Eusebius McKaiser calls on Advocate Thuli Madonsela to release her interim report on the state capture probe before the matter goes to court.
Advocate Thuli Madonsela should release the interim report into state capture today or tomorrow. There is genuine and overriding public interest.
But the issues are tricky, legally and institutionally. Firstly there's no actual interdict in place right now. There's simply a notice of intention on the part of president Zuma to apply for an urgent interdict which will be heard on Tuesday when Adv Madonsela is no longer the public protector. It would be better if it was heard tomorrow (Friday) still.
One possibility is that releasing the report could be constructive contempt of court. That would be undesirable as a matter of good law abiding behaviour on the part of Adv Madonsela. Furthermore, one wants, ideally, an interim report to be engaged with if you're implicated by it before a final report is drawn up and released into the public space so as to avoid legal (and non-legal) prejudice to people mentioned in the report and especially those implicated in unlawful behaviour.
Yet, this idea of legal prejudice surely cuts both ways? What if the motive isn't genuine but a bad faith attempt to stop Adv Madonsela from releasing a document that's in fact accurate but politically inconvenient for Zuma. In that case the application for an urgent interdict is simply an abuse of court process itself.
So there is a lot of murky legal stuff here, and a lot of opaque motives here we can only be speculative about. Given what we know about president Zuma I'm seriously unpersuaded to grant him the benefit of the doubt in terms of motive. He's stalling. And hoping her successor might make it all go away or water down a final version.
This brings me to the final tricky thing here. Institutionally speaking we ideally want offices to be stronger than incumbents. If Adv Madonsela has faith in her team she's leaving behind and faith in her successor then she doesn't need to act as a lone ranger. Unless she has no faith in the skill and integrity of her successor. That would be a first major blow for the reputation of the successor. And frankly it would imply Advocate Madonsela didn't build an INSTITUTION with team members that are stronger than her as an INDIVIDUAL.
But all of this notwithstanding, my view is that on balance, taking account the pros and cons, legally and institutionally, the public interest is far more crucial here for any democrat committed to transparency, than is needless stalling.
Zuma has known since March he's being investigated. It's disingenuous to pretend he has had inadequate time to make submissions. And it's not even clear he is legally entitled to grill other witnesses as he wishes to do. So it would be rather disingenuous to pretend the chronology of facts show procedural haste on Advocate Madonsela's part.
I say release the report. If the court rebukes the public protector for doing so, the horse will have bolted and the legal censure will be phyrric.
The real winner will be The Open Society.
Transparency is the lifeblood of deliberative and participatory democracy. Let's see the report soonest.
* Eusebius McKaiser is the best-selling author of A Bantu In My Bathroom and Could I Vote DA? A Voter’s Dilemma. His new book - Run, Racist, Run: Journeys Into The Heart Of Racism- is now available nationwide, and online through Amazon.
* The views expressed here do not necessarily reflect those of Independent Media.