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Supreme Court of Appeal to hear Zuma appeal against state capture ruling

Staff Reporter

Former President Jacob Zuma’s appeal against a High Court ruling which found the Public Protector’s Report on state capture appropriate and binding, will be heard in the Supreme Court of Appeal (SCA) this Friday.

The hearing will be heard via video conference.

According to court papers, Zuma wants the SCA to determine if the North Gauteng High Court was right when it slapped him with a costs order when he initially took the state capture report on review and lost.

He also wants the Bloemfontein-based court to decide whether it was reckless for him in his capacity as the then Head of State, faced with remedial action whose constitutionality was doubted, to approach a court of law for the review of remedial action contained in the State Capture Report.

Further, Zuma also wants it to be determined whether the high court was correct in refusing him leave to appeal and if the appeal bears prospects of success.

The matter dates back to November 2016 when former Public Protector Thule Madonsela released the State of Capture Report.

The report came from an investigation her office conducted following complaints of alleged improper and unethical conduct by Zuma as the President, certain state functionaries and the Gupta family, relating to the appointment of cabinet ministers and directors of State-owned entities.

This, it was feared, possibly resulted in the improper and corrupt awarding of state contracts and other benefits to businesses of the Gupta family.

The remedial action from the report directed the President to appoint a commission of inquiry to investigate the identified matters.

However, Zuma sought to review and set aside certain paragraphs of the remedial action, which read:

“8.4 The President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice (who) shall provide one name to the President.

“8.7 The commission of inquiry to be given powers of evidence collection no less than that of the Public Protector.

“8.8 The commission of inquiry to complete its task and to present the report and findings and recommendations to the President within 180 days. The President shall submit a copy with an indication of his/her intentions regarding the implementation to Parliament within 14 days of releasing the report.”

The current Public Protector Advocate Busisiwe Mkhwebane is a respondent in the matter as well as a host of political parties including: Economic Freedom Fighters, the United Democratic Movement, Congress of the People and the Democratic Alliance.

Former MP Vytjie Mentor and public benefit organisation, Council for the Advancement of the South African Constitution are also respondents in the matter.

Some of Zuma’s grounds for review were that it is beyond the powers of the Public Protector to give directions as to the manner in which the commission of inquiry was to be implemented.

He argued in the high court that it is the President’s prerogative to select the officer to preside over the commission and it is also the President alone who can decide upon the issues that the commission is to investigate, its powers and when the commission is to complete its investigation.

But the high court found no substance in the arguments and dismissed Zuma’s application with costs.

“…none of the grounds of review has any merit, and the President is not entitled to the relief that he seeks,” the high court in Pretoria ruled.

“The remedial action taken by the Public Protector is lawful, appropriate, reasonable and rational. In the premises the President’s application cannot succeed and must be dismissed with costs,” it ruled.

The state capture investigation dates back to March 2016 when Madonsela received three complaints in connection with alleged improper and unethical conduct in relation to the appointment of cabinet ministers and directors of SOEs and the award of state contracts and other benefits to the Gupta-linked companies.

The complaints followed media reports alleging that the then Deputy Minister of Finance Mcebisi Jonas, was offered the post of Minister of Finance by the Gupta family in exchange for a R600 million bribe.

The offer allegedly took place at the Gupta residence in Saxonwold, Johannesburg, in the presence of Duduzane Zuma, the former President’s son.

According to the Report, the offer was allegedly made before the then Finance Minister Nhlanhla Nene, was abruptly removed by the President on December 9, 2015.

It also says Mentor was offered the post of Minister of Public Enterprises, in exchange for cancelling the South African Airways route to India and that Zuma was at the Gupta residence when the offer was made.

The first complainant, Father S. Mayebe, on behalf of the Dominican Order, a group of Catholic priests, requested an investigation into the veracity of allegations that Jonas and Mentor were offered cabinet positions by the Gupta family as well as an investigation into all business dealings of the Gupta family with government departments and SOEs to determine whether there were irregularities, undue enrichment, corruption and undue influence in the awarding of contracts, mining licences, government advertising in The New Age newspaper, and other governmental services.

The second complainant, Mmusi Maimane, then leader of the DA, requested an investigation into Zuma’s role in the alleged offer of cabinet positions to Jonas and Mentor.

He also wanted the investigation to look into Zuma’s conduct in relation to the alleged corrupt offers and Gupta family involvement in the employment of cabinet ministers and directors of SOE boards.

Maimane believed Zuma may have acted improperly and in violation of the Executive Ethics Code.

The third complaint by a person, whose name has been withheld, was based on media reports alleging that the cabinet had become involved in holding banks accountable for withdrawing banking facilities for Gupta-owned companies.

The complainant wanted to know whether it was appropriate for Cabinet to assist private business and on which grounds that was happening.

He asked, if corruption was not involved, and specifically if such matters should not be dealt with by the National Consumer Commissioning Ombudsman.

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