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Khaya Sithole: Can Zondo deliver the goods in time?

Long after Macbeth’s ambition had driven him to a killing spree abetted by the equally ambitious Lady Macbeth, he pauses in pensive reflection and says, “I am in blood / Stepped in so far that, should I wade no more/ Returning were as tedious as go o’er.”

Whereas Raymond Zondo suffers none of the murderous tendencies of Shakespeare’s tragic hero, his handling of the state capture commission evokes similar reflections. 

Last week — as expected — Zondo sought yet another extension for the commission to complete its work, primarily due to the loss of time in 2020, when the commission suspended its hearings during the hard lockdowns, creating a backlog.

Once hearings resumed in a hybrid format including physical and virtual participation, the parade of the accused, the condemned and the implicated resumed. Some testimonies left the nation aghast, bringing to light dealings at state entities that left them operationally compromised and financially paralysed. 

The impact of the evidence presented so far is limited by low completion rates across the different workstreams. In the critical ones such as Eskom, Transnet and Denel, the testimonies are so fragmented and laden with interruptions that it is simply impossible to know where in the life cycle of the workstream the commission is. 

Glaring examples of this include the Eskom marathon where, after multiple appearances by Matshela Koko, it is still unclear what the commission seeks to extract out of his conscience. The recurring theme of whether he was the facilitator of the infamous Melrose Arch meetings involving Salim Essa is subject to irreconcilable recollections of the story. Strangely enough, the dealbreaker seems to be phone records that might shed light on the movements and locations of the players during that disputed day in September 2015. In spite of the obvious importance of the phone records and requests by Koko himself, such records have yet to emerge.

Critical players in the Eskom and Transnet story — Brian Molefe and Anoj Singh — have yet to have their moment in the spotlight. 

More than two years after it started, the commission bungled Singh’s summons process. 

Seven weeks away

In the case of Molefe, a man whose entanglement with the Gupta family formed a central part of the State of Capture report that gave life to the commission, his single appearance was interrupted by the chair’s need to self-isolate, creating a delay that left us none the wiser about what happened during the Molefe times at Transnet and Eskom. 

We stand seven weeks away from the end of it all and key individuals who have been implicated in the Eskom, Transnet, McKinsey and Trillian workstreams have yet to place their version on record. Meanwhile, costs accumulate and prosecutions remain elusive. 

Towards the end of 2020, the justice ministry indicated the costs had already topped R800-million. The work since then, and the extension requested now, will ensure that the final bill exceeds R1-billion.

Some have questioned the wisdom of spending so much money on a process whose findings can still be ignored by the government of the day, though the recent recoveries from McKinsey, which committed to pay back amounts siphoned from Transnet, indicate that perhaps there is a financial benefit associated with the commission’s work. 

In fact, repayments could still materialise even in the absence of a commission dragging the corrupt companies to its hearings. Long before the Transnet settlement — which was actually rejected by Transnet itself — Eskom had managed to get McKinsey and Deloitte to pay it back monies extracted during the height of the state capture age. The South African Revenue Service has secured repayments from KPMG and Bain. This is made possible, not by the commission, but by the entities remembering their fiduciary duties and asking what they paid for and whether it was worth it.

When it was initially set up, the commission was supposed to complete its work in just 180 days. Anyone with a passing understanding of the terms of reference could have known that was impossible. 

That on its own did not render the process stillborn. Rather, an approach that sought to identify key events and entities to be interrogated would have added some structure and fluidity to the proceedings. 

Unfortunately, far too many moving parts existed from the start and rather than gravitating towards consistency and a structured approach, they diverged and overlapped, resulting in administrative chaos. The role of legal practitioners in the proceedings should be examined. In the absence of consistently and readily available legal representation, each  witness testimony has to be structured around the calendars of the witness, their legal representatives, the commission’s evidence leaders and the chairperson’s own schedule.

Zondo’s reliance on the availability, benevolence and cooperation of the condemned has resulted in far too many administrative lapses and postponements. Some of the reasons for postponement requests have bordered on the absurd. 

A key Eskom director has yet to take the stand because his attorney was on holiday. A witness whose role at the Passenger Rail Agency of South Africa is complicated by the fact that she’s a sitting judge has yet to be fully interrogated as her car may or may not have had an accident, her work schedule may have interfered (though Justice Zondo had the assurance of a judge president that the witness would be freed to partake in the commission), and she dramatically dismissed her own attorney during her testimony. 

The sum is that — his best intentions notwithstanding — Zondo is not in a position to produce a report that would bear scrutiny. And for as long as far too many disputed versions of events and recollections have yet to be reconciled, the commission needs to stretch itself to tie up the loose ends. 

In recent times, as the current court-mandated deadline loomed, the commission has adopted more flexibility. To get the most out of Yakhe Kwinana’s extraordinary aviation-related testimony, a weekend sitting was scheduled. And instead of structuring daily proceedings around one stream that may last only a few hours, the commission now addresses multiple workstreams and operates beyond traditional hours.

Although this indicates Zondo may have learnt from the folly of his prior practices, it should not be a license to an extension and more public resources. Rather, if there is to be an extension, the commission needs to make a clear commitment to complete the job — and figure out exactly what the job is at this stage. 

No commission can interrogate every single transaction or disputed judgment calls made at various state entities over a decade. That’s an impossible standard of public ventilation that no one ever expected from this process. Attempting it — as Zondo has done by calling on members of the public to submit whatever they have to his commission — indicates an ambitious foray into the impossible, reminiscent of Macbeth’s pursuit of the Scottish crown.

Zondo’s learnings have yet to result in an overhaul of the commission’s practices. In January, the commission hosted hearings relating to the State Security Agency that lasted for a week. The expectation that this would be followed up by hearing those implicated was extinguished when the next week, the focus shifted to parliamentary oversight, with no indication on when the state security stream would resume. 

As frustrating as this all is for the country, the most undesirable outcome would be to abandon it all now. No report of substance could then be generated, and the money spent on the commission would amount to the type of wasteful expenditure the commission ironically seeks to unpack. The only difference with the annual horror show reported by the auditor general would be that it happened in public view. 

The problem with Zondo’s request of three more months is not that it will cost us more money, but that it is too little time. 

Given the track record of administrative hiccups and the practice of multiparty consensus on scheduling, a 90-day extension is unrealistic and escalates the risk of challenges to the report. 

But for as long as Zondo is unable to provide an actual calendar of what he seeks to achieve and avoids administrative lapses and the granting of frivolous extensions, we are none the wiser on what it will take to complete the mission. Until then, not another cent should be spent on an extension because the accountability he seeks to extract from witnesses must also be demanded from him.

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Khaya Sithole
Khaya Sithole is a chartered accountant, academic and activist who writes regularly for the Mail & Guardian and discusses the issues raised in his columns on his Kaya FM show, On The Agenda, every Monday from 8pm to 9pm

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