Uncovering the rot: Merely being able to watch Acting Chief Justice Raymond Zondo do his commission’s work live on TV has already affected how South Africans demand accountability, experts say. (Felix Dlangamandla/Gallo Images/Netwerk24)
There will be no further delay. At the beginning of January, Acting Chief Justice Raymond Zondo will deliver the final report of the eponymous commission on state capture that made for three years of depressing but grimly satisfying documentary viewing.
What we suspected was not only true, but infinitely worse than we thought.
Three things are certain. First, there will be recommendations, probably encyclopaedic in volume, for the criminal justice system to turn its attention to certain people because the commission’s evidence leaders and investigators established a prima facie case against them.
Second, there will be many attempts by the people so cited to take the report on legal review and avert, or at least stall, attempts to prosecute them.
“There is going to be a cottage industry of review cases. They will lose, they will appeal and eventually they will throw themselves at the mercy of the constitutional court,” advocate Paul Hoffman of Accountability Now said during the first week of December.
Third, there will be recommendations from Zondo as to how to improve the criminal justice system that has to deal with the work he has passed its way, and probably some more on bettering not only the political system but the ailing ruling party that dominates it.
Zondo has a reputation on the bench as a judge who has seldom encountered an undeserving case and has brought this readiness to look for a remedy to the commission, which helps to explain why its lifespan has been extended five times.
In February, while hearing testimony from former rebel ANC MP Makhosi Khoza, Zondo mused that the cost of state capture might have been lower — at last count R57-billion went to the Gupta empire — if MPs were beholden to voters rather than their party.
“I guess the one thing that would be clear is that if the ruling party was really intolerant of corruption and wanted proper oversight to be performed … parliament could have stopped a lot of things that have happened that are wrong,” he said.
In April, when President Cyril Ramaphosa testified, Zondo asked whether, at the present rate, the ANC could hope to redeem itself and act effectively on corruption.
“It can’t do so, it seems to me … by looking at those things that are comfortable for it to change,” he opined.
All those watching became accustomed to Zondo asking, like a refrain, when hearing of a particularly gross excess, not only “but how can it be?” but also how it could be prevented from being repeated.
He put a leading question to Khoza: Did she have any thoughts as to how MPs could be protected to perform their oversight duty as the Constitution intended even if this put them at odds with the party that brought them to parliament?
She said the answer was simple. The country needed to replace proportional with direct representation.
“It seems to me, based on his attitude and the stance he took in the hearings itself, that Zondo would be relatively bold and far-reaching, I think, in his recommendation on the system, the macro-causes of state capture,” academic and analyst Richard Calland said.
“So whether it is on reform to parliament, to the rules relating to parliament’s oversight to the executive or on the electoral system or on separating church and state — so to speak — [or on] cadre deployment. On all of these things I expect him to offer clear and firm recommendations.”
This is more or less where certainty ends: “As to whether the government and the president will act on them is a completely different thing and I think what is important is first of all that the report is thorough, as it will be, I’m sure, that it is clear in its recommendations. That in itself will put pressure on the president to act, and then it is the job of society, and parliament, to hold the government to account with regard to this report.”
Ramaphosa in February reaffirmed plans to establish a national anti-corruption advisory council that will have two years to revert to him with a proposal for an overarching, permanent graft-fighting entity. The idea is to create an autonomous body, insulated against interference in line with constitutional case law around the standing and independence of the units such as the now-disbanded Scorpions and the Hawks.
But the invitation for nominations to the council went out only in late November. Hoffman said this confirmed that any decision on incisive reform of the criminal justice system has been kicked down the road until 2024.
It leaves the National Prosecuting Authority (NPA) to deal with a flood of work Zondo’s final report will assign to it and face the public clamour for those implicated to go to prison.
On 6 December, the national director of public prosecutions, Shamila Batohi, tried to temper expectations, and conceded that since it was set up in May 2019 to prosecute state capture cases the Investigating Directorate (ID) had not secured a single conviction.
National director of public prosecutions Shamila Batohi expects an ‘avalanche of work’ after Zondo’s report is submitted. (Photo by Gallo Images / Netwerk24 / Felix Dlangamandla)
“Moving forward there is going to be an avalanche of work coming from the Zondo commission as well, so we really need to enhance that ability to be very strategic and focused in terms of what we select,” Batohi said.
“I think perhaps one of the biggest shortcomings is trying to do too much, you know, without all of the resources that we need.”
It may or may not have been a subtle criticism of the ID head, Hermione Cronje, who resigned less than a month before the report is due, but Batohi was blunt in her assessment that the Hawks lacked the ability to do the legwork her prosecutors needed to litigate successfully.
The problem must, she said, “be addressed as a matter of extreme urgency”, otherwise cases would not get to court at pace.
Sources in the NPA say the Hawks remain fraught with the political interference of the Zuma era and with Cronje leaving the ID loses someone who would say publicly when she believed her efforts were being sabotaged.
Hoffman said it was unfair to fault the ID for not moving to court faster, despite a presidential proclamation 18 months ago amending regulation 11 of the commission to grant her team access to the evidence it had and allow it an early start.
“There is a lack of the necessary capacity within the NPA to do it, and there is also a hesitancy to do it, which is understandable, because although the evidence has been given, that evidence is going to be weighed by the evidence leaders.
“They are going to make submissions as to which of the evidence should be accepted and which shouldn’t … so why go rushing off on a wild goose chase on the basis of some evidence that has been given when Zondo is going to turn around and say so-and-so is fantasist.”
“I don’t think they can be criticised fairly for waiting for the commission.”
It must be remembered that in law the report only has the force of recommendations, to be translated into action or not, and with it in hand, Ramaphosa will hesitate between renewal and unity as he heads to ANC’s next fractious elective conference in late 2022.
Zondo’s real gift may not be the limited consequences that flow from his report, but what the public learnt and begun to apply even before it was written.
“Implementation can’t be the failure of a commission, because it is not the work of a commission,” lawyer and writer Elisha Kunene said.
“I think that South Africans are biased to think of truth and reckoning as something which is strictly intangible or therapeutic. It is fair to be disappointed at the absence of consequences for the worst crimes; and it is reasonable to be pessimistic, since the ANC so totally dismantled the criminal justice system that seeing any powerful conspirator behind bars is always fanciful,” he said.
“But inquiries that reveal information, even by requiring implicated persons to lie, have many positive practical consequences in a healthy democratic system.
“What the Zondo commission has done is help all of South Africa to better understand the systemic failures that have plagued democratic South Africa. State capture has not only been difficult to prosecute, for a long time it was difficult to comprehend … it is almost impossible to reckon with the scale of the corruption and criminality that governs this country.”
Kunene added there was consensus that the Truth and Reconciliation Commission failed because too few villains landed behind bars, and the Zondo commission risked the same assessment if success was measured in prison sentences.
“It being live on TV and broadcast by multiple channels for this long period of time has exposed this information to a greater audience than before. This may already be having an impact at the polls, strengthening democratic accountability,” he said. “A focus on criminal prosecutions is too narrow.”
Scores of people implicated in state capture have been forced to commit to a certain account of events, on record, whereas they may have escaped scrutiny otherwise. Many institutions have been forced to institute reforms to rein in the rot and, crucially, he said, the glare of the commission has exposed the role of the private sector in corrupt activities.
“This doesn’t just mean there are fewer McKinsey and KPMG employees on Joburg Tinder: the rubber stamp of private hired guns is no longer a free pass to facilitate public corruption, and ‘consultancy’ as a line item in a budget is easier to interrogate.
“When we are armed with evidence of impropriety we have long suspected, the media and all of civil society are better equipped to demand, lobby and litigate for accountability and reform from institutions like the South African Revenue Service, the State Security Agency and, hopefully, one day, even parastatals,” Kunene said.
Calland called this “a crucial moment” and cautioned that South Africans had a history of letting go of big moments too lightly.
“It is a crucial moment. South Africa has a tendency to move on fast from things and it is essential that the learning, the lessons of the state capture disaster, are properly understood and properly digested, and the Zondo report is the moment for that to happen,” he said.
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