Zuma faces tricky com­mis­sion de­ci­sion

Weekend Argus (Saturday Edition) - - FRONT PAGE - SIYABONGA MKHWANAZI, SHAUN SMIL­LIE and ANA

THE Gup­tas might hold the reins on his ad­min­is­tra­tion, but it’s Pres­i­dent Ja­cob Zuma who has the fi­nal say in ap­point­ing the com­mis­sion that could lead to his down­fall.

A trail of leaked emails made pub­lic this week has been ce­ment­ing per­cep­tions of the Gupta fam­ily’s hold over the state, lead­ing to wide­spread calls for a com­mis­sion of in­quiry to in­ves­ti­gate.

In­ves­tiga­tive re­porters from sev­eral me­dia out­lets are wad­ing through an es­ti­mated 100 000 to 200 000 mis­sives made avail­able on an in­ter­net plat­form.

Even the ANC has ex­pressed con­cern at the leak of emailed cor­re­spon­dence pur­port­ing to be be­tween the Gupta fam­ily, their as­so­ciates, govern­ment min­is­ters and Pub­lic En­ter­prises Board mem­bers. It called on the govern­ment to ver­ify the claims, and for in­di­vid­u­als whose names ap­pear in the emails to ex­plain.

ANC spokesman Zizi Kodwa said the party was se­ri­ously con­cerned about the al­le­ga­tions.

“It is caus­ing great dam­age,” he said.

The emails have linked Zuma, through his son Duduzane and sev- eral cab­i­net min­is­ters, in­clud­ing Fi­nance Min­is­ter Malusi Gi­gaba, with the Gup­tas in gov­er­nance and state in­sti­tu­tions. Some of the emails re­lated to sit­u­a­tions where ten­ders worth bil­lions of rand were in­volved.

“Such matters can­not be al­lowed to fes­ter in the pub­lic do­main. Ac­cord­ingly, the ANC calls on govern­ment to ur­gently seek to es­tab­lish the ve­rac­ity of these claims and ex­pla­na­tion from those im­pli­cated,” Kodwa said.

He added, in line with the de­ci­sion of the ANC na­tional ex­ec­u­tive com­mit­tee, the party wanted a com­mis­sion of in­quiry set up with­out de­lay.

Zuma is con­sti­tu­tion­ally em­pow­ered to es­tab­lish such a com­mis­sion.

But some an­a­lysts ar­gue the pres­i­dent is so deeply im­pli­cated that the cred­i­bil­ity of such a body would be se­verely com­pro­mised if he was in­volved in set­ting it up.

Con­sti­tu­tional law ex­pert Pierre de Vos, of the Univer­sity of Cape Town, said the con­sti­tu­tion al­lowed for the deputy pres­i­dent to step in if the pres­i­dent was un­able to ful­fil his du­ties of of­fice.

De Vos is one of a num­ber of le­gal and po­lit­i­cal an­a­lysts to warn of a looming con­sti­tu­tional cri­sis over the mount­ing claims of state cap­ture fol­low­ing the pub­li­ca­tion of the emails.

One of the rec­om­men­da­tions by for­mer pub­lic pro­tec­tor Thuli Madon­sela was that Zuma should ask Chief Jus­tice Mo­go­eng Mo­go­eng to ap­point a judge to lead an in­quiry into al­le­ga­tions of state cap­ture.

Pro­fes­sor So­madoda Fikeni, of Unisa, said a com­mis­sion could be set up by Zuma and its terms of ref­er­ence drafted by the chief jus­tice, the Ju­di­cial Ser­vice Com­mis­sion or an­other body.

Mean­while, Gi­gaba is in the eye of the email storm.

One email ad­dressed to Gi­gaba when he was still min­is­ter of home af­fairs was an early nat­u­ral­i­sa­tion re­quest for the Gup­tas’ mother, An­goori Gupta.

“Your favourable con­sid­er­a­tion of our re­quest for early nat­u­ral­i­sa­tion into South Africa will be highly ap­pre­ci­ated – we have made this coun­try our home al­ready,” it read.

The Daily Mav­er­ick cited a chain of emails in which it is claimed Gi­gaba or­dered of­fi­cials to be placed in Mum­bai and New Delhi to fast-track visas for the Gup­tas as they shifted as­sets and em­ploy­ees be­tween In­dia and South Africa.

The SACP called on the min­is­ter to re­sign, say­ing he had lost the ben­e­fit of the doubt it was pre­pared to give him when he re­placed Pravin Gord­han.

“Quite clearly, the ma­jor­ity of those who are af­fected, they should not hold pub­lic of­fice on our be­half. And I think it is as easy as that. That in­cludes the cur­rent min­is­ter of fi­nance, Malusi Gi­gaba,” the SACP’s sec­ond deputy sec­re­tary gen­eral, Solly Ma­paila, said.

“Oth­er­wise, there’s no way that our peo­ple can trust govern­ment with such peo­ple at the helm.”

Yes­ter­day, Gi­gaba in­sisted he had done noth­ing wrong.

“No­body has given me these emails. No­body has told me how these emails were ob­tained – whether it was through proper means or whether they have not been fab­ri­cated.

“I don’t know,” Gi­gaba said dur­ing a me­dia brief­ing.

Other leaks sug­gest Salim Essa, known for try­ing to buy a bank after the Gup­tas’s ac­counts were closed and for head­ing Denel’s red-flagged joint ven­ture part­ner VR Laser Asia, was al­lowed to vet Ben Ngubane’s first pub­lic state­ment as Eskom chair­man. Molefe ar­rived at Eskom weeks after Ngubane and won credit for end­ing

load-shed­ding. But last year his rep­u­ta­tion dimmed after the pub­lic pro­tec­tor’s re­port on state cap­ture homed in on Eskom’s coal con­tract with the Gupta fam­ily’s Tegeta Ex­plo­ration.

Gord­han re­cently sug­gested the Eskom board should step down and also raised ques­tions about deal­ings be­tween the Gup­tas and Transnet, which has been at the cen­tre of the week’s leaks, dur­ing Molefe’s ear­lier ten­ure at the freight com­pany.

From the leaked emails, the amaBhun­gane in­ves­tiga­tive re­port­ing team gleaned de­tails of how the fam­ily ap­par­ently came to pocket al­most R10 mil­lion for ev­ery R50m Transnet paid for a Chi­nese-built rail lo­co­mo­tive.

This re­port­edly flowed from a con­tract given to Te­questa, a com­pany set up by Essa and man­dated to help China South Rail win a con­tract to sup­ply 359 lo­co­mo­tives to Transnet.

As with VR Laser Asia, Essa was the sole share­holder in the com­pany.

Essa suc­ceeded and se­cured an ad­vi­sory fee of 21%, or R3.8 bil­lion, of the R18.1bn deal.

The emails back up re­ports that in­ter­na­tional PR com­pany Bell Pot­tinger was paid to cast crit­i­cism and sus­pi­cion of the Gup­tas and their ties to Zuma and the state as a plot by “white mo­nop­oly cap­i­tal”.

The term has be­come com­mon po­lit­i­cal rhetoric, usu­ally used by mem­bers of the ma­jor- ity party.

On Thurs­day, the pres­i­dent told Par­lia­ment state cap­ture was sim­ply a ru­mour.

It re­mains for foren­sic in­ves­ti­ga­tors to dis­cover if the emails re­leased are gen­uine or have been al­tered.

Cy­ber in­ves­ti­ga­tor Jac­ques van Heer­den said a sub­poena could pro­duce the orig­i­nal emails or re­veal ev­i­dence had been tam­pered with.

“You would sub­poena the com­pany’s server and they by law have to keep records for five years,” said van Heer­den.

The logs stored on the server will re­veal when the emails were sent.

“Even if the logs were deleted, there would be ev­i­dence of this,” he said.

Ra­jesh Gupta

Atul Gupta

Pravin Gord­han

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