ANALYSIS
President Jacob Zuma does not want an inquiry into allegations of state capture. He never wanted Thuli Madonsela, the former public protector, to complete her investigation into it and he wants its subsequent findings to be struck from the record books.
If there ever was any inkling whatsoever that Zuma will use anything and everything in his means to thwart Madonsela's investigation and to manipulate and control the process, surely that has now been dispelled with.
On Tuesday in the Pretoria High Court, advocate Ishmael Semenya made it abundantly clear that Zuma had no intention of appointing a judicial commission of inquiry, as he had committed to in the past. Semenya argued that all the remedial actions set out in Madonsela's 355-page report titled "State of Capture" must be set aside, that she cannot direct the executive what to do and that she has basically "outsourced" the state capture investigation to the judiciary.
Not so, argued advocates Vincent Maleka (on behalf of the Public Protector), Tembeka Ngcukaitobi (on behalf of the EFF) and Dali Mpofu (on behalf of the UDM and Cope). The president needs to act rationally and according to the Constitution. Moreover, there is a clear conflict of interest in the person under scrutiny also appointing the investigator.
But the most telling exchange was when Judge Dunstan Mlambo explained how he saw events from the bench. Amanda Khoza from News24 reported:
Phillip de Wet from Mail&Guardian reported it thus:
Madonsela went to enormous lengths to solicit reaction -- any reaction -- from Zuma and his office since her office received three complaints in March 2016.
She sent her first letter to the presidency in the same month, inviting a reply to the allegations and the implications in terms of the Executive Members' Ethics Act. There was no reply.
She sent a second letter, again pressing the president for reaction to the allegations on 22 April 2016. There was no reply.
By then state capture was a national talking point. Mcebisi Jonas, the then deputy minister of finance, issued a statement that the Guptas tried to bribe him. ANC MP Vytjie Mentor went public about the Guptas' approaches to her (and Zuma's alleged presence in the Guptas' home) and Themba Maseko, who was fired as Cabinet spokesperson and head of GCIS, explained how the president's friends bullied him. In the same period, Gwede Mantashe, the ANC's secretary general, announced that his office would be investigating the matter.
But Zuma did nothing, as Mlambo put it to Semenya.
On 13 September 2016, Madonsela addressed a third letter to Zuma, requesting an interview with the president to discuss state capture, the Guptas and his son, Duduzane. Madonsela had to wait for three weeks before Zuma could see her on 6 October 2016, nine days before her term of office was to expire.
The day Madonsela challenged Zuma... and Hulley
Of everything Madonsela left South Africans when she left office -- a belief in the rule of law, trust in some constitutional bodies and accountability and a conviction in justice -- the transcript of that October interview is one of the most valuable.
She appended the full transcript to her report, as her constitutionally and statutory powers allow her to do. It gives fascinating insight into Zuma's thought process, his flexible relationship with honesty and truthfulness and how Michael Hulley, surely his most trusted consiglieri, operates.
Madonsela, according to the transcript, very gently tries to lay the legal framework for her investigation, explain the chronology and what she would like from him. But for most of the four-hour interview, he remains dead-quiet, hiding behind Hulley who repels any and every effort to extract some form of acknowledgement or detail.
Hulley argues Zuma needs time to prepare. Madonsela says yes, she agrees (on page 23), and explains she contacted him first. Also, everything is in the public domain:
"I want to come to the issue of preparation. You are right Sir, that you can't ambush a person, especially when there are serious allegations against that person. That is why the President was the first person I wrote to and there is nothing new in the Section 7(9) Notice that differs from the letter I wrote on the 22nd (of April 2016).
"The only thing that differs there is that we now provide some background information that contextualises the story. We also provide specifics around who said who, but these matters have been in the public domain since March this year. Everything that Mr Jonas said has been in the public domain since March and to the extent that that information was given to us, we provided it in the letter to the President on the 22nd. So there is not going to be anything new than what was in the public domain. Everything that Miss Mentor said is in the public domain."
Zuma's response? *crickets*
The more Madonsela tries to rationally and legally explain what issues she would like to cover and how she wants to do it, the more objections Hulley raises. After an adjournment for tea, the parties returned and Madonsela changed tack, addressing Zuma directly (page 37) and appealing to his constitutional consciousness:
"I am concerned though that President, you are the President of the Republic of South Africa and you are employee number one. Normally when we are dealing with people who are responsible for the State, we deal with them and the Lawyers they come in where necessary, because it is you who is accountable, Sir. It is you who are employed by the State as its most important employee and then you employ the rest."
She then attempts to cut to the chase, saying Hulley is being untruthful when he argues that Zuma did not have time to respond (also on page 37):
"It is not true what your Lawyer is telling you now, was telling this investigation, that you did not have an opportunity to respond. We sent you the request for an investigation in March and we asked you if you have any comments in response to the accusations? What we have since gotten are the details of the accusations, but there is nothing that is an ambush."
Hulley requests a break, and when they return, Madonsela says the time has come for Zuma to speak for himself "because, sir, it is your name that has been used in this investigation and it is you who will be held accountable for this process" (page 40). Zuma, apologising because he has the flu, says:
"Now I think as you made the point that the matter is about me and my advisers are employed to advise me, I'm definitely willing to answer the questions, because I have now come to know that I am implicated. Public Protector referred to the letter of March, that I was aware of it and besides the letter, I'm sure you will appreciate that the issue of the capture has been on for a long time in the air. It is not a new issue at all."
Zuma then continues to explain why he cannot answer Madonsela's questions, before she takes the opportunity and sets out all the questions to which she would like answers to. Hulley, however, senses danger and repeatedly tries to intervene between Madonsela and Zuma, attempting to prevent his client from saying something incriminating. A heated exchange follows between Madonsela and Hulley during which she forcefully tries to beat back his intervention. She again turns to Zuma, who -- judging from the transcripts -- sits back and watches the two sparring (from page 46):
Adv T Madonsela: All I'm asking is for honest answers. Those answers can't change with legal advice, they can't. The President will tell me the honest fact of why he removed Mr Nene and why he appointed Mr Van Rooyen? Sir, why do you need a Lawyer to advise you, because the Lawyers advised you then before you did that? 7
Mr M Hulley: With respect, with respect, with respect ...
Adv T Madonsela: Now why do you need a Lawyer to be able to tell me why you removed any of those Ministers?
The argument continues until Hulley says that Madonsela needs to accept that Zuma will not be answering any questions and that proceedings must be postponed to a later date (this meeting was held days before Busisiwe Mkhwebane was to succeed Madonsela). The then public protector was not deterred, and pressed on, adding she "cannot be bullied by you".
"I can phrase it any way..."
Then came the curious bit, and an exchange that provides some insight into Zuma's approach to honesty and accountability. Madonsela explains to him she merely wants answers to factual questions, not questions of interpretation or conjecture. Black-and-white, clear-cut issues. Zuma, however, says answers he gives need to be considered, it simply isn't the same as when chatting casually to anybody else (from page 52).
President Zuma: I have been asked this question many times, not by a Public Protector, by people who were wanting to know, since the matter was out there. I have given honest answers how has this happened, but in this case, because it is now Public Protector – it is not like a journalist or a colleague or a friend -- if I give an answer, when you finally make up your mind, you will have to take into consideration what I say, unlike a report[er] who just reports, "This is what Zuma has said". So I need to give it a bit of a thought, I think.
Adv T Madonsela: Okay, perhaps I should ask one question, Sir. Would the answers that you give me, after I have given you an opportunity to reflect, differ from the answers that you have given to the media or any other person who has ever asked you about the issues of Jonas, Mentor, Maseko and Guptas?
President Zuma: No, they would not differ.
Adv T Madonsela: Would you offer a different answer?
President Zuma: No, I would not offer a different one. I wouldn't offer a different one.
Adv T Madonsela: So why do you want to defer it then if you are going to give me the exact answer you have given to the media?
President Zuma: No, as I say, giving an answer to a journalist or to somebody is different than giving an answer to a Public Protector.
Adv T Madonsela: That is why I was asking Sir, if it would differ from the one you have given to the media? If it won't differ, what then would change from today to the time we have that interview, if you are going to give me exactly the same answer you have given to the media or any other person has ever asked you about these matters?
President Zuma: Well, I don't know how to answer it again, because I say ...
Adv T Madonsela: I'm trying to understand you, Sir.
President Zuma: No, no ...
Adv T Madonsela: If you are saying you have answered these questions before and I'm going to ask you the same questions, I'm struggling to understand it and you are saying the answer won't be different from the one you have given to the media, I'm struggling to understand then what do you need to rethink?
President Zuma: No, if I give an answer to a friend or to a journalist I can phrase it any way, saying exactly the same thing, but the words I use there, if it is the Public Protector might say, 'But what did you mean by this word?' as you phrase your question. The Public Protector has got to consider this at the end and take a decision. The people I have answered to, they do not have to take a decision about what I was answering them about, so I had to say anything without serious thought, even if the answer was the same.
The meeting -- bar another altercation between Madonsela and Hulley during which she "forbids" him from speaking and that he is not employed as Zuma's "mouth" -- peters out with an agreement that they would meet the following week to give Zuma time to prepare his answers. That meeting never happened and Madonsela finalised her report without Zuma's input.
It was released on 2 November 2016 after Zuma and two of his ministers, Des van Rooyen and Mosebenzi Zwane, initially tried to interdict its release.
On Tuesday Semenya articulated Zuma's arguments against instituting any inquiry. Paragraph 5.28 of Madonsela's report reads: "I met with the president on 6 October 2016 to solicit his response to the above allegations. He did not respond to any of my questions."
It seems Judge Mlambo's inferences are correct.