What the Ngcobo report meant for the Zondo report

NEWS ANALYSIS

Last Christmas, the Zondo report was still a work in progress and there was some suspense as to which senior leaders in the governing party would be implicated in state capture.

A year later, we know the answer matters less still than a reasonable, well-informed person may have feared at the time of reading volume one and the rest.

ANC branches’ nominations for the party’s 2022 national conference indicated their indifference to Chief Justice Raymond Zondo’s findings and the Ngcobo report on the Phala Phala scandal has further shrunk Cyril Ramaphosa’s political space to implement those.

“Branches have not taken cognisance of the Zondo commission report,” a prominent member of the president’s renewal camp said ahead of the conference. “Characters who have been at the centre of state capture now somehow see themselves being afforded another opportunity to be in the governing party’s highest decision-making body. 

“It speaks to some deep-seated culture within the ANC to consider personalities but not the track record of those personalities. Branches are not able to properly evaluate their leaders and that is quite demonstrable in the people who have been nominated again to be NEC members … it is mind-numbing.”

Zondo commented wearily that one might have hoped that the ANC would set the bar for those to whom it hands power “higher than not having been convicted in a court of law”.

He deplored the extent to which ANC MPs heeded orders from Luthuli House instead of following their conscience and oath to hold the executive to account, writing that state capture could have been halted had they located their courage. 

That he would reach this conclusion was clear early last year when the commission heard the testimony of former ANC MP Makhosi Khoza. 

She was fired as the chairperson of parliament’s portfolio committee on public service and administration by then ANC chief whip Jackson Mthembu, on the instructions of then ANC secretary general Gwede Mantashe. This was after she defied an instruction by supporting an opposition motion of no confidence in president Jacob Zuma in 2017.

Five years later, the script remains the same. The national executive committee (NEC) resolved ahead of the parliamentary debate on the report of the panel chaired by former chief justice Sandile Ngcobo that ruling party MPs must reject its recommendation that Ramaphosa face an impeachment inquiry.

As with past votes on sanctioning a president, the speaker rejected opposition calls for a secret ballot, and Mantashe again unabashedly assumed the role of martinet. 

Political analyst Ebrahim Fakir said: “He’s playing a game, he’s the ANC enforcer. It is still the 1950s, there is a commissar who has to keep everyone in line, and the ANC has to be united. It is democratic centralism at its crudest.”

Mantashe’s determination to avert the adoption of the Ncgobo report was also survivalism, driven by the recommendation in the Zondo report that he face criminal investigation for accepting free security installations from Bosasa for his private homes. 

Zondo found there was a reasonable suspicion that Mantashe knew he was expected to exert influence in Bosasa’s favour, although no proof he did so. Section 24(1) of the Prevention and Combating of Corrupt Activities Act creates the presumption that a gratification was received to achieve a quid pro quo, or a corrupt aim, if it came from somebody who sought a contract, could be applied to Mantashe to justify an investigation or prosecution, he wrote. 

When Ramaphosa reshuffles his cabinet in the new year after retaining the ANC presidency last weekend, he will remember the political debt he owes Mantashe. Andre de Ruyter’s exit as Eskom’s chief executive was the first down payment, but that is another story.

“He will stay in the cabinet,” Fakir said.

He faulted the ANC’s electoral committee for allowing those with adverse findings against them in the Zondo report from contesting for positions in party structures. The commission drew the line at those who have been criminally charged.

It cleared the path for disgraced former water affairs minister Nomvula Mokonyane to become the new deputy secretary general of the party. The Zondo commission found her denial that she received a R50 000 monthly retainer from Bosasa falls to be rejected and recommended that she face prosecution.

“Mokonyane has not yet been charged, nor have a bunch of others, that is their only saving grace,” Fakir said, adding that it would have been wise of the electoral committee to “persuade people who were fingered in the Zondo commission report not to avail themselves. This is the perennial story of the ANC’s inconsistency in the application of its own ethics.”

What happens to Mokonyane may not simply be a function of whether Ramaphosa pursues the anti-corruption drive he has promised but not been able to deliver. She might survive if she chooses not to be a nuisance.

“It is a question of realpolitik. Why has the NPA [National Prosecuting Authority] or anybody else not concluded an investigation into Phala Phala, for example? There is an excessive amount of executive-mindedness even among the independent institutions of the state,” Fakir said.

“Because he is the incumbent there will be weird delays and other things precluding any investigations on any of the things because they are so executive-minded and deferential to people in power. It is easy to deal with these other ones like Bathabile Dlamini and Tony Yengeni, because they are dispensable,” he said. “Mokonyane is not yet dispensable.”

The recommendations that may become reality — and on this sources in the president’s camp and cynical observers agree — are those that qualify as low-hanging fruit because they carry relatively low political risk.

One of the undertakings Ramaphosa gave in late October when he set out an implementation plan on the Zondo report, was to make the Investigating Directorate, which was established to prosecute state capture cases, a permanent entity. 

The president also promised to bolster the NPA. A few days later, Finance Minister Enoch Godongwana said the February budget would see an additional R8.9 billion allocated to safety and security, a share of which will go towards the prosecuting service. The Asset Forfeiture Unit and Special Investigating Unit (SIU) will be among the beneficiaries, in keeping with the commission’s call to recover as much public money that was lost to state capture as possible.

But this endeavour will, like criminal prosecutions, often be slow work, sometimes through no fault of the NPA. At the time of writing, the wait for Emirati authorities to set a court date to hear the extradition application for Atul and Rajesh Gupta continued and it seemed unlikely they would join the other accused in the Nulane Investments fraud case when the trial gets underway in January.

The NPA has secured freezing orders worth more than R1 billion in the Regiments Capital and the Optimum Coal Mine sagas, but forfeiture only follows once there is a conviction. The entity has met barely 10% of its annual target and at present, the Criminal Assets Recovery Account stands at R8.96 million.

The SIU has moved at speed to recover money that flowed to Bain & Co and German software firm SAP, which has been ordered to refund close to half a billion rand. It is also investigating the misappropriation of Denel’s intellectual property to companies in Dubai and Saudi Arabia when Gupta associates crippled the state-owned arms maker.

The unit’s recoveries flow from civil orders handed down by the special tribunal, which faces an existential threat. The constitutional court has reserved judgment on an application by Ledla Construction, a Gauteng company that made R38 million in the province’s Covid-19 personal protective equipment scandal. 

Should the court accept the argument that the tribunal does not have the standing of a court because it derived its power not from the Constitution but from a presidential proclamation, the SIU’s recovery drive could come to a halt and past gains be reversed. 

The president’s commitment to set up a permanent anti-corruption institution will see proposals put out for public consultation. It hints at a long process, where old debates and the outcome of court challenges on the legal framework for such an entity may be revived. 

There are timelines for a bill to codify appointments to the boards of state-owned entities in line with the recommendation in the report that these be future-proofed against political manipulation. It is expected to reach parliament in March. So is a bill on public procurement that will require the treasury to rework the fine print on regulations and close the gaps the Guptas exploited.

Other legislative reforms that speak to the report were promised in more vague terms. Among them are amendments to the Protected Disclosures Act to address the plight of whistleblowers, an overhaul of the architecture of the intelligence services and an amendment to the Political Party Funding Act to criminalise donation made in an attempt to influence procurement. 

The latter should be read alongside calls by the ANC’s national working committee to raise the cap on donations a single person can make to a party from R15 million to R50 million. 

In a nod to Zondo’s findings on the role of parliament in state capture, Ramaphosa suggested the deputy president would, as head of government business, liaise more closely with the speaker, without undermining the independence of the legislature, to facilitate oversight of the executive.

It seems quaint given the time-tested way in which he survived the report on Farmgate.

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