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  • State Capture - DA Founding Affidavit

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    SundayTimesZA
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    The Democratic Alliance said it is going to court to prevent the release of the public protector’s state capture reported being interdicted as it is a “matter of significant public importance”.

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    The Democratic Alliance said it is going to court to prevent the release of the public protector’s state capture reported being interdicted as it is a “matter of significant public importance”.

    Droits d'auteur :

    © All Rights Reserved
    Téléchargez comme PDF ou lisez en ligne sur Scribd
    Signaler comme contenu inapproprié
    9K vues29 pages

    State Capture - DA Founding Affidavit

    Transféré par

    SundayTimesZA
    The Democratic Alliance said it is going to court to prevent the release of the public protector’s state capture reported being interdicted as it is a “matter of significant public importance”.

    Droits d'auteur :

    © All Rights Reserved
    Téléchargez comme PDF ou lisez en ligne sur Scribd
    Signaler comme contenu inapproprié
    sur 29
    INTHE HIGH COURT OF SOUTH AFRICA (GAUTENG DIMMSION, PRETORIA) Inthe application for intervention of: DEMOCRATIC ALLIANCE Inthe matter between: PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA and ‘THE OFFICE OF THE PUBLIC PROTECTOR ‘THE PUBLIC PROTECTOR ‘And in the matter between: DAVID DOUGLAS (DES) VAN ROOYEN and THE PUBLIC PROTECTOR FOUNDING AFFIDAVIT |, the undersigned, CASE No: CASE NO: 90707116 Intervening Party ‘Applicant Fist Respondent Second Respondent (CASE No: 80707116 Applicant Respondent 2 JAMES SELFE state undor oath that iTrooucTion | am the chaiperson of the Federal Executve of the Applicant (the DA), and | represent the Applicant as a member of the National Assembiy ofthe Parliament of the Repubic of South Arica. My offices are at Room 247, Marks Bulding, Partiement ‘Cape Town. | zm duy euthorised to bring this applcation on behalf ofthe Applicant The facts set out inthis affdavit fll wihin my own knowledge, unless the context indicetes chervse, and are tue and correct. Where I rly on information conveyed tome by others Ibeleve ito be tue. Where Imake legal submissions, !do so based fon the legal advice received by the DA from its legal representathes, which adie | believe to be carect, ‘Thisis an application to intervene in wo simlar matters before this court concering @ finalised report by the Publ Protector about the capture of our state institutions by private interess (the Final Report (On 18 March 2016 the DA lodged a complaint with the Public Protector. The complaint requested her ic investigate allegations thatthe President had breached the Executive Members Code by allowing members of the Gupta family o offer cabinet positions to [Mr Mcebii Jonas ané Ms Vytie Mentor. | attach a copy ofthe complaint marked JSt. ‘The Public Protector has stated under oath that she hae ial 1 her Investigation into the DA's complaint and signed her report. She intended to release the Final Report (00 14 October 2016 (On 13 October 2016, in wo independent applications, the President and the Minister ‘of Co-operative Sovernance and Traitonal Mars (Minister Van Rooyen) sought to prevent the Pubic Protector from releasing the ral Report into the DA's complaint, By agroemant between the parties, the position has been preserved and both matters bh « Wil be heard on 1 November 2016, 10. " ‘Tne DA seeks to intervene in both applications. As the complainant, it plalny has & érectand substantial interest in whether and when the Final Report is released ‘The DA seeks to ensure that the President (and Minister Van Rooyen) aro not permited to abuse the judicial process to shield himself fom possible adverse tndings by the Public Protector, All Souh AMicans have a clear interest in the Public Protector’ findings. If she concludes that President Zuma assigned cabinet positions on the instructions of, or ony with he consent of, members ofthe Gupta family ne has not only breached the Executive Members Code, but his oath to uphold the CConsttuton, Thais information that all South Aicans have an intrest in krowig The DA therefore aiso supports the counter-applcation by other politcal patios to compel the Public Protector to release the report ‘The remainder of his afdavt ie stuctred a follows: 9.1. Part I brify describes the background to this eppkcaton: 9.2, Parti usiies the DA's application for intervention; anc 93, Part! sets out the bases on which the DA opposes the unlawful elit sought by he President and Minister Van Rooyen, ‘This afdavt has been prepared with extreme urgency. The DA therefore reserves the ght to supplement prior tothe hearing ofthe matter should it become necessary to advance addtional evidence FACTUAL BACKGROUND This Part addresces the folowing issues: 1.4. description ofthe DA: 11.2. A-summary ofits complaint othe Publle Protector, and 11.3. An outline ofthe two applications to prevent the release ofthe Final Report. ge 13, 14 liance ‘The DA is a duly registered political party with its main offices at 2nd Floor, Theba Hosken House, comer of Breda and Mil Streets, Gardens, Care Town. In terms ofits federal consituion, the DA is estabished as a body comoraie with perpetual succession, capable of suing and being sued inits own name, do ot attach a copy of tte DA's Consittion, but is avaliable onine at: p/waw.da.ora.zalup- sonfenYsnloads/2013/ 210A Federal Constuion-approved-by-Congress-$-May- 2015 The DA enjoys representation at national, provincial and local government levels including representation in every provincial legislature, It curently holds 89 seats in the National Assembly where tis he offi opposiion. lis the governing partyin the Western Cape. tis the governing party (ether alone or in coalition) in 37 ‘municipalities ncuding foro he eight metropolitan municipalities. In binging this application, the DA acs in its own intrest as a complainant to the Public Protector. Butitalso acts in the inorests ofits members, nthe interest of those Sout Aticans who have a right to know the content ofthe Fial Report, and inthe publ interest. ‘The Complaint 15. ‘The DA's complaint was lodged following the revelation of serious allegations of corrupt and uniantul behavour that strikes to the heart of our democracy: 18.1. On 16 March 2016 Mesbisi Jonas, the Deputy Minster of Finance, issued @ press statement confiming allegation in the pre35 that he had been offered the positon of Mister of Finance to replace Minister Nelanhla Nene who was fred by President Zuma in December 2018, Deputy Mrister Jonas stated “Members of the Gupta family offered me the postion of Minister of Finance to replace then Minister Nene. Irejecteathis out of hand. The basis of my rejection oftheir ofr i that makes 9 mockery ofour hard Ge ‘eared democracy, the trust of our people and no one apart fom the President of the Republic appoints ministers" | atach a copy of Deputy Minister Jonas statement marked JS2. Although Mi -Joras does not expressly stale that President Zuma was aware ofthe ofer by the Gupta family, the conclusion is ineviable. There Is no reason why the family would make the offer without either President Zuma’s knowledge and consent, or ~even more disturbing -with the belie that President Zuma would ‘Accept their choice for Finance Minster without prior knowiedge of the cfr: 15.2. MsVyle Mentor—then a Member of Parlament~ also stated publi that she hadbeen offered a ministerial postion. On 7? shewas invited to Pretoria under ‘the impression that she would meet the President al the Union Buildings. insted, she was picked up by Rajesh Gupta and taken tothe Gupta's mansion in Saxonwold. There, members of the Gupta famiy offered her the positon of Minster of Publle Enterprises, provided she agreed to cancel South Afcan ‘Airways fight route to India and grant it to @ Gupta-owned company. She refused. As she was leaving the Gupta mansion, President Zuma arived. She informed him thatthe Gupta family had offered her thejob and she had refused. He fold her that was ‘okay’ | attach a media report surmarising and quoting Ms Mentors statements marked 183. “These allegations are shocking. Itrue, they show that President Zuma i performing one of his nost important constitutional dues - appointing members of cabinet ~ at the behest of oF subject othe approval of, private omy of wealthy individuals. ‘There is noreason not io belleve them tobe tue, Inthe ime since they were made, hile the Gupta famiy andthe President have denied them, they have provided no evidence tc demonstrate their falsity. Mr Jonas remains the Deputy Minister of Finance. Althe very least, there must be a strong assumption that he Presidant has ‘delegated hs powers o appoint cainet members to the Gupta family, or his wing to 18. 10. ‘exercise those powers in order to advance the Gupta family’s private interests. That is why these incidents have been termed “sate capture, ‘What is even more concerning Is thatthe enly people whe have publily stated hat they were offered minister positions are those who efused them, Whatof the pple who dc not have the courage and independence of Mr Jonas and Ms Mentor? Those who accepted the offers by the Gupta family and are curently occupying minsterial positors and exercising ther powers to advance the interests of the Gupla family over the interests of South Africa and her people? ‘The complaint lad by the DA is not merely another scandal, or an attempt to soore poles points It's an attempt to save our democracy and our Constiuton, For as Jong as the Final Report remains unreleased, the statements of Mr Jonas and Ms Mentor remain allegations, and the President wil remain in office and able to act he behest and in the Interests of the Gupta family. I they are confirmed by the Final Roper, they wil be binding and wil force the rs ident to be removed by Partanent Whatever the outcome, itis urgent thal the Public Protector's Report i released, ether toclear:he President's name, orto confirm the allegations that he has sold our county to private intorests ‘The Chango inthe Occupant ofthe Offic ofthe Public Protector 2, 24, Until 15 ctober 2016 the Publis Protector was Adv Thul Madonsela. Her term ended on that date and the new Public Protector is Ms Busisve Mkhwebane. This change inthe ooxupant ofthe ofc is important for several reasons. Bist, the reason Adv Madonsela wished to release the Final Report on 14 October 2016 wes because it was the last day of her term. Its perlecty reasonable and ‘appropiate for an incumbent to attempt to finalise important mater before her tm fends. It would impose an unnecessary burden on the new Public Protector ~ and ‘create unnecessary and undesirable delays ~ If she simply let those matters to be 2, 2 2, finalsed by he successor who would have to acquaint herself with al the etal of the investigation. The decision by Adv Madonsela to release the Report on 14 October 2016 was pot ofthe exercise of her adminisalve responsibilies to manage her Office effectively and effent ‘Second, when Ms Mkhwebane was being considered for appoiniment inthe National ‘Ascombly, the DA raised serious concems about her fness forthe offce. It revealed it had received credible reports thet when she was supposedly working 3s an immigration cficerin Cina, she was in fact on he payrolof the State Security Agency ‘The DA also argued thet she was not the best of the candidates shortisted for the positon. | atlach @ statement setting out those concems marked JS4. The DA ‘posed her appointment as Public Protector when the mater was voted on inthe National Assembly, but Ms Mkhwebane atsined the necessary majriy of voles ‘The DA stil ras serous concems about Ms Mkhwebane's fitness for offce and her independence. thas areal fear that she wil delay or attempt to alter the Final Report, into the OA's complaint This is based on statements she has made that she doesnot regard the investigation ino slate caplue to be & prioiy, | attach @ media report recording those comments marked JSS. While the DA hopes it those conoerms wil be prove tobe misplaced, its fers a ‘ational and legitimate “Thi the attempt to delay the release of the Final Report must be assessed in ight of these concerrs. fit granted, i wit have the effec tha the Final Report could be altered by a person whom the complainant ~ the DA ~ has concems may not be independent crimpatl. Yet the DA wil not be abo to know whether or not the Fina Reportisaltored. This creates the risk of further undesirable tigation after the Report ‘is releatod that may undermine the stering reputation of the Ofie of the Public Protector that Adv Madonsela has buit B x 2 2%, 2. 28, 29, 31 10 Provont th ort ‘The President launched his applcaton to prevent the release of the Report on ‘Thursday 19 Ociober 2016, He sett down for hearing on Tuesday 18 November 2016. ‘Te application seeks interim ee o prevent the Public Protector from releasing the Final Report ‘prior to aflording fhe President] @ reasonable opportunity to provide ‘meaningful input int the investigation” 1t alleges that ~ despite knowing about the Public Protector’ investigation since March when he was inviled to assist her ~ the Prosidont cid not have adequate ime to respond to her inquies. Minister Van Rooyen launched his application on 13 October 2016, but set it down for hearing the next day ~ Friday 14 October 2016 ~ the day thal the Pubic Protector intended o release the Final Report. He to complained that he was given Insucient ‘opportunity o adress the Public Protecto'sconcems. ‘The Public Protector arswered his application rion the moming of 14 October 2016 pointing out that she had made no negative findings against him and inviting him to ‘withdraw is application. He refused todo so andthe matter was heard in urgent court later that morning, In the meantime, the Ecoromic Freedom Fighters (EFF). the Congres ofthe People (COPE) and the Urited Democratic Movement (UDM) brought a join! appication to Interven inthe application, and @ counter epplicaon to compel the release of the Final Report. ‘At the heating, the Pubse Protector, Minister Van Racyen, the President andthe EFF, COPE and the UDM were represented. Although the DA had not yet formally intervened, itwas also represented st the hearing, The paties agreed to an order that the Final Repot would be ‘preserved and in safekeeping’ pending the final

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