What Madonsela found 'worrying' during state capture probe

How did the Guptas know that Nhlanhla Nene was going to lose his job as minister of finance? This is just one of the concerns that worried Thuli Madonsela‚ contained in her 355-page state capture report – her final as public protector.

Des van Rooyen's week of meetings at the businessmen's Johannesburg home was also worrying.

• Phone records support Jonas's claims about Treasury job offerTelephone records helped former public protector Thuli Madonsela in her state capture probe.

The “State of Capture” report of the public protector lists some of her concerns, while her proposed course of action is for an independent judicial commission of inquiry to investigate further.

Some of Madonsela's concerns:

"It is worrying that the the Gupta family was aware or may have been aware that Minister Nene was removed six weeks after Deputy Minister Jonas advised him that he had been allegedly offered a job by the Gupta family in exchange for extending favours to their family business.

"Equally worrying is that Minister Van Rooyen who replaced Minister Nene can be placed at the Saxonwold area on at least seven occasions including on the day before he was announced as minister. This looks anomalous given that at the time he was a member of Parliament based in Cape Town.

"Furthermore one of the two advisers he brought with to National Treasury on his first day at work‚ October 11 2015, had contact with someone [in] the Saxonwold area the day before. The coincidence is a source of great concern.

"Another worrying coincidence is that Minister Nene was removed after Mr Jonas advised him that he was going to be removed.

"If the Gupta family knew about the intended appointment it would appear that information was shared then in violation of ... the Executive Ethics Code, which prohibits members of the executive from the use of information received in confidence in the course of their duties or otherwise than in connection with the discharge of their duties."

Madonsela was also concerned that no action seemed to be taken after the allegations began surfacing in the public domain.

"In view of the fact that the allegation that was made public included Mr Jonas alleging that the offer for a position of minister was linked to him being required to extend favours to the Gupta family, failure to verify such allegation may infringe the provisions of section 34 of Prevention and Combatting of Corrupt Activities Act‚ 12 of 2004, which places a duty on persons in positions of authority who knows 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," she said.

Regarding whether President Jacob Zuma improperly and in violation of the Executive Ethics Code allowed members of the Gupta family and his son to engage or to be involved in the process of removal and appointing of various members of Cabinet‚ the report said:

"There seems to be no evidence of action taken by anyone to verify [former ANC MP] Ms [Vytjie] Mentor’s allegation(s). If this observation is true‚ the provisions of section 195 of the Constitution ... would not have been complied with...There might even be a violation of ... the Executive Ethics Code, which prohibits a member of the Executive from using information received in confidence in the course of their duties otherwise than in connection with the discharge of their duties.

"In view of the fact that the allegation that was made public included Mr Jonas alleging that the offer for a position of Minister was linked to him being required to extend favours to the Gupta family‚ 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 knows 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."

• Phone records support Jonas's claims about Treasury job offerTelephone records helped former public protector Thuli Madonsela in her state capture probe. 

Commenting on whether Zuma improperly and in violation of the Executive Ethics Code allowed members of the Gupta family and his son to be involved in the process of appointing members of the board of directors of state-owned enterprises‚ she said: "A similar duty is imposed and possibly violated.

"The same to applies to persistent allegations regarding an alleged cosy relationship between Mr Brian Molefe and the Gupta family. In this case it is worth noting that such allegations are backed by evidence and a source of concern that nothing seems to have been done regardless of the duty imposed by section 195 of the Constitution on relevant state functionaries."

Similarly‚ on whether Zuma has enabled or turned a blind eye‚ in violation of the Executive Ethics Code‚ to alleged corrupt practices by the Gupta family and his son in relation to allegedly linking appointments to "quid pro quo conditions"‚ the report states: "There seems to be no evidence showing that Mr Jonas’ allegations that he was offered money and a ministerial post in exchange for favours were ever investigated by the executive. Only the African National Congress and Parliament seemed to have considered this worthy of examination or scrutiny."

"If this observation is correct, then the provisions of section 2.3 (c) of the Executive Ethics Code may have been infringed," she said.

Madonsela‚ commenting on the question whether Zuma and other Cabinet members improperly interfered in the relationship between banks and Gupta-owned companies – thus giving preferential treatment to such companies on a matter that should have been handled by independent regulatory bodies – said:

"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 needs to be looked at in relation to a possible conflict of interest between the president as head of state and his private interest as a friend and father as envisaged under ... the Executive Ethics Code, which regulates conflict of interest‚ and section 195 of the Constitution, which requires a high level of professional ethics."

• Read the full #StateCaptureReport hereThe Public Protector has released the state capture report, which focuses on the investigation into complaints regarding any alleged improper and unethical conduct by President Jacob Zuma and any other persons related to alleged improper relationships with the Gupta family. Read the full report here...