Chief Justice Raymond Zondo
Should renewed attempts be made at state capture, parliament would still not be able to stop it, Chief Justice Raymond Zondo said on Thursday, a year after he handed over the final sections of his gargantuan report — a petabyte of data — on the wholesale looting of state-owned entities.
The Gupta family and its acolytes had been successful in the state capture project because “parliament did not stop them”, he said during a keynote address at the Human Sciences Research Council (HSRC) colloquium, “and nothing has changed”.
“The majority party refused to agree to the establishment of an inquiry to investigate the allegations. There were a number of instances where there was an opportunity for the majority party in parliament to agree, but it did not, and therefore the Guptas continued with their project, and the transactions that happened afterwards, happened because they were not stopped by parliament,” said Zondo.
In its report, the commission detailed various instances where parliament failed to ensure that attempts at state capture were exposed early.
The ANC has been known to suppress attempts at investigations by legislators that could lead to negative political exposure of its leaders. A recent example is the party using its parliamentary majority to vote against the establishment of an ad-hoc committee to investigate allegations made by former Eskom chief executive Andre de Ruyter of organised corruption at the utility — and the enabling of such — that allegedly involved at least one senior ANC politician.
Instead, the party filed papers to sue De Ruyter for defamation after he said during a televised interview in February that the governing party viewed Eskom as a “feeding trough”, and thus benefitted from corruption at the parastatal.
In December, the majority of the ANCs MPs voted against adoption of the section 89 panel report into the theft and cover-up of thousands of US dollars from President Cyril Ramaphosa’s Phala Phala game farm.
In March, ANC MPs also voted against a motion by the Democratic Alliance to establish a parliamentary committee to investigate the Phala Phala scandal.
Historically, despite credible information and allegations from whistleblowers and documentation such as the Gupta Leaks, calls for investigations have been squashed or brushed off as being political posturing from the opposition benches.
Zondo said that because Jacob Zuma had also been “captured” during his administration, “he used his constitutional and legal powers to make decisions that advanced the business interests of the Guptas”.
He said the evidence brought before the commission revealed a number of instances where Zuma made decisions that benefited the Guptas — such as the removal of certain executives at Eskom and the axing of Themba Maseko, the chief executive of the Government Communication and Information System.
According to the Zondo commission’s report, the firing of Maseko was one of the earliest examples of state capture, and allowed for the Guptas to use taxpayer money to fund their now defunct The New Age newspaper.
“Where a president no longer makes decisions that serve the interests of the people, but makes decisions that serve his own interests, or [those of] his family or his friends, that undermines our democracy,” said Zondo.
But, he cautioned, what demonstrated beyond any doubt that state capture placed democracy at risk was when one dealt with the role of the National Assembly, which was mandated to serve citizens.
“I have said before that if another group of people were to do exactly what the Guptas did to pursue state capture, parliament would still not be able to stop it. That is simply because I have seen nothing that has changed. The question that arises then is, if parliament won’t be able to protect the interests of the people — if there are attempts at another state capture — who will protect the people?”
There were three possible answers to that question, said Zondo. One was electoral reforms that allowed citizens to have more power over MPs.
Another was, as pointed out by the commission in its report, a standing state capture and anti-corruption commission where nothing could be “swept under the carpet”.
“If, through that standing commission, it was established that there was serious state capture and corruption, there would be strong public opinion that might force a [recalcitrant] majority in parliament to actually take action,” he said.
The third answer to who would protect the people, was the people themselves.
“I believe in active citizenry, that the people of South Africa are the ones who must take their destiny in their own hands. They are the ones who must say: ‘we have had state capture, and it is not going to happen again’. They are the ones who must say ‘never, never and never again’.”
Also presenting at the colloquium was advocate Gary Pienaar, the senior research manager at the HSRC, who spoke about the implementation of recommendations from the Zondo report, to date.
He said the “essential mechanism” to facilitate state capture was putting “politically connected people on boards” and in the public administration.
One of the key recommendations was that senior appointments should be conducted independently to “make sure that we have a merit based process and not a party interest based process dominating the decision making and appointments”, said Pienaar.
“Lifestyle audits have started at Eskom and they have started elsewhere too. And psychometric integrity testing is being developed by the department of public service and administration, but there is tension between the governing party and the government over these issues.”
Eskom in 2020 extended its lifestyle audits to include lower level staff, after first subjecting its senior staff to the audits. By November 2021, the audits of 383 senior managers and their partners led to the referral of 34 “high risk cases” to the Special Investigating Unit. The standing committee on public accounts was told at the time that of those cases, 11 were referred to Eskom for disciplinary action, while seven employees resigned. In seven cases, there were no adverse findings.
“In December, the ANC retained cadre deployment as its official policy,” said Pienaar. “However, what has happened since then is that the Public Administration Management Amendment Bill and the Public Service Amendment Bill have landed in parliament. They do address some of these issues.”
He said there was a need for disciplinary action as the issue faced in the public service, particularly with regard to financial misconduct, was a lack of consequences, follow through, delays and endless years on suspension.
“I think the concern really is here about losing patience. I think that’s the sense that I get is there are lots of things that have started, but it doesn’t seem to be a great deal of sense of urgency.”
He said that having the aforementioned bills before parliament was good, but added that the Public Service Commission amendment bill was needed.
“That’s the one that could clean up appointments into the public sector. That’s going to make sure we really do professionalise public service. And that is not in parliament yet.”