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An inquiry into state capture is good but criminal trials must not be impeded

Justice Raymond Zondo has earned a reputation as a most diligent, careful, experienced and thoughtful jurist. It was not surprising when he was elevated to the position of deputy chief justice. There are thus good reasons why his appointment to head the commission of inquiry into state capture by President Jacob Zuma through the recommendation of Chief Justice Mogoeng Mogoeng is to be welcomed.

The serious and persistent allegations that the South African state and its key institutions have been captured by the Guptas — and, if Jacques Pauw’s book, The President’s Keepers, is correct, some other families — urgently required the appointment of a legal heavyweight to head a credible inquiry. Hence, to have the deputy chief justice at the helm is a major step towards the reconstitution of a state that works for its 55-million people.

The move was vintage Zuma. The Garry Kasparov of the domestic political scene makes a decisive and unexpected move when his king is under severe threat on the political chessboard. Zuma had resisted the recommendations of Thuli Madonsela, the previous public protector, for more than a year and sought to have her report set aside on the grounds that he alone as president could appoint a judicial commission of inquiry. Madonsela had recommended that the chief justice make the appointment of the judge to head the inquiry given the compromised position of the president at the centre of her findings.

A year goes by before, as is now the legal norm, Zuma comes second in litigation, this time concerning the public protector’s report. The high court in Pretoria understandably ran out of patience with Zuma’s legal strategy and ordered him to personally pay the legal costs incurred by the parties who were successful in having the court uphold Madonsela’s recommendation that the chief justice appoint the head of the commission.

In line with the Zuma playbook, he appealed this order and the adverse costs order. But political change caused an alteration of strategy — suddenly he appointed the judge whom the chief justice nominated before the appeal could be heard. In substance, Zuma complied with the public protector’s report, which raises the question as to whether his decision evinces unequivocal conduct that clearly and unconditionally is accepting of the judgment; hence the end of the appeal.

But even if this doctrine of pre-emption does not apply, namely that the president accepted publicly that there was an urgent need to ensure the commission began its work, his decision now to appoint a head of the commission is surely going to make it even more difficult for him to appeal the cost order should he lose on the merits before the Constitutional Court.

So why throw in the towel and appoint a commission now? An astute chess player would know that the political context has changed —±a new chief is now in town and a move is required.

But there is a much more important line of inquiry to explore. Zondo will be an excellent chairperson of the state capture commission but he must operate within the context of a commission of inquiry, which is a creature of its terms of reference. The pawns — the present public protector, Busisiwe Mkhwebane and Zuma — are desperately keen to extend the commission’s terms of reference to include the widest definition of state capture, no doubt going back to before 1994.

To understand the relationship between business and government is a vital inquiry as Hennie van Vuuren’s book, Apartheid Guns and Money: A Tale of Profit, and his further research has shown concerning the apartheid past. But, as important as that inquiry is, the pressing need is to find out if, why and how key state institutions — from the National Prosecuting Authority and the Hawks to the Cabinet and parastatal organisations — might have been captured by one or a few families, which, in turn, is subversive of any meaningful attempt to transform the lives of millions in this country.

It stands to reason that Zuma and his supporters will wish the commission to take years, to try to avoid any political and legal consequences they may face, and so an extended set of terms of reference for the commission will do the trick.

Second, the question arises as to what will happen to possible prosecutions that should take place once a national director of public prosecutions is appointed to replace Shaun Abrahams. The argument could be: wait till the commission completes its work before prosecutions can be launched. This would mean a delay of possibly years, during which alleged criminals could escape justice.

It is possible that Zuma realised that even with a distinguished judge, a commission of inquiry rarely produces comprehensive justice or disclosure of critical events in the public interest. Think no further than the Marikana commission or the way the country learnt more about the barbarity of apartheid from the Eugene de Kock trial than the Truth and Reconciliation Commission.

There is compelling evidence that what is needed is the appointment of a competent and independent national director of public prosecutions after which he or she should be allowed to apply the law without fear or favour. As excellent as this commission will doubtless be, nothing generates more sunlight than a few well-run criminal trials. That must be the demand of all who wish to reboot our constitutional democracy.

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