President Jacob Zuma has written to the Public Protector, Advocate Thuli Madonsela, requesting her to allow him or his legal representative to question other witnesses, determined by the Public Protector, who have appeared before Public Protector.
President Zuma was given two days before the meeting that took place on Thursday, 06 October 2016, to prepare and to give evidence on a whole range of matters which exceeded the ambit of the stated request for the meeting. He is thus of the view that this short notice did not take into account the provisions of Section 7(9) of the Public Protector Act which states that the implicated person (the President in this case) or his legal representative is entitled to question other witnesses, determined by the Public Protector, who have appeared before Public Protector.
In addition, the Public Protector Act allows any person who appears before the Public Protector as a witness to be assisted by an advocate or an attorney and to peruse such documents and records in possession of the Public Protector relevant to the investigation in question.
The President has submitted that in adherence to the audi alteram partem rule, he as an implicated person is entitled to the documents and records gathered in the course of the investigation, to enable him to prepare his evidence. The President is also entitled to question witnesses, assisted by a legal representative.
President Zuma has also submitted that as the Constitutional Court has previously held that the remedial actions taken by the Public Protector are binding, it is imperative that the President be given a full opportunity to be heard in order to avoid remedial actions that can be made, based on evidence not tested by him as the implicated person in the investigation.
In light of the fact that the purpose of the meeting of 6 October 2016 changed from a briefing session as earlier envisaged into a Notice in terms of section 7(9) of the Public Protector Act, the Presidency confirms that when the President met with the Public Protector on that day, the President asked that the meeting be postponed so that he can be provided with the relevant documents and records and where necessary be allowed to question the witnesses who have already testified before the Public Protector. The Public Protector disagreed with the request and instead offered to provide the President with written questions to which the President will be required to respond by an affidavit under oath.
The Public Protector has now provided the President with her written questions.
After careful consideration, President Zuma is still of the view that he must be provided with the list of witnesses who appeared before the Public Protector, statements and/or affidavits as well as transcripts of any oral testimony tendered in this investigation.
Furthermore, the President would want to exercise his right to question some of the witnesses before responding to the written questions and adducing evidence.
The Presidency deems the Public Protector’s statement at the said meeting that she was in a “hurry” to complete the investigation as ill-founded, given the fact that:
• the investigation is not with respect “part-heard” and may well be completed after the term of the current Public Protector, as is the case with other pending investigations;
• the President’s diary as was explained at the said meeting is determined well in advance and therefore the truncated period simply does not permit him to properly attend to the matter.
The Presidency has therefore requested an undertaking by the Public Protector on or before close of business tomorrow, 11 October 2016, that her office will not conclude the investigation and issue any report until:
1. all the evidence received by the Public Protector insofar as it implicates the President or calls upon him to tender an explanation is made available to him;
2. the President is afforded an opportunity to question the witnesses who have tendered such evidence referred to above;
3. the President has been afforded a proper opportunity to tender his evidence as discussed above.