncements that Zuma expand the terms of reference to include any allegations of state capture during the apartheid era, are not only reckless but also help expose her lack of appreciation of the law.

At the outset, let me hasten to state that Mkhwebane’s utterances and conduct do not comport with her office.

In case Mkhwebane forgot, the State of Capture report was confined to investigating specific “complaints of alleged improper and unethical conduct by the president [Zuma] and other state functionaries relating to alleged improper relationships and involvement of the Gupta family in the removal and appointment of ministers and directors of state-owned entities resulting in improper and possibly corrupt award of state contracts and benefits to the Gupta family’s businesses.”

Other matters incidental to these investigations would, by necessity, also be followed upon.

Given the fact that the order enjoins the commission to “complete its task and present its report with findings to the president within 180 days”, Mkhwebane’s assertion that the commission traverse matters inclusive of the apartheid era is inherently flawed, would amount to a futile exercise, and thus stands to fall on the grounds of rationality.

It would be far less likely that acts of turpitude by individuals, some long deceased with crucial evidentiary material likely destroyed, dating back to

1948 could be sustained in a court of law.

Also, such inordinately lengthy investigations would, not only be costly but, unlikely to yield any useful or credible information incidental to State of Capture Report No. 6 of 2016/17, which report the court ordered the commission to use as a starting point.

In fact, the commission would likely encounter difficulties in unearthing credible evidence of wrongdoing, or being completed within the mandated 180 days unless a variation to the court order was obtained.

In a statement issued by Zuma announcing the appointment of Deputy Chief Justice Raymond Zondo to head the commission, Zuma is quoted thus: “I am concerned that this matter has occupied the public mind for some time now and deserves urgent attention.”

Any extension of the duration of the commission would, not only be incongruent with Zuma’s statement, but the court order too.

Also, such a variation is unlikely to be acceded to by the courts, not least given Zuma’s court-avowed proclivity to delay justice.

Although Zuma is entitled to determine the terms of reference for the commission, Zuma’s determinations must still pass the crucial test for rationality.

Zuma can’t, for instance, allow the terms of reference to be so broad as to frustrate the efficacy of the commission or delay its outcomes.

There exists widespread public speculation that Mkhwebane conspired with Zuma in an effort to scupper the efficacy of the commission by seeking to prolong its mandate.

This is premised on a justifiable fear that Zuma is desperate and frantically seeks to evade justice.

Assuming this theory is to be believed, it is clear that implicated individuals, including Zuma, are unlikely to avoid prosecution as criminal complaints, stemming from the State of Capture report and so-called “Gupta emails”, have already been registered for investigation and possible prosecution.

In any event, Zuma already faces fraud and corruption charges unrelated to the State of Capture report, which charges wouldn’t be stayed pending the conclusion of the commission’s work.

It is expected that criminal matters against Zuma would find fervour as soon as Cyril Ramaphosa appoints the new national director of public prosecutions, as ordered to do so by the North Gauteng High court.

It should be noted, however, that Zuma is appealing the order.

Incredulously, Mkhwebane implores Zuma to establish what seems to be a mother-of-all commission of inquiries that would pre-empt and “avoid any more allegations of state capture being lodged” with her office.

This request is not only unlawful and impractical, as it is fantastical.

It is intriguing, and equally enthusing, that Zondo’s appointment did not elicit public opprobrium, given his recent penning of the minority judgment in favour of Zuma in the impeachment matter.

Nonetheless, it is still early days with Zondo’s commission and, as Zuma is wont to caution us all: “yinde lendlela esiyihambayo!”

As I conclude, and in deference to her office, let me apologise to Mkhwebane for publicly exposing her fantastical assertions, which in turn accidentally exposed her hopeless ineptness, lack of appreciation of the weight of her office, and the gravity of her probable insanity.

It would, however, be apposite to invoke theoretical physicist Albert Einstein’s proclamation thus: “We all know that light travels faster than sound. That’s why certain people appear bright until you hear them speak.”

Undoubtedly, Mkhwebane’s incessant missteps rudely confirm Einstein’s theorem, while exposing a potential fallacy in the acclaimed belief that hope springs eternal.

For kith, kin and friends’ sake, I sincerely hope that I am wrong.

Khaas is chairperson of Corporate SA, a Johannesburg-based strategic advisory and consultancy firm, and an independent political thought leader. Follow him on Twitter @tebogokhaas

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March 18 2018