Deputy Chief Justice Raymond Zondo has applied to court to extend the term of the state capture inquiry, saying if he does not get an extension it would “render useless” the work of the commission so far.
He has also said he is likely to narrow the scope of the commission’s work — to the original parameters set by former public protector Thuli Madonsela in her State of Capture report — and refer the rest to other investigative bodies.
The commission is meant to end its work in February, but he has asked the court to move the deadline to December.
In his application, filed late last month, Zondo set out in detail how broad his terms of reference are: the commission has been mandated to investigate unlawful, improper or unethical awards of tenders (not just to the Guptas, but to anyone) in every national, provincial and municipal department and at every state-owned enterprise.
“The difficulty is simply that the width of terms of reference of the commission is such that the commission would have to go for about five if not six years in order to investigate every matter that falls within its mandate as reflected in its terms of reference as they presently stand,” he said.
There are as many as 30 state-owned enterprises, along with 29 national departments, 90 or so provincial departments and 200 municipal departments.
The commission has also been investigating law enforcement agencies such as the Hawks, the National Prosecuting Authority, Crime Intelligence and the Special Investigating Unit.
In its 15 months so far, the commission has looked into eight out of 28 national departments, three or four provincial departments and zero municipal departments, said Zondo.
“Logically,” if the commission took 15 months or so to conduct investigations that it has conducted so far,”
it would need “probably not less than four years to complete its mandate in terms of its terms of reference.”
But Zondo did not ask for a four-year extension. Instead, he differentiated between the parameters of Madonsela’s State of Capture report and those of the president’s terms of reference. To fulfil Madonsela’s mandate, a further 10 months would probably be sufficient, he said.
“I believe the way forward for the commission is to … complete all its work relating to the issues listed in the public protector’s report and any other issues that may fall outside that list but within the commission’s terms of reference that I consider appropriate to be dealt with by the commission.”
On the rest, Zondo said he would either ask President Cyril Ramaphosa to amend the terms of reference or he would use paragraph 7 of the terms of reference to refer further matters to another law enforcement agency or to become the subject of another inquiry.
This would not mean that these issues would not be investigated, said Zondo. “It will only mean that they will be investigated by another forum.”
Zondo’s commission has been criticised for lacking focus and for spending too much time on interlocutory applications. But justifying the extension, Zondo said the commission has sat on 74% of the business days since it started, even working late into the evenings and on some Saturdays.
Even with a narrower scope, much remains to be done, said Zondo. There is “phase II” of the evidence relating to Eskom, Transnet, Denel, SAA, SA Express and the SABC. The commission has not heard any evidence in relation to The Passenger Rail Agency of South Africa, said Zondo, and still needs to hear at least 10 witnesses about Prasa. There are 15 witnesses to hear in relation to the Free State province.
In his affidavit Zondo said his approach to court was urgent. “If the relief sought is not granted by the end of February 2020, this will mean that the objectives underlying the commission and its work will be rendered nugatory.”
Why we care about a commission’s terms of reference
Judicial commissions of inquiry are not courts of law. The job of a commission is to assist the president in guiding policy, uncovering
facts or identifying steps that should be taken on a specific issue. In that sense, the work of a commission is, by its nature, always preliminary.
A commission’s terms of reference are important in that they set the outside parameters of what a commission may investigate. Terms of reference are therefore often scrutinised to see if they will hamper a commission’s ability to get to the bottom of something. If they are too narrow, they might result in a whitewash.
But what if they are too broad? Former president Jacob Zuma’s litigation record — or his “Stalingrad strategy” — has led to some disquiet in this regard. He was previously accused of parking two political hot potatoes — the arms deal and the Marikana massacre — by establishing judicial commissions with broad terms of reference, which would be underway for years.
The Marikana commission — chaired by retired Supreme Court of Appeal justice Ian Farlam — had initially been meant to look into the history and sociological causes of violence in the mining sector in addition to the immediate causes of the massacre. But during the course of the inquiry, its focus was narrowed to the immediate causes of the massacre and the killings in the weeks leading up to it and subsequent to it. Even then it took more than two years. The arms deal commission — chaired by Supreme Court of Appeal justice Willie Seriti — was different. It did not narrow its scope, but instead purported to cover the whole ground. However, its report was subsequently set aside by a court. The reasons for that decision included that the commission made findings on things it did not properly investigate, including ignoring and excluding crucial evidence.
Geoff Budlender SC — the senior evidence leader at the Marikana inquiry — said that broad terms of reference are better, because they give a commission the flexibility to follow leads that are uncovered as it progresses. If the terms of reference are very broad, as they are in the Zondo inquiry into state capture, it may conclude that it should focus the time and resources available to it on what it has found to be the major issues, and report accordingly.
Budlender said the Zondo commission was established to look into state capture and this could be done without drilling down to every instance. “You can identify the phenomenon, you can explain how it worked, you can give examples of what happened and you can identify what steps need to be taken — either remedial steps or steps to prevent it happening in the future — without investigating every single thing that falls within the scope of that phenomenon.”