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Webber Wentzel contributes to the release of the long-awaited State of Capture Report

On 2 November 2016, judgement was handed down in the Pretoria High Court, in the matter between The President of the Republic of South Africa (the President) and the Public Protector and others, in which Webber Wentzel's Pro Bono department successfully acted for Ms Mabel Patronella (Vytjie) Mentor.

The matter involved an urgent application made by the President on 13 October 2016 to interdict and prohibit the Public Protector from publishing her report into complaints of improper and unethical conduct by the President and officials of state organs due to their alleged inappropriate relationship with members of the Gupta family (the State Capture Report). The President alleged that he was not afforded an opportunity to provide meaningful input into the investigation. The President sought an order from the Court directing the Public Protector to give him a reasonable opportunity (no less than two months) to provide what he deemed to be meaningful input. The President argued that the Public Protector was not functus officio because the report was "unlawful". It was contended to be "unlawful" because the President stated he was denied his right to be heard.

Ms Mentor sought leave to intervene as a Respondent, as did the Democratic Alliance, the Economic Freedom Fighters, United Democratic Movement and Congress of the People. Webber Wentzel was successful in Ms Mentor's applications for intervention as a respondent.

The President stated that he sought an opportunity to question persons who had provided information to the Public Protector and to do so directly, either in person or through his legal representatives. The President relied on section 7(9)(ii) of the Public Protector Act 23 of 1994, which states as follows:

"(a) If it appears to the Public Protector during the course of an investigation that any person is being implicated in the matter being investigated and that such implication may be to the detriment of that person or that an adverse finding pertaining to that person may result, the Public Protector shall afford such person an opportunity to respond in connection therewith, in any manner that be expedient under the circumstances. 

(b) (i) If such implication forms part of the evidence submitted to the Public Protector during an appearance in terms of the provisions of subsection (4), such person shall be afforded an opportunity to be heard in connection therewith by way of giving evidence.

(b) (ii) Such person or his or her legal representative shall be entitled, through the Public Protector, to question other witnesses, determined by the Public Protector, who have appeared before the Public Protector in terms of this section.”

Ms Mentor was interviewed by the Public Protector as part of her investigation into the issue of "state capture". This followed the disclosure made on Facebook by Ms Mentor that she was offered the position of Minister of Public Enterprise by the Gupta family in 2010, with the condition that upon appointment she would be required to cancel South African Airways routes to India. The routes would be taken by an airline in which the Gupta family had shares. Ms Mentor declined the offer and told the Gupta representative that they had no authority to make such an offer. At the time she was chairperson of the parliamentary portfolio committee on public enterprises.

Ms Mentor argued that the President's interpretation of section 7(9)(ii) was flawed. She argued that witnesses may only be questioned through the Public Protector (as an intermediary) and thus not directly by the President and or his legal representative. Submissions were also made that the Public Protector's administrative decision was final and binding until set aside in judicial review proceedings, either on the basis of PAJA or the principle of legality.

After our submissions were filed, the President moved from his previous reasoning in respect of a right of an implicated person in the Public Protector's investigations to interview witnesses.

The President withdrew his application on 2 November 2016 entirely (during the hearing before he was to reply). The president further withdrew his opposition to a counter- application by the political parties that the Public Protector immediately release the report. In terms of an agreement made by all the parties the Court ordered the Public Protector (who was by then Advocate Busiswe Mkhwebane) to publish the State Capture Report forthwith on the same day before 5pm. The President was ordered to pay the costs of the application on the attorney and client scale and the question whether the costs be paid by the President in his personal capacity was reserved.

The Court ordered the intervening parties to submit heads of argument to address the issue of whether the President should be made to pay the costs of the application in his personal capacity. The additional heads of argument were filed on 11 November 2016. We await judgement on this aspect.

On 2 December 2016, the President launched an application to review and set aside the Public Protector's State Capture Report. Ms Mentor has been cited as a respondent. We will be acting on behalf of Ms Mentor in opposing this application.

The Webber Wentzel team consisted of Moray Hathorn, Tshego Phala, Carina Botha and Nonkululeko Williams.

T P Nkadimeng (Slain apartheid activist, Nokuthula Simelane )

This matter is in pursuit of justice for late anti-apartheid activist, Nokuthula Simelane, who was allegedly abducted, tortured and murdered by the apartheid security police over three decades ago.

Webber Wentzel acted for Nokuthula’s family in an application to compel the State to institute prosecution against the apartheid police who were responsible for her abduction and murder.

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Extensive negotiation with the National Director of Public Prosecutions ensued. We worked with the renowned investigator, Frank Dutton, whose investigation pointed to the culpability of certain individuals.

The NDPP has decided to prosecute. The trial was to have commenced on 25 July 2016, in the High Court, Pretoria. It has now been postponed to 25 November 2016.