President Jacob Zuma’s request regarding Public Protector Thuli Madonsela’s investigation into state capture is illegal and jeopardises the probe, according to experts.
Earlier this week, it emerged Madonsela was asked by Zuma to provide the names and testimonies of the witnesses she had questioned as part of her investigation.
But Madonsela’s office indicated that it would instead advise the president to submit questions so it could relay them to witnesses on his behalf.
After missing a scheduled meeting between the two this week, Zuma accused Madonsela of flaunting the founding Act of her office by refusing him access to witnesses and their testimonies regarding allegations that he had allowed the Gupta family to influence the state.
Madonsela’s term ends tomorrow, and the president had told her not to conclude her investigation until he had personally interviewed the witnesses. But constitutional law expert Shadrack Gutto told The Citizen such a request was both improper and illegal, as Madonsela reported to the National Assembly – not the presidency.
“She’ll do the preliminary report, and the persons involved will see the report and make comments before the Office of the Public Protector ahead of her submitting her final report with remedial action,” Gutto said.
“Before that, the president has no right. And in terms of the law, she has no obligation to give him the names of the witnesses and everything he has requested. “It’s out of line for the president to make that request, so I don’t think the public protector has to worry about it.”
Gutto said Madonsela had no option but to “decline such an unlawful request”.
Political analyst Mcebisi Ndletyana said the request seemed an attempt to jeopardise the probe by intimidating witnesses.
“The president refuses to accept the clarity provided by the public protector for him to provide his own testimony,” Ndletyana said.
“This leads only to one conclusion that can be drawn here: the request being made is meant to intimidate witnesses, suppress evidence and to ultimately derail and cripple the investigation.”
He said the reason why the public protector should not provide access to witnesses and their testimonies was “precisely for the same reason why the ANC’s own investigation never amounted to anything”.
“It is because people feared the repercussions of their identities being publicised.”
Gupta lawyers insist president has right to grill Madonsela’s witnesses
The legal firm representing the Guptas released a letter on behalf of Ajay Gupta defending the president’s request to crossexamine witnesses.
“The Public Protector’s Act clearly allows the questioning and cross-examination of witnesses who have given evidence before the public protector, and which is in Mr Gupta’s rights.
The public protector ignored this request and entitlement,“ said lawyer Gert van der Merwe of Van Der Merwe Associates. But constitutional law expert Shadrack Gutto said the Public Protector Act and chapter 9 of the constitution defended Madonsela’s rights not to heed President Jacob Zuma’s request to provide the names and testimonies of the witnesses.
Gutto said the request amounted to an attempt to intimidate witnesses. But Van der Merwe criticised Madonsela’s decision not to subpoena the family members under investigation.
“There is an anomaly: an investigation into the president that involves and implicates the Gupta family didn’t even subpoena the Gupta brothers.”
In the letter, the lawyer castigates Madonsela for purportedly using the investigation to achieve a personal agenda.
“Mr Gupta’s lawyer argues the conduct of the public protector creates the impression that the public protector’s office had a pre-determined view of how its report would look, and evidence gathered was window-dressing for a decision reached long before Mr Gupta’s version was heard.”
According to Van der Merwe, Madonsela still had not provided a transcript of her interview with Ajay, “which is within his rights”.