Why did the Public Protector initially refuse to give ABSA, one of the parties cited, a copy of the ABSA bailout report, only to relent at the threat of legal action? Why did the Public Protector give a copy of the same report to the Gupta-family funded pressure group, Black First Land First (BLF), without extending the same courtesy to Adv Paul Hoffman, the complainant in the matter, or even the likes of former President Thabo Mbeki, whose name features prominently in the report? Even more disturbing, as the South African Reserve Bank (SARB) charged today in papers filed before the Gauteng High Court of South Africa in Pretoria, the fact that she consulted with both the Presidency and the State Security Agency (SSA) and neglected to include transcripts of the meetings.

The Centre for Constitutional Rights (CFCR) welcomes the decision by the Western Cape High Court, handed down today, which sets aside South Africa’s nuclear agreement with Russia. The successful challenge to the agreement was launched by civic organisations, EarthLife Africa (ELA) and the Southern African Faith Communities’ Environment Institute (SAFCEI), on the basis that the agreement was unlawful and unconstitutional.

The secret nuclear deal would have reportedly cost the nation R1-trillion and the South African public would be none the wiser – but for the diligence of investigative journalists and the non-governmental organisations who approached the courts.

Apart from the exorbitant costs of the deal, which South African taxpayers would have to bear, the deal transgressed the Constitution’s demands that procurement of goods or services must be fair, equitable, transparent and cost-effective. Binding for a minimum of 20 years, the deal would have practically granted South Africa’s decision-making powers on the nuclear industry, over to Russia.

A question has arisen as to whether the Public Protector may legally compel the President to establish a commission of inquiry, seeing as the establishment of commissions of inquiry is, in terms of the Constitution, the sole prerogative of the President.

Various legal authorities have already expressed the opinion that the Public Protector had breached the separation of powers by instructing the President to appoint, within 30 days, a commission of inquiry headed by a judge solely selected by the Chief Justice, who shall provide one name to the President. Should a court come to this conclusion too – then it renders this aspect of the State of Capture Report null and void. The separation of powers doctrine is a vital component of South Africa’s constitutional democracy. The doctrine means that the Constitution demands that courts ensure that all the branches of government act within the confines of the law. Nonetheless, courts must also defer to the exclusive domain of the Executive and Legislative branches of government unless the Constitution so permits the intrusion.

On Wednesday 5 October, the Parliamentary Portfolio Committee on Communications (the Committee) convened a meeting with the beleaguered Board of the South African Broadcasting Corporation (SABC) to allow the latter to brief the former on the state of affairs at the public broadcaster. This was done in light of the recent Supreme Court of Appeal (SCA) judgment concerning its newly appointed Group Executive for Corporate Affairs, Hlaudi Motsoeneng, and the problems that have recently plagued the SABC. It is worth noting that this meeting was conducted during a period of Parliamentary recess, which indicated the gravity of the matter.