The first day of the highly anticipated judicial commission of inquiry into state capture was encumbered by questions of procedure and requests by legal counsel to be better accommodated.
The commission — headed by Deputy Chief Justice Raymond Zondo — was established to inquire, investigate and make recommendations into any and all allegations of state capture, corruption and fraud in the public sector.
In March, Zondo announced the members of the commission, which include Dr Khotso De Wee, Vincent Maleka SC, Terence Nombembe, Leah Gcabashe SC, Paul Pretorius SC and Thandi Norman.
De Wee was appointed as the secretary of the commission, Nombembe as head of investigations and Pretorius as the head of the legal team. Pretorius is joined by Gcabashe, Norman and Maleka in his team.
It was expected that on Monday the commission would hear testimony from former finance deputy minister Mcebisi Jonas and ANC MP Vytjie Mentor, both of whom allege that the politically connected Gupta family offered them positions in former president Jacob Zuma’s Cabinet. Instead, the first day was dedicated to explaining the scope of the inquiry.
The day began with opening statements from Zondo and Pretorius.
In his opening address Zondo noted certain procedural challenges faced by commission. He pointed out that the commission depends on the co-operation of government departments for a variety of things and has encountered challenges in this regard.
In particular, there has been little progress made by the state security department to fast-track security clearance, Zondo said.
Zondo also raised the issue of public participation in the inquiry. Though the public was invited to come forward with any information relevant to the inquiry, this call has yielded disappointing results, he said.
The commission’s legal team opened its address with Pretorius saying: “It is self-evident that the very essence of the 1996 Constitution was to bring to an end a political system that had indeed been ‘captured’ by a government acting in the interests of a privileged minority at the expense of a disempowered, marginalised and impoverished majority.”
Pretorius proceeded to outline the team’s terms of reference for the commission.
Broadly these terms of reference attend to the dismissals and appointments of members of the national executive and other office bearers, the procurement of tenders from state-owned entities to certain individuals or businesses, the appointment of advisers in the finance ministry and whether or not members of the national executive improperly intervened in the operations of Gupta-owned businesses.
Pretorius explained that the team is tasked with investigating whether or not there has been deliberate efforts to undermine the power of state institutions to benefit certain individuals.
Proceedings were delayed by a request from the legal representatives of individuals implicated in state capture allegations regarding the notice given to them by the commission.
Mike Hellens SC appeared on behalf of Gupta patriarch Ajay, regarding the testimonies of Mentor and former head of Government Communication and Information Systems Themba Maseko. Maseko alleges he received a phone call from Zuma in 2010, asking him to aid the Gupta brothers with placing government advertisements in the formerly Gupta-owned newspaper, The New Age.
Hellens said the mechanics of the commission were not known to counsel and that they were given relatively short notice regarding the dates of witness testimonies.
He asked for “practical arrangements” to be made to allow legal representatives to prepare their cross examinations of the witnesses. Hellens said they would be ready to cross examine the witnesses by the first week of September.
But, Hellens said the request for these accommodations were not made in an effort to delay the inquiry.
For the most part, the other legal representatives appearing present on Monday — including Dawie Joubert SC, also for Ajay Gupta, Jaap Cilliers SC for arms deal adviser Fana Hlongwane, Muzi Sikhakhane SC for Zuma and lawyer Welcome Lisenga for Lynne Brown — echoed Hellens’s requests.
Lisenga said that though his client may well be implicated in the course of the inquiry, the former minister of public enterprises had received no notice from the commission. He requested to be included in any further correspondence.
Maleka explained that legal counsel would have to make applications to the commission in order to be allowed to cross examine witnesses, to which Zondo added that no such applications have been made as yet.
After an adjournment to discuss the issues raised by legal counsel, the legal team resolved that transcripts of testimonies will be given to the counsel of the accused if witnesses testify in their absence.
But Hellens reiterated that if it would cause no major disruption to the programme, they would like to be given the opportunity to attend witness testimonies. The commission would need to conform to their various schedules to do so.
Zondo however, emphasised that proceedings would not be interrupted.