The Commission of Inquiry into State Capture and the conduct of the EFF

Economic Freedom Fighters leader Julius Malema address the party's followers outside the Tiso Blackstar building in Joburg. Picture: Itumeleng English/African News Agency(ANA)

Commissions of Inquiry take place in terms of the Commissions Act 8 of 1947. Although it is a short piece of legislation it is an important one and it has been extensively used by different administrations. In terms of section 1 regulations can be promulgated in relation to a Commission set up in terms of this Act.

A judicial commission of inquiry was instituted in terms of the above legislation by the erstwhile president Jacob Zuma on 23 January 2018 into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State. In this regard it must inquire, investigate and make recommendations into such allegations. The Commission was precipitated by a report by the former Public Protector, Thuli Modonela, in relation to the issue of state capture, which was released shortly before she retired from her office.

According to New24 (20 August 2018) at least 11 issues were identified by Madonela in her report into state capture. She gave as examples allegations of attempts to bribe a deputy minister of finance, Mcebisi Jonas, the alleged Guptas’ access to Eskom and possible breaches of the Executive Ethics Code in the appointment of the Cabinet by Zuma. The Commission is not merely a paper tiger and in terms of the Commissions Act referred to above it has the power to enter and search any premises, it can compel anyone to testify and demand that documents be handed over to it. Furthermore, according to the Commission’s proclamation it can refer any matter to the relevant law enforcement agency for prosecution or further investigation.

Furthermore the regulations referred to above were promulgated in relation to the said Commission of Inquiry on 9 February 2018. The Deputy Chief Justice Raymond Zondo has been appointed chairperson of the Commission. Other prominent persons on the Commission are, besides former auditor-general  Terence Nombembe, who is in charge of the investigation team, advocates Paul Pretorius SC, Vincent Maleka, SC, Leah Gcabashe, and Thandi Norman.

Of importance for this article is regulation 12 (1) which states that-

Any person who insults, disparagers or belittles the Chairperson or any member of the Commission or prejudices the inquiry or proceedings or findings of the Commission, is guilty of an offence and liable on conviction to a fine, or to imprisonment for a period not exceeding six months.

This regulation is of importance because it has been reported (NEWS 24 WIRE 26 NOV 2018) that last week, Julius Malema, the Economic Freedom Fighters (EFF) leader, launched  a scathing and vitriolic verbal attack on Minister Pravin Gordhan outside the venue of the Commission in Park Town, Johannesburg, when he was testifying before the Commission. In this regard Malema used derogatory and insulting language, by calling Gordhan ‘corrupt’ and ‘a dog of white monopoly capital’ and claimed that the Minister hated black people. He also accused Deputy Chief Justice of presiding over a ‘micky-mouse’ Commission that was stealing money from the poor. In his attack he verbally insulted Advocate Paul Pretorius SC, an evidence leader at the Commission, referring to him as a ‘bastard’. Furthermore, he also made serious allegations against Gordhan’s daughter, Anisha, alleging she was corruptly awarded contracts by the National Treasury, and other state departments.

Besides the fact that as a result of Malema’s highly populist public diatribe explained above, Gordhan has laid three charges of criminal defamation, crimen injuria and incitement of violence, against Malema, it is manifestly clear that he has prima facie violated regulation 12 (1), set out above. There is also no doubt that his conduct and language could have an intimidating influence on other witnesses who will be required to appear before the Zondo Commission. As a result it is cogently submitted that the state should take immediate action against Malema to deter him from seriously influencing the proceeding and reputation of the Commission. In addition, it is also submitted that in referring to the Commission in derogatory terms as a ‘micky mouse’ one he is not merely insulting it, but in so doing he is actually assaulting the authority of the state by, inter alia, by incitement to violence and thereby undermining the rule of law, which is fundamental to the operation of an orderly state by ensuring that civilized governance takes place.

Some uninformed persons may indeed find this episode amusing and surprised that the antics of a minor political party be given considerable media coverage. It is however most certainly no laughing matter. On the contrary, for some time now it has become categorically clear that the EFF and its leaders are using dangerous fascist tactics to undermine the authority of our democratic state. This they have also done in the recent past by the unseemly pandemonium they have caused in Parliament in relation to the former President, Jacob Zuma.

In so doing they did harm to the office of the President and thereby also prevented other political parties from exercising their essential oversight role in relation to the executive. Indeed in some respects viewed holistically, it is submitted that the fascist strategy and inflammatory language they Malema has adopted in endeavouring to subvert the Commission borders almost on treasonable or at least subversive conduct. The EFF and its leadership have become a tangible threat and danger to our constitutional democracy and it is imperative that cogent action be taken against them by using the appropriate legal and judicial means available to our democratic state in order to protect its authority and indeed its honour by maintaining the rule of law and civilized government, as set out in our Constitution.

George Devenish is Emeritus Professor at UKZN and one of the scholars who assisted in drafting the Interim Constitution in 1993.