President Jacob Zuma’s relationship with the Gupta family may have led to multiple violations of the Executive Ethics Act, a section of the Constitution that requires public administrators uphold high standards of professional ethics, and an anticorruption statute.
While former public protector Thuli Madonsela’s report on state capture released on Wednesday did not make firm findings against Zuma, it raised severe questions about his conduct and the manner in which his Cabinet ministers and his administration presided over state-owned entities and favoured the Gupta family.
The report investigated whether Zuma violated the Executive Ethics Act through the alleged involvement of the Gupta family and their associates in the removal and appointment of members of Cabinet and the boards of state entities.
The report, which speaks of "worrying coincidences" and "anomalous" movements of individuals to and from the Gupta family compound in Saxonwold, Johannesburg, ahead of Cabinet reshuffles, concludes that should the Gupta family have had knowledge of these reshuffles, it would have violated sections of the act.
The Gupta family’s foreknowledge of the intended appointment of Des van Rooyen as finance minister in December 2015 would have violated Zuma’s obligation as a public official — the Executive Ethics Act precludes him from using information received in confidence or in connection with the discharge of his duties, the report reads. The executive failed to investigate this breach following public allegations made by Deputy Finance Minister Mcebisi Jonas and former MP Vytjie Mentor that they were offered Cabinet posts by the Gupta family.
"Only the ANC and Parliament seemed to have considered this worthy of examination or scrutiny," the report reads.
"Failure to verify such allegation may infringe the provisions of Section 34 of Prevention and Combating of Corrupt Activities Act, 12 of 2004, which places a duty on persons in positions of authority who know or ought reasonably to have known or suspected that any other person has committed an offence under the act must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to any police official."
The report reads a decision by the Cabinet to investigate a move by banks and other financial institutions to cut ties with the Gupta family shows "Cabinet appears to have taken an extraordinary and unprecedented step regarding intervention into what appears to be a dispute between a private company co-owned by the president’s friends and his son."
This risked giving preferential treatment to companies on a matter that should be handled by independent regulatory bodies.
This decision may be a conflict of interest under the Executive Ethics Code, as well as section 195 of the Constitution, the report reads.
A transcript of a fiery hearing between Madonsela, Zuma and his special legal adviser Michael Hulley recorded a volley of legal arguments over issues of evidence and the ability of Zuma to apply his mind to questions.
Zuma and his legal advisers repeatedly argued for a postponement of the release of the report. Madonsela appeared to be frustrated by the discussion of procedure that saw the meeting exceeding four hours.
Madonsela said at the meeting even for accused murderers "all they need to be told is what they are accused of and then they are interviewed. All I’m asking for is 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 that is a decision you took, yourself, without legal advice."
Madonsela appeared to repeatedly steer the answers away from lawyers and to Zuma, affirming Zuma would be treated as other witnesses.
Zuma responded he had answered such questions repeatedly: "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."
Madonsela repeatedly asked him whether he would answer questions from the media or other parties differently to his responses to her questions.
Zuma said he would not, but because Madonsela was making findings, he would have to think it through.
"I have given honest answers how 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 reporter who just reports, ‘This is what Zuma has said’.
"So I need to give it a bit of thought I think," he said.
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