Gordhan, who retired in May, had been scheduled to address the commemoration of an organisation which, as a young activist, he helped to revive as part of the resistance to the apartheid regime.

But, by the time the event was held, Gordhan, 75, was too sick to attend — or even address the commemoration virtually — and instead his message was delivered by longtime friend and fellow activist Ravi Pillay.

Gordhan made a call to the audience — most of them veterans of the fight for liberation and a younger generation of activists — for a “reset”, a return to the values which had sustained them during the struggle.

Rather than focusing entirely on the history of the NIC, Gordhan — typically — used the event to rally against state capture, to call on civil society to move away from self-interest and to ensure that the institutions of democracy “are made state capture proof”.

“We cannot again have a National Prosecuting Authority, certain arms of law enforcement and the public protector’s office recaptured for abuse by those whose only intent is to fill their own bank accounts,” Gordhan said. “Democracy will not survive on its own.”

It was to be Gordhan’s final political act of more than half a century of activism, which began when he joined the NIC in 1971 as a pharmacy student at the University of Durban-Westville.

Gordhan’s intellect, determination and organisational ability were to see him move quickly into the leadership of the NIC, which had been revived to mobilise the Indian community against apartheid.

By 1974 Gordhan was serving on the NIC’s executive council and was to play a key role in the setting up of student and civic structures in Durban — and in the rent and school boycotts which were to follow.

He was to be detained and banned several times for his activism during this period — and again in the 1980s — and was fired as an assistant pharmacist at the King Edward Hospital over his political activism.

A highly skilled backroom operator who shied away from the spotlight, Gordhan was at the centre of the network of student, civic, religious and cultural organisations that were to coalesce under the umbrella of the United Democratic Front (UDF) in 1983.

Gordhan was also drawn into the ANC underground structures, while above ground leading the campaign to boycott the tricameral parliament in 1984 and being detained in terms of the Internal Security Act.

Gordhan was forced to go on the run in 1986 and remained underground until 1990, when he was again arrested for his participation in Operation Vula, a mission by the ANC’s military wing to infiltrate weapons into the country.

He was granted indemnity the next year and became part of the negotiation team at the Convention for a Democratic South Africa (Codesa) and was to become co-chairperson of the transitional executive council which oversaw the preparation for the first democratic elections.

Gordhan served as an MP during the first parliament and was elected as chair of chairs, an influential position he held until he left the National Assembly in 1998.

Gordhan was appointed as commissioner of the South African Revenue Service (Sars) in 1999, a role in which he excelled and which he held for a decade.

He is widely credited with the modernisation of South Africa’s revenue regime — e-filing was introduced under his tenure — and in upping its ability to add to the fiscus by cracking down on sectors which had traditionally evaded tax.

Gordhan was named finance minister in Jacob Zuma’s first cabinet in 2009. It marked the end of Trevor Manuel’s long tenure and was seen as an attempt by the new president to oblige the left who had helped him to power.

In one of his first press briefings as treasury chief, Gordhan was predictably asked whether he remained true to his early communist leanings.

“Are you wearing red socks?” is how the correspondent for The Times phrased the question.

The minister replied that he was at that point no longer a member of the South African Communist Party (SACP) and was driven by reality and not ideology.

He said he aligned himself with the SACP in the 1970s and explored Marxist methodology as a set of humane values and a way of achieving greater social justice. The treasury’s mission, he added, would be to “do our damnedest for the best interests of all our people”.

Gordhan became finance minister during the tail-end of the global financial crisis triggered by the United States subprime mortgage meltdown.

In his maiden budget, he prioritised infrastructure spending and eased exchange controls in an effort to stimulate investment in the South African economy which had entered its first recession in 17 years.

Growth has yet to recover to pre-2008 levels, and throughout his two terms in the portfolio, Gordhan was compelled to walk the line between stimulus and fiscal sustainability. 

His routine exhortations to his colleagues to “tighten our belts” and “cut the fat” would see the left accuse him, unjustly, of austerity. Gordhan lost the battle to contain the public wage bill and to cut support for mismanaged state-owned entities.  

In 2010, faced with the reality of load-shedding and rattled lenders, he was forced to extend loan guarantees of R350 billion to Eskom to allow it to secure funding for the construction of Kusile and Medupi.

The man who would, as Sars commissioner, personally remind captains of industry to pay their taxes, continued as minister to lecture them about the national interest.

In 2011, he appointed Lungisa Fuzile as director general of finance. Their partnership was marked by mutual respect and loyalty and, increasingly over time, resistance to contracts designed in the first instance to benefit the Gupta family. 

Zuma had told Gordhan early in his tenure that he wanted a nuclear power plant project to be awarded to Rosatom, drawing a warning from the minister that not following proper procurement processes would amount to risking a repeat of the arms deal scandal.

He was moved to the cooperative governance portfolio in 2014, when Zuma appointed his former deputy Nhlanhla Nene finance minister. Eighteen months later, Nene was fired for refusing to relent on the nuclear deal with Russia and replaced by Des van Rooyen, a hapless proxy for the Gupta family.

In the four days that followed, the rand fell by 5.4% and bankers held crisis talks with ANC heavyweights, among them Cyril Ramaphosa and treasurer general Zweli Mkhize, who prevailed on Zuma to bring Gordhan back as finance minister.

His second stint frequently met the criteria for constructive dismissal. 

The treasury had become a target for the architects of state capture, the natural progression of their campaign to dictate spending and to dismantle the controls put in place at Sars on Gordhan’s watch.

Tom Moyane was overseeing the undoing of the revenue service, with the tacit support of Zuma. Gordhan ordered the commissioner to halt a disastrous restructuring plan devised with Bain & Co and soon found himself harassed by the Hawks.

Just before his 2016 budget speech, they sent him a list of 27 questions relating to the allegations that he had unlawfully set up a covert intelligence unit at the revenue service. 

He wrote back that he would respond in due course, and accused the police “and those who instructed them” of intimidation and disregard for the economy. In October that year, Gordhan was charged with fraud for approving the early retirement and re-employment of deputy Sars commissioner Ivan Pillay. 

The charges were withdrawn but in April 2017, Zuma fired Gordhan in an infamous midnight cabinet reshuffle that would mark the beginning of the end of his grip on power.

The SACP rejected the reshuffle and Mkhize, Ramaphosa and Gwede Mantashe publicly expressed reservations about the manner in which competent ministers were removed. 

Gordhan returned to the backbenches and played an active role in a parliamentary inquiry into corruption at Eskom, driven by a lasting commitment to the public cause and barely concealed anger. 

He used his inside knowledge to grill board members about the genesis of ruinous coal contracts awarded to the Guptas and told then public enterprises minister Lynne Brown her denial of complicity was not plausible. 

“Join the dots,” became a refrain as he urged colleagues to see and stem the corruption.

When Ramaphosa named Gordhan minister of public enterprises in his first cabinet in 2018, he handed him the burden of righting Eskom, Transnet, SAA, Denel and other parastatals after years of state capture. 

Ironically and inevitably, it would be his least successful years in cabinet.

“There are people among us, and perhaps outside as well, who perhaps don’t want these SOEs to find themselves on the right track, because they would like to explore the possibility of state capture version two,” he warned in 2022.

The opponents of Ramaphosa’s renewal drive had continued to use the “rogue unit” conspiracy to hound the minister though retired judge Robert Nugent, who headed up a commission of inquiry into Sars, in 2018 concluded there was no evidence he had acted unlawfully. 

Former public protector Busisiwe Mkwebane ignored his findings and delivered a report recommending that Gorhan be disciplined for misleading parliament. In 2022, the constitutional court vindicated the minister when it denied her leave to appeal the overturning of the report on review and ordered her to pay his legal costs.

Gordhan’s last months in cabinet saw him refuting allegations that he improperly influenced the sale of SAA to the Takatso consortium. Pressed by parliament, he refused to disclose the details of the shareholder deal, insisting that it should be treated as confidential along with the shortlist of bidders. 

He camped on this position after announcing the cancellation of the deal. If the controversy, endlessly hyped by the Economic Freedom Fighters, confirmed anything, it was Gordhan’s attachment to the notion that the state should, as shareholder, retain an engaged role in public enterprises and by extension in shaping the economy.
His critics called it political meddling and correctly observed that Transnet and Eskom remained as troubled as ever and the unbundling of the latter had routinely stalled. After Gordhan, Ramaphosa shut the department founded in 1999 with the aim of restructuring public companies to become cornerstones of the economy. Gordhan stubbornly subscribed to that aspiration but the project had failed irredeemably by the time he was asked to salvage it.

Ramaphosa used his question time in the National Council of Provinces (NCOP) and Steenhuisen used his address to the Cape Town press club to hammer home the message that Bela — and the National Health Insurance — did not pose an “existential threat” to their government.

Their parallel interventions came the morning after Ramaphosa convened a dinner for talks with leaders of parties involved in the GNU on Wednesday night to head off a crisis over the Bela Bill, which the DA has opposed since its inception.

Ramaphosa told the NCOP he did not see a threat to the future of the coalition.

“I don’t work on the basis that we are going to differ to a point of even parting ways. I have often worked on the basis of what Nelson Mandela taught us — that for every problem there is a solution,” he said.

“And so you try to find the solution. We confirmed this yesterday that we will find solutions to whatever may arise, because problems will arise and we should never kid ourselves and think that we will not have challenges.”

He said when this happens, the parties will settle the problem by talking it through until sufficient consensus is found.

“Will we take them to arbitration or mediation? No, we will engage among ourselves.”

Steenhuisen’s tone was more confrontational. 

He said he had met Ramaphosa to discuss the Bela Bill on Wednesday and that should the president go ahead with signing it, the DA would have to “consider all of our options on the way forward”.

“The same applies to the NHI. Our first instinct is to find solutions to the aspects of the NHI plan that will do lasting damage to South Africa, and our ability to deliver healthcare to all. If we can find those solutions collaboratively we would be delighted,” Steenhuisen said.

“If we can’t, we will pursue the interests of the South African people through every other legal means at our disposal.”

Steenhuisen reiterated the stance displayed by the presidency in a briefing by spokesperson Vincent Magwenya on Wednesday that “conflict over policy in the GNU is not necessarily an existential threat to the government”.

“It is of critical importance to understand that conflict over policy in a multi-party government like the GNU is normal and indeed necessary in a democracy. It is not necessarily an existential threat to the government,” Steenhuisen said.

This did not mean that “the DA would never walk away under any circumstances” and that it would not be a part of a government which was not focused on creating jobs and growing the economy.

If the ANC implemented ruinous economic policy, or sought to compromise the Constitution or undermine the independence of institutions such as the South African Reserve Bank, it would be the DA’s “patriotic duty to leave the government” and join the opposition.

“The DA will not crash the government unless the government is crashing the economy or trashing the Constitution,” he said.

Steenhuisen said the DA accepted that “we cannot get everything our own way inside the government” with 22% of the vote and that the party’s long term and more recent supporters needed to do so too.

While it would be “undemocratic” for the DA to expect to dictate terms, so too would a situation in which “we get none of our priorities implemented”, which was something the party would not accept.

He said the DA held the balance of power because, without it, “the government does not have a majority in parliament” and would not “shy away from conflict when we are confronted with serious and lasting damage to our country or to the Constitution that underpins our democracy”.

“In a multi-party government leaders need to respect the constraints and imperatives of their partners,” he said. “Any leader that tries to ride roughshod over their partners will pay a price, because a time will come when the shoe is on the other foot, and they will need the understanding of those same partners in turn.”

Steenhuisen has warned that Ramaphosa would be violating the letter and the spirit of the statement of intent that formed the basis for parties’ coalition agreement if he signed the Bill.

Ramaphosa stressed that the statement of intent remained central to the coalition pact.

He said there would always be differences of view in the executive because these were normal in any relationship, and more so still in one between members of different political parties.

“Of course we are all from parties that have different manifestos, parties that adhere to different ideologies, but what unites us is the statement of intent.”

It also laid the foundation for forging consensus in the coalition, he said.

“Last night when we met we decided that in ensuring that we enhance good working relationships we will have what we call a processing team, a team that will process whatever needs to be addressed by the leaders of all the political parties.”

“That processing team will identify those issues that we need to discuss and, say, resolve from time to time.”

He acknowledged opposition to the NHI — both from political and business quarters —  saying Business Unity South Africa had sent him “a fairly long letter where they raise their objections, as have others”. 

“They have requested that I engage them, and I said to the minister: ‘We meet them.’ We are going to meet them and hear the concerns they have been raising over a long time.”

But he added that the NHI was provided for in legislation passed by parliament, which he signed in May, and suggested that discussions would revolve around how the scheme is implemented, not on whether it is done.

“This parliament passed the Act and in doing so it took into account the various inputs that had been made by multiplicity of people through the length and breadth of the country,” Ramaphosa said.

“There are people who still want to talk about the implementation of the NHI and I am that we talk about how this Act is going to be implemented and to hear the concerns that they have.”

He planned to have these discussions in the course of the next few weeks.
The DA had called the president’s decision to sign assent to the NHI Bill a fortnight before the elections a populist stunt.

The dinner comes amid tension over Ramaphosa’s stated intent to sign the Basic Education Laws Amendment Bill into law on Friday. The Democratic Alliance has warned that proceeding to do so would put the future of the coalition at risk.

Presidential spokesman Vincent Magwenya said the timing of the gathering should not be read as a sign of trouble within the so-called government of national unity, but in the same breath dismissed threats to its survival as “disturbing”.

“The purpose of the dinner is to provide an opportunity for a review on the functioning of the GNU thus far and to discuss in detail the formulation of a dispute resolution mechanism,” Magwenya told journalists in Cape Town.

“This evening is an opportunity for all party leaders to provide their own assessments and give feedback to the president. Leaders will be able to raise any issues of concern.”

He said Ramaphosa was “satisfied” with the work of the coalition government.

“The president is also enthused with the level of dedication and commitment that has been demonstrated by members of his national executive, as well as the level of collaboration that ministers from different parties have applied in resolving challenges facing the government and the country.”

He said one example of this was the cooperation between DA leader and agriculture minister John Steenhuisen and international relations minister Ronald Lamola in favourably renegotiating South Africa’s agreement with China on agricultural trade last week.

Steenhuisen on Wednesday said if Ramaphosa were to assent to the basic education bill, he would be violating “both the letter and spirit” of the joint statement of intent that underpins the unity government.

“During the negotiations, the DA made it clear that the BELA Bill was unacceptable to us in its current form, because it has constitutional implications for the right to mother-tongue education, amongst other issues.”

He recalled that his party urged Ramaphosa to send the measure back to parliament for amendments that would cure what the DA considers unconstitutional provisions.

“Despite this, and in violation of the provisions of the statement of intent, the president seems intent on pushing ahead unilaterally. I have moved urgently to meet the president before Friday to reiterate our objections in the strongest terms.”

“If the president continues to ride rough-shod over these objections, he is endangering the future of the government of national unity, and destroying the good faith on which it was based.”

Steenhuisen said the ANC could no longer act unilaterally and he would convey to Ramaphosa “the destructive implications it holds for the future of the GNU” if he assented to the bill.

He added that the creation of a dispute resolution mechanism within the coalition was now an urgent priority.

Steenhuisen’s remarks are the first indication of serious acrimony within the new government since it came into office three months ago.

Magwyena said it was worth recalling that there were limited grounds on which the president could refer legislation back to parliament.

Section 79(1) of the Constitution stipulates that the president must either assent to and sign a bill passed by parliament, or should he have reservations about its constitutionality, refer it back to the national assembly for reconsideration.

The Constitutional Court has made clear that the president cannot refuse to sign a bill for political reasons, Magwenya said. 

“The only ground on which the president can refuse to sign the bill is constitutional reservations.”

It meant, he continued, that the president must apply his mind to submissions regarding the constitutionality of legislation and if he felt that these were not persuasive, proceed to assent to the bill in question.

“There is no provision in the Constitution for the president’s decision to be subject to negotiation or agreement with any other party or individual. The president remains firmly committed to engaging fully with parties in the government of national unity on this matter and any other matter of concern.”

He said threats regarding the stability of the government of national unity were not helpful.

“It is disturbing that whenever there is a dispute you will hear threats being made to the stability of the GNU,” he said.

“It is disturbing because such threats are not only directed to the president, they are directed also to the stability of the country. They are threats directed to South Africans. The GNU must remain stable, must remain united.”

The bill imposes penalties on parents who do not enrol their children in school and provides for the admission of undocumented children.

The DA’s objections revolve around the provisions on language policy, where the bill strengthens the department of basic education’s oversight over the decisions taken by school governing bodies.

Basic education minister Siwive Gwarube, a senior member of the DA, has described the draft law as a threat to the autonomy of schools.

In doing so, Ramaphosa would bear in mind the need for the “highest levels of integrity within the national executive”, his spokesman Vincent Magwenya told a routine media briefing in Cape Town. 

“The president appreciates the importance of the justice ministry in the leadership of the justice, security and crime prevention cluster and the successful functioning of the cluster,” Magwenya said.

“He will consider all the facts of the matter before making any determination.”

Simelane on Friday told the portfolio committee on justice she had given Ramaphosa a full account of her decision to borrow R575 000 from Gundo Wealth Solutions while she was the mayor of Polokwane.

The same company had solicited deposits of millions of rands from the Polokwane municipality on behalf of VBS, despite public finance rules barring municipalities from placing money with mutual banks.

The minister told MPs that she used the money to buy a coffee shop in Sandton as a source of income and employment for her extended family, and had repaid the loan in full, in three instalments from October 2020 to January 2021. 

She paid 50% interest, she said. This prompted incredulous questions as to why she had not only seen fit to take money from a company that was doing business with the municipality but charged unfavourable rates.

Simelane replied that the Polokwane municipality had not paid Gundo for serving as a middleman and that she had not been able to secure better terms from banks and financial service providers.

“I attempted a loan,” Simelane said. “The costs were as exorbitant as this cost. It was at that level,” she said, before adding that apart from First National Bank she also approached Old Mutual.

“It was not affordable for me at the time and I wanted the venture.”

She has since sold the coffee shop.

Simelane did not provide the portfolio committee with proof of the loan agreement and repayment but said she would consider doing so.

VBS collapsed in 2018 after its coffers were depleted by a fraudulent scheme in which money flowed from suspense accounts to bank officials and their family members. 

According to a leaked affidavit by Tshifhiwa Matodzi, the former board chair of the bank, local government officials were offered loans in return for persuading municipalities to deposit vast sums with the bank. He has been jailed for the theft of R1.9 billion.

Simelane has insisted that Polokwane — unlike other Limpopo municipalities — lost no money because she had ensured that all deposits were withdrawn.

The minister told MPs she saw no conflict of interest in the fact that in her present portfolio she has political oversight over the National Prosecuting Authority, which is pursuing charges against those implicated in the demise of the bank.

She briefly served as minister of cooperative governance after the May elections.

“The department of constitutional development and justice plays no role in the decision-making by the NPA on who to prosecute or not.”

Chili on Wednesday expanded on his reasons for dismissing that application in March, and said all Zuma’s grounds for pleading that Downer compromised his fair trial rights were without merit.

He set out his reasoning at the insistence of Zuma’s legal team, who argued that it was necessary to allow them to mount an appeal. The court had intended to give full reasons at the end of the trial, which the state said was the correct approach and would prevent further delay in the case that dates back to 2005.

Downer asked Chili to set down a date for hearing the application for leave to appeal this year still, but the judge said he would only be available from January next year.

The prosecutor said he was reiterating his plea that the court reserve the weeks from 14 April to 20 June, and 21 July to 19 September for trial, whatever the outcome of the planned application. 

“Those dates in April must remain and the trial must start, whatever the status of any appeal processes might be going forward, because no matter what your Lordship decides in January on the date which the court will insert.”

Downer said it was clear that if the application for leave to appeal were denied, Zuma would appeal to a higher court “in accordance with what we say is Stalingrad”.

“This cannot be allowed to continue,” he added.

“We will be ready for trial, the state witnesses will be briefed, the police will be available, the court will be available and my learned friends, certainly for accused number two [French arms maker Thales] have indicated that they will be available.”

Downer said Zuma’s chief counsel, Dali Mpofu, had also confirmed his availability.

“We must now make it clear that we cannot simply carry on moving the trial on to accommodate a long series of appeals which takes sometimes years, up to the SCA [supreme court of appeal] and the constitutional court,” Downer said. 

Advocate Nqabayethu Buthelezi, for Zuma, countered that it would be unfair to the court to reserve dates when Chili’s ruling is being appealed and that the process needs to run its full course.

“The appeal avenues that exist in as far as petitioning the SCA and further, make it unfeasible that we would sit here in good mind and good conscience and accept that we are going to start the trial as of April next year. That is not possible.”

Chili said he would consult the judge president of KwaZulu-Natal regarding available dates.

In his reasons for dismissing Zuma’s second tilt at dislodging Downer in the last three years, the judge referred to a ruling by the appellate court in which his attempt to institute a private, criminal prosecution against the veteran prosecutor was deemed a hopeless case and an egregious abuse of process.

The purported prosecution was one of the four pillars on which Zuma constructed his application for Downer’s removal. Like the other three, Chili said, it did not hold up.

Zuma’s lawyers had argued that Downer was disqualified by the fact that he faced charges, instituted by the accused himself, of breaching the National Prosecuting Authority (NPA) Act by leaking his confidential medical records to the media.

But Chili said the high court, in a ruling by the initial trial judge, Piet Koen, held that none such happened. A full bench reached the same conclusion, and these findings were confirmed by the appellate. 

“It is important to note that every attempt to overturn Koen J’s judgment has been unsuccessful. Findings made in the removal and private prosecution judgments are binding on this court,” he stressed.

Therefore, Zuma’s further argument that it would make a mockery of the justice system if Downer were to appear as an accused one day, and the next appear in court to prosecute his accuser, stood to be dismissed.

Chili said had the charges against Downer stood, he would not have hesitated to grant an order for his removal.

“But that is not the position. As things stand there is no private prosecution. All attempts by Mr Zuma to prosecute Mr Downer have been unsuccessful.

“I might just add that as a debate of the hearing of argument in the present application, the supreme court of appeal had already made a factual finding that the attempt by Mr Zuma to prosecute Mr Downer amounted to an abuse of process.”

He quoted at some length from the SCA ruling.

“The facts demonstrate that a private prosecution of Mr Downer is an abuse of the process of the court for multiple reasons. First, as the high court found, it was instituted as a further step in a sustained attempt by Mr Zuma to obstruct and delay his criminal trial.

“This is an ulterior purpose and the institution of the private prosecution was accordingly unlawful. Second, it was instituted in order to have Mr Downer removed as the prosecutor in Mr Zuma’s trial. This too is an ulterior purpose which renders the private prosecution unlawful and, third, the contemplated private prosecution is patently a hopeless case. It is obviously unsustainable.”

Zuma had sought to bolster his application by reviving a complaint that Downer had impermissibly divulged details of the prosecution to investigative journalist Sam Sole in 2008. That too has been found to be meritless, Chili said.

The judge also quoted submission by advocate Geoff Budlender, for the NPA, that Zuma was attempting, through his multiple applications, to pick the prosecutor of his choice to conduct the trial stemming from alleged fraud, corruption and money-laundering related to South Africa’s 1990s arms acquisition.

“He proceeded to say that if such a process were allowed that would become a standard tool in the toolbox for well-resourced accused persons to abuse the process. He further expressed the view that our law does not tolerate such processes,” Chili said.

“There is merit in that argument.”

He noted that Downer had argued that the complexity of the case, and the financial prejudice his removal would mean for the state, were among the reasons he should be retained.

Zuma did not deal with these submissions in his answering affidavit, other than saying Downer was not indispensable, Chili noted.

Furthermore, Zuma had conceded that many of his complaints against Downer have been dealt with by the courts but said he was raising these again to demonstrate that the atmosphere surrounding the trial had become too toxic for him to prosecute the matter. 

The court did not agree. 

“Having considered all the grounds advanced by Mr Zuma, both individually and cumulatively, I was unable to conclude that Mr Zuma’s right to a fair trial will be violated if Mr Downer will remain the prosecutor in the matter,” Chili said.

“In order to fulfil its constitutional mandate, and to meet the expectations of the public, the ID [Investigating Directorate] requires what we call unhindered access to the archives of the state capture commission, including electronic databases,” Batohi said.

“The ID has been provided levels of access but not the access that it needs.”

Batohi told parliament’s portfolio committee on justice that while the entity’s frustration became public thanks only to a question at a media briefing in April, it had been trying to resolve the problem with the department of justice, which serves as the custodian of the information, and with the commission itself.

The commission officially completed its work and ceased to be in June 2022 when then chief justice Raymond Zondo handed the final volumes of the report on state capture to President Cyril Ramaphosa. 

But the ID became entitled to access to the information it garnered two years earlier, in July 2020, when the commission amended regulation 11 to allow it insight into evidence with a view to allowing criminal investigations to commence while the inquiry unfolded.

“It was amended at the absolute push and drive of the NPA,” Batohi recalled.

She said former justice minister Ronald Lamola reassured the prosecuting authority two years ago when he decided to place the digital forensic laboratory of the Zondo commission in the custody of his department, that it would continue to have unhindered access to the information.

“So that is what we are asking for and requiring,” Batohi said.

Batohi defined this as allowing investigators from the ID to “enter the premises housing the Zondo archive where they will without hindrance and at their own discretion be able to search all hard copy documents as well as electronic data, wherever they are situated”. 

She said this included access to classified documents, as well as evidence such as bank account statements that were obtained by the commission — subject to certain conditions.

“In our view these documents may be searched and examined and removed by investigators with the appropriate security classification and then we can look at how we deal with the issues that the secretariat of the commission may have with regard to how this information is utilised in the context of investigations and potential prosecutions.”

Doc Mashabane, the director general of justice, said managing and safeguarding a trove of information was a complex endeavour and protocols had been agreed in terms of which all agencies within the criminal justice system could request specific information.

“We have never gotten to a situation where specific information can be said to have been denied, for whatever reason. Information is always provided,” Mashabane said.

But Batohi stressed that investigators should be allowed to browse the archive to locate evidence they may not know exists, instead of being asked to pinpoint what they wanted. 

“The challenge we have is that, firstly, it cannot be upon the basis of a request and a receipt. In order to conduct a criminal investigation it stands to reason that one cannot request what one does not know exists.” 

Batohi said although it was true that the now all but defunct secretariat of the commission had given NPA staff login details to a database, this hardly solved the problem. 

It pertained to only one database, the so-called “relativity platform”, and investigators discovered that although they were able to log into the system, the information remained inaccessible. It excluded physical documents investigators needed to peruse.

“It does not include physical, hard copy documents that we want to be able to search and take what we want, while protecting the integrity of the information.”

She said these difficulties were not helpful in terms of prosecuting state capture crimes and needed to be resolved so that prosecutors had access to “all of the information” — of which there was more than a million gigabytes.

Batohi said she wanted to move forward in a manner that addressed the security and legality concerns of the department and what remained of the secretariat but limited access would never be a satisfactory option. 

“We want to deal with this in a responsible manner but it cannot be that ‘you are not entitled to certain aspects of it because it was not used by the commission’,” Batohi said.

She added that this included the Gupta leaks database, a reclaimed hard-drive with information that revealed the extent to which corruption had infiltrated the state.

The fact that these issues persisted, Batohi suggested, left her wondering whether there was a shared will to solve the problem definitively. 

“When things take weeks and months and there are no responses, then you begin to wonder whether there is a real sense of urgency that is understood by everybody that is meant to be working together on this.”

Itumeleng Mosala, the former secretary of the Zondo commission, said the archive comprised more than a million gigabytes, which translates into 500 billion pages in print, and there had been difficulties with a transition of software guarantees.

Democratic Alliance MP Glynnis Breytenbach said it was exasperating that it had taken years for the to and fro about full access to the archive to become public knowledge because the prosecuting authority had every reason and opportunity to alert parliament.

“We would have helped you,” Breytenbach added. 

Batohi replied that she had hoped to settle the issue “within the family” but conceded to some relief that it had come into the public domain because the NPA alone has had to face pressure over the slow pace of state capture prosecutions.

To date, there has not been a single high-level conviction for state capture crimes, and the NPA has suffered a number of humiliating setbacks in the cases it has brought before court so far.

Justice Minister Thembi Simelane said it was unfair that she was blamed for stalling access to the archive because she has only been in the portfolio for three months and was not exhaustively briefed by Lamola about the problem.

“I have met with the national director of public prosecution after being entrusted with the responsibility as the minister of justice and constitutional development to take the NPA into my confidence that I am going to give the authority and other law enforcement agencies my support on any matter,” Simelane said after the meeting.

Matthews, regarded as one of the early Black Consciousness poets, died in Cape Town on Saturday. He was 95.

“James Matthews’s voice will ring in our consciousness following his departure and we will remain captivated and inspired by the rage and elegance with which he articulated the stark struggles of the oppressed,” the president said.

“We will be comforted by the many works he has left for us to revisit and by our memories of his appearances at rallies, ghoembas, the frontlines of the street protest and intimate circle of kindred creatives where, beret askew on his head, he would feed the souls and fighting spirit of those around him.”

Matthews was called “a true artist” whose writing gave a voice to those who were silenced by apartheid by the Western Cape government. 

“As prolific and talented as James Matthews was, he was so much more than just a writer and poet; he was integral to the anti-apartheid movement, giving a powerful voice through his writing to the oppressed. He was an important part of our province and country’s artistic fabric,” premier Alan Winde said. 

Matthews was born in 1929 and grew up in District Six in what he described as a house without bookshelves.

He attended Trafalgar High School where a teacher named Miss Meredith proclaimed that he was a writer after marking one of his compositions. 

“She announced to the class that I had written a short story and not a composition. She marked it 21, one mark above the accepted 20 and informed the class that I was a writer,” he recalled in 2016 when he accepted an honorary doctorate from Rhodes University.

After leaving school, Matthews found work as a messenger at the Cape Times. Library access allowed him to explore literature properly for the first time, and he began crafting short stories that were published in the arts pages of both that newspaper and the Cape Argus.

As his teacher predicted, it “spelled out the realisation that I was working towards becoming a writer,” Matthews said. 

“It was ironic; except for Jack Cope, who was a sub-editor, none of the reporting staff had short stories published. I was serving them tea on night shift.”

Matthews’s journalism was published in Drum and the Muslim News. His poetry and short stories mapped the scars that poverty and racial oppression left on the psyche of ordinary people grasping for dignity.

His stories were published in Europe in the 1960s. His first anthology of poetry, Cry Rage, appeared in 1972. It was banned by the apartheid government. Black Voices Shout followed in 1974. 

Two years later, he was detained for months at Victor Verster prison in Paarl and subsequently repeatedly denied a passport.

He managed to travel to Germany and the United States in the 1980s and was awarded a fellowship by the University of Iowa and given the freedom of the cities of Nuernberg and Lehrte.

Matthews published nine volumes of poetry, a collection of short stories, The Park and Other Stories, and a novel, The Party is Over.  

He was a founding member and patron of the Congress of South African Writers and set up two publishing houses, BLAC Publications and Realities.

Matthews lived in Cape Town all his life.

He was awarded the national order of Ikamanga in 2004.

“It came at about two points down from a financial investment, which is a bank,” Simelane said she found after she compared the loan she had with Gundo Wealth Solutions to the terms banks would offer for the same.

The minister stressed that the agreement with Gundo did not require her to pay back any money for a number of years.

Simelane was grilled on the subject by Democratic Alliance MP Glynnis Breytenbach during an appearance before the portfolio committee on justice to answer questions on the loan she took while serving as mayor of Polokwane from a middleman who persuaded the municipality to deposit millions into VBS.

Municipalities are not allowed to deposit money with mutual banks but Polokwane committed more than R300 million in this manner in 2016 and 2017. The deposits were solicited by Ralliom Razwinane, who owned Gundo and faces corruption charges, some reportedly specifically linked to extracting the money from the municipality.

Simelane, the former minister of co-operative governance, told the parliament committee she approached his company for financial advice because she had been thinking of opening a business given that public office did not guarantee long-term employment security.

She stressed that she did not take out a loan from VBS but from Gundo and that Gundo was not one of the municipality’s registered service providers and did not receive a cent from it.

She said she paid back R849 000 on the loan of R575 600 but did so over a period of four years. 

“I loaned [sic] from Gundo, not from VBS,” Simelane said.

Breytenbach said this was cold comfort, and left the question as to why she sought personal financial advice from an entity that was doing business with the municipality for which she had ultimate responsibility as mayor.

“You were the head honcho, the top of the pyramid and they knew it, so of course they would be happy to accommodate you.”

Breytenbach noted that the forensic investigations that followed the collapse of VBS in 2018 showed that Gundo made a lot of money in return for soliciting deposits from municipalities.

She added that this was certainly the source of the money lent to Simelane.

“What is clear from the analysis of the money is that they were certainly richly remunerated by VBS for garnering investments, and made a vast amount of money for doing very little. Also paid huge kickbacks, and that is not even a dispute. So the whole scheme was a cynical, sick and dodgy scheme to defraud the poorest of the poor people, particularly in Limpopo.

“They did it to make dodgy money and they made dodgy money and lots of it. All of their money was dodgy money and you were the recipient of some of that dodgy money.”

Breytenbach said when one considered the interest Simelane ultimately paid Gundo when she repaid the loan she used to buy a coffee shop in Sandton, the decision to take money from the company became more baffling.

“Did you at any stage attempt to get an arm’s-length, proper ordinary commercial loan from a bank? Your own bank?” she asked.

“What was so attractive about doing business with Gundo, particularly bearing in mind the extortionate, really extortionate, if your figures are correct, of the interest on a loan of R575,600.

“You paid interest of R274,399. It is practically 50%, and in fact it works out to 47% … on a loan that in the bigger scheme of things is not even huge. Why would you enter into such a one-sided transaction when you could have gone to a real bank and got a real loan at a real interest rate?

“It makes no commercial sense so it makes, forgive me, the whole transaction look exceptionally suspicious.”

The minister replied that she took this route, on advice from Gundo, after initially considering withdrawing a portion of her government pension.

“I attempted a loan,” Simelane said. “The costs were as exorbitant as this cost. It was at that level,” she said, before adding that apart from First National Bank she also approached Old Mutual.

“It was not affordable for me at the time and I wanted the venture.”

She suggested that the loan from Gundo came with considerable leeway on repayment because it was a case of “someone gives you money and you do not pay for about three years”.

The explanation did not seem to persuade committee members. DA MP Damian Klopper asked whether Simelane considered using her credit card as financing instead, because the interest charged would have been about 19%. He also asked whether the coffee shop still existed.

Simelane said it did but it was no longer in her hands because she decided during the Covid-19 pandemic not to renew the lease.

She said she had given President Cyril Ramaphosa a full report on what transpired, as requested, and that this included proof of the loan and the subsequent repayment in three instalments in late 2020 and early 2021.

The sums were paid from her family’s business account to Gundo’s Nedbank account on 9 October 2020, 12 November 2020 and 7 January 2021. 

Simelane said she would consider providing the proof to the committee. 

She emphasised that the municipality lost no money in the VBS scandal because once she became aware that the bank was in trouble she gave instructions that Polokwane’s deposits be withdrawn. The money was taken out before the bank collapsed.

Xola Nqola, the chairperson of the parliamentary committee, said he would seek the advice of parliament’s legal counsel with regard to obtaining the documentation from the minister. 

Simelane resisted strenuous warning from MPs from several parties that the controversy and the ongoing investigation into Gundo created an untenable conflict of interest because, as justice minister, she holds ultimate political responsibility for the National Prosecuting Authority (NPA).

Breytenbach recalled that Vusi Pikoli was removed as head of the NPA because he resisted ministerial orders to halt the prosecution of former police chief Jackie Selebi.

The minister replied that this happened in a different era and that she would not, and could not, instruct the prosecuting authority not to pursue its investigations into the VBS scandal.

“The department of constitutional development and justice plays no role in the decision-making by the NPA on who to prosecute or not. The office I hold does not have a direct relationship instructing or convincing the NPA on how to act on their mandate.”

She emphasised that the NPA reported to the minister upon request, and that she had no intention of requesting it does so with regard to VBS but would instead remain removed.

Opposition MPs were sceptical, with the African Christian Democratic Party’s Steve Swart saying he believed there was “a glaring conflict of interest”. But ANC MP Oscar Mathafa cautioned that they should not suggest that the prosecuting authority was malleable. He added however that he would like Simelane to provide the committee with proof of the loan agreement and repayment.
Breytenbach told the Mail & Guardian she believed Simelane should “step aside”, stopping short of calling for her resignation.

Advocate Wim Trengove SC, for Freedom Under Law (FUL), argued that the constitution gave members of the assembly not simply the power but the responsibility to designate representatives to the JSC.

This meant that it must “at least make a careful choice”, which involved pausing to consider whether the nominee was suitable for appointment.

“There must be at least a discretion exercised, thought given to the question: ‘is this candidate suitable for appointment, is the candidate capable of doing the job, is the candidate someone whose participation in the appointment of judges will instil confidence in the public mind in the manner in which judges are appointed?’ ”

If the power of designation was the power to make a choice, that choice had to be rational, not random, he continued.

Trengove said parliament did not have a specific process for designating members to serve on the JSC, so it took the same approach it does when constituting portfolio committees.

“I am not blaming them, but it was a big mistake,” he added.

It had created a custom, according to papers filed by National Assembly speaker Thoko Didiza, that the house endorsed whoever political parties nominated to represent it at the commission.

The problem, Trengove said, is that the JSC is not a parliamentary committee and that MPs who served on it do not represent various political parties, as they did on portfolio committees, but the National Assembly and, vicariously, the public.

Didiza, who has elected to abide by the court’s decision, reiterated in her submissions that Hlophe’s nomination presented a unique scenario but in the absence of any law barring an impeached judge from serving on the commission, a decision was taken not to disturb the convention and to respect the mandate given to the MK party by its voters.

While some political parties, chief among them the Democratic Alliance (DA), had argued against appointing Hlophe, the ANC did not because it considered the chamber bound by the unwritten rule the speaker cited. 

Trengove said this amounted to delegating the authority vested in the assembly by the constitution to name members to serve on the JSC to the MK party, which Hlophe joined four months after he was impeached for gross misconduct.

He was asked by justice Selby Baqwa whether this implied that, though Hlophe’s nomination was clearly a unique scenario, the assembly had acted unlawfully in the past when it appointed other MPs to the JSC in the same manner. 

“Now when people follow precedent as we do in our law, can it then be said to be acting wrongly, or unlawfully or improperly or irrationally?”

Trengove said he could not speak to the past but the speaker’s submission made plain that in this instance the assembly followed the same process as when constituting committees.

“Let me assume for a moment that they have probably always done so, well then they have always acted unlawfully. An unlawful exercise of a public power does not become lawful because you have done it many times,” he added.

“It might make it humanly understandable, but it does not make it lawful.”

The first requirement of exercising public power is that it must be done by the person who holds the power. 

“You can’t defer to anyone else. You can’t pass the buck.”

Trengove said this was precisely what happened when MPs simply endorsed the MK party’s nomination on the assumption that they had no discretion to do otherwise.

“It does not matter whether they understandably did so, maybe they did. It does not matter that they might in the past have done so, maybe they did. But it is blatantly illegal.”

The second requirement was that public power be exercised in the public interest.

Here Trengove cited constitutional court justice Mbuyiseli Madlanga’s writing in Helen Suzman Foundation v Judicial Service Commission: “Without doubt the JSC’s function of recommending appointments to the senior judiciary is of singular importance.  

“Bearing in mind the importance of this function, I do not think it unreasonable to expect that those that bear the responsibility of nominating, designating or electing individuals for membership of the JSC will take their responsibility seriously and identify people who are suitably qualified for the position.”

The NA patently failed to do so, Trengove said, because it was on record that it did not think it was its place to ask whether Hlophe was suitable.

“Even before you get to rationality, the decision was fatally flawed, because the organ of state vested with the power of designation made no choice. They made no choice at all. They rubber-stamped a designation.”

Trengove dismissed the respondents’ argument that the assembly’s decision was not reviewable as administrative action because it was made by a legislative body.

“That is not so. This is an administrative decision vested in a legislative body. But they don’t make law when they designate people.”

Even if the court were to reject this argument, the decision remained reviewable in terms of the doctrine of legality, he said. 

Advocate Max du Plessis, also appearing for FUL, said it was trite that all public power must be exercised rationally. The argument by the respondents that the constitution did not expressly demand that the assembly consider the suitability of candidates nominated to serve on the JSC therefore did not hold.

This was so because the commission had the task of considering whether candidates for judicial appointment were fit and proper, and beyond that, to protect the integrity of the courts.

“The JSC process must contribute to the moral authority of the judiciary and must enhance the public’s confidence in the appointment of our judges.”

Because Hlophe has been found to be grossly unfit for the bench, “his position on the JSC means that the JSC itself cannot achieve the purpose of appointing fit and proper candidates”.

Hlophe and his party have argued that his long history as a senior judge made him eminently suitable to serve on the JSC. In February, the former judge president of the Western Cape division became the first judge to be impeached in the post-apartheid era.

The JSC in 2021 affirmed a finding by the Judicial Conduct Tribunal that Hlophe had committed gross misconduct by raising a pending ruling relating to former president and now MK party leader Jacob Zuma’s arms deal corruption case with two constitutional court justices. 

The tribunal found that Hlophe seemed to have been on a politically motivated “mission” to sway justices Chris Jafta and Bess Nkabinde when he tried to raise the matter with them in separate meetings in the spring of 2008, a year before Zuma became president.

Hlophe maintains that he had done nothing wrong and will continue to seek to overturn the JSC’s finding and his impeachment.

Advocate Jamie Ismail SC, for the Democratic Alliance, pleaded for an urgent interdict barring Hlophe from taking part in the JSC’s interview with candidates for vacancies on the bench in October, arguing that otherwise these appointments would be tainted. 

The DA and Corruption Watch, the third applicant, in Part B of their applications ask for the same relief as FUL, namely that his appointment be set aside and the matter referred back to parliament to be decided afresh. 

Advocate Dali Mpofu SC, for the MK party, had objected strenuously to all three applications being heard simultaneously. He said it was “absurd” that FUL’s application be heard before those for interim relief.

In a presentation to the standing committee on public accounts (Scopa) on Wednesday, the Auditor General of South Africa noted that the utility’s net cash inflows for the year from operating activities was R14 billion, compared with R22 billion in the 2023 financial year. 

“This can be improved if an improvement in the operations takes place,” the auditor general commented.

But as matters stand, Transnet is falling well below its target of shifting 200 million to 220 million tonnes of freight a year, at which point — it is estimated — it will begin to make a meaningful contribution to the economy. Its current target is 170 million tonnes a year.

In the past financial year, volumes increased 1.5% to 151 million tonnes, compared with the previous year, and revenue was up 12%, according to results released on Tuesday.

The company posted a loss of R7.3 billion for the financial year, worse than the loss of R5.7 billion for 2023.

But the auditor general’s office told Scopa this improvement in volume was more likely the result of fortuitous factors beyond the company’s control, rather than an early indication that a recovery plan still in its infancy was working. It was only implemented in the last quarter of the year.

“The one percent increase in the volumes noted above was mainly due to the fact that in the prior year, the flood damages negatively affected operations, whereas the event did not occur in the current year, therefore, the impact of the turnaround strategy cannot be ascertained at this point.”

The auditor general noted that the company’s debt of R137 billion imposes interest repayments of R14 billion a year, which leaves it with limited funds to tackle a growing infrastructure maintenance backlog.

“This impacts on Transnet’s ability to fulfil its mandate and poses a risk on going concern.”

The shortage of operating cash has forced the company to refinance loan and bond maturities. But the auditor general warned that borrowing more money and restructuring existing debt could not resolve the utility’s funding problems, saying only greater operational efficiency could.

“This funding model is unsustainable, particularly if there is no immediate and significant

improvement in operational performance to enable Transnet to generate sufficient internal cash flows to service its debt without resorting to further borrowing,” the auditor general warned.

“This is a cause for concern because if the guarantee facility is exhausted and Transnet is unable to secure funding for refinancing, it might default on its debt repayments. Such a default could have severe consequences.”

Transnet, one of the state-owned entities bled dry by years of state capture compounded by theft and vandalism of infrastructure, last week signed a R5 billion loan with the New Development Bank, the multilateral development bank established by the Brics nations, to support the modernisation of the freight logistics sector.

But the auditor general cautioned that Transnet’s liabilities exceeded its assets by R61 billion, which suggests that it may not be able to pay its short-term debts as they become due and payable.

The picture was complicated further by the fact that the logistics group failed to meet loan covenants on cash interest in the past financial year. It subsequently obtained waivers from lenders but should it fail to meet the conditions of these waivers, faced an increased risk of a cross default if lenders called on their debt.

Lenders may also simply become wary of granting the company further reprieves or impose firmer conditions, the auditor-general cautioned.

“Furthermore, the lenders have been providing the waivers for an extended period of time and there is an increased risk that they will call on their debt or impose stricter conditions should the current position not improve.”

The company is due to hold discussions with Standard Bank, the China Development Bank and Deutsche Bank, among others, on revising loan conditions.

Onerous loan obligations limited spending on infrastructure maintenance, which came to just under R3.5 billion in 2024.

The auditor general noted that this made for a maintenance backlog of R6.05 billion compared to the planned required maintenance of R10.5 billion and “a cumulative backlog maintenance of R26.5 billion” that arose as a result of funding constraints, as well as theft and vandalism.

Transnet’s management has communicated that it has put in place plans to address this backlog from 2030.

The auditor general called on the management team to improve planning and make sure better feasibility  studies are performed given that the company lost R165 million in the last three financial years as a result of projects being scrapped.

“There is inefficient use of economic resources as the entity did not derive any value from the costs incurred. There is a need for management to enhance their planning and  feasibility studies to ensure economic use of resources for achievement of mandate.”

Finally, the auditor general found that the internal financial control environment at Transnet had not improved in recent years because management had failed to prevent or detect material misstatements in the material submitted. 

Adverse audit findings were recurring, which showed that management’s audit action plan was not working. 

“There is reliance on the audit process to produce credible financial statements and this is not sustainable,” the auditor general concluded.