East Cape-born trio among legal team that successfully argued for report’s release

CELEBRATION TIME: UDM and COPE lawyer Dali Mpofu, left, speaks to EFF lawyer Tembeka Ngcukaitobi during the hearing yesterday Picture: AFP
CELEBRATION TIME: UDM and COPE lawyer Dali Mpofu, left, speaks to EFF lawyer Tembeka Ngcukaitobi during the hearing yesterday
Picture: AFP

Three generations of Eastern Cape-born advocates were among the team of top legal minds who successfully convinced a bench of judges to order the release of the public protector’s highly anticipated state capture report.

Advocates Dumisa Ntsebeza, Tembeka Ngcukaitobi and Dali Mpofu, who played instrumental roles in one of the country’s biggest cases, have been lauded by a political analyst for “a beautiful South African story”.

Representing the EFF, COPE and the UDM, they – along with the team representing the DA – argued for the release of the explosive report, which contains damning details of how Minister Des van Rooyen and Eskom chief executive Brian Molefe frequented the Saxonwold home of the Gupta family.

The report, by former public protector Thuli Madonsela, ordered that President Jacob Zuma appoint a judicial commission of inquiry into state capture and that a judge chosen by Chief Justice Mogoeng Mogoeng head the commission.

Political analyst Professor Mcebisi Ndletyana said the court’s ruling reaffirmed the independence of the judiciary.

“It’s something that’s always been known, but we became anxious about it because of the occurrence of abuse of power.

“There was always that fear that the corrupt elite would get to them, that they would want to cripple the last defence,” Ndletyana said.

Ntsebeza, Ngcukaitobi and Mpofu were social media sensations, hailed as giants making South Africa proud, and Ndletyana said they debunked the stereotype that the country did not have enough black silks. “It was a beautiful picture, three generations of black lawyers,” he said.

“It is a demonstration of what people are able to do when given the opportunity.

“They shine brighter because their [argument] was bigger, not just morally but legally as well.”

In a day of high drama day yesterday, Zuma changed his travel plans to neighbouring Zimbabwe to fly back to his head office in Pretoria to deal with the state capture report.

Zuma was scheduled to fly from Cape Town to Harare for a bilateral meeting with President Robert Mugabe, but this was postponed to later today as he urgently needed to familiarise himself with the contents of Madonsela’s damning report.

New public protector Advocate Busisiwe Mkhwebane was ordered by a full bench of the Pretoria High Court to release the report, which the president had sought to interdict, by no later than 5pm.

Zuma’s lawyers pulled a major surprise in the morning when they told the high court he had instructed them to withdraw the interdict application.

This was after opposition parties such as the DA, the EFF, COPE and UDM had successfully applied to be intervening parties in the matter.

The release of the report came as pressure was mounting on Zuma to resign as president after civil society groups, joined by senior ANC members such as Max Sisulu and Solly Mapaila, gathered a few metres away from the high court at the “Save our South Africa Assembly”, where speaker after speaker said it was time for Zuma to go.

Zuma’s spokesman, Bongani Nqulunga, said: “The president will give consideration to the contents of the report to ascertain whether it should be a subject of a court challenge.”

The state capture report will now be used by Zuma’s opponents, within and outside the ANC, to strengthen their plans to have him removed from office.

Madonsela observes in the report that Zuma may have violated the Executive Ethics Code, infringed the provisions of the Prevention of Corrupt Activities Act, and failed to comply with Section 195 of the constitution, and there may be a possible conflict of interest due to the relationship between his son and his friends, the Gupta family.

The ANC noted the report and indicated that it would study it, but the party faces an arduous road ahead.

It is already on the back foot electorally and a further lengthy legal process by Zuma and ministers implicated in the report will keep the issue of state capture prominent in the public debate as the 2019 national election approaches.

Correspondence attached to the report shows Madonsela’s frustration in her interaction with Zuma as she sought to get him to respond to the allegations during a four-hour meeting last month.

His responses – and that of his legal advisers in the meeting – are further evidence of the attempt to delay the finalisation of the report.

The report provides a glimpse into the way state-owned entities favoured the Gupta family – Eskom in particular.

Madonsela observed that the Eskom board appeared to have been improperly appointed and Eskom’s conduct in certain instances was solely to the benefit of the Gupta-owned Tegeta.

Tegeta’s conduct with regard to a prepayment from Eskom could amount to fraud.

Madonsela also found that it was worrying that the Gupta family was aware or may have been aware of former finance minister Nhlanhla Nene’s removal six weeks before it happened.

She also found it equally worrying that Minister Des van Rooyen, who replaced Nene, could be located in Saxonwold where the Guptas reside seven times – including on the day he was announced as the new finance minister.

She said this was anomalous for someone who was based full-time in Cape Town.

On Zuma, the cabinet, the Guptas and the banks, she found that Zuma’s cabinet had taken the extraordinary and unprecedented step of intervening in what appeared to be a dispute between a private company co-owned by the president’s friends and his son.

Madonsela recommended that this be probed by her proposed judicial commission of inquiry as it was a possible conflict of interest between the president as a head of state and his private interests as a friend and father in terms of Section 2 of the Executive Ethics Code.

She also found that Zuma had turned a blind eye, in breach of the code, on allegations of corruption by the Guptas. – Additional reporting by Siphe Macanda

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