August 21, 2020 marks exactly two years since the Commission of Inquiry into State Capture (Zondo Commission), commenced its seating in Parktown, Johannesburg. The Commission having started its work on the same date, in 2018. Two years down the line, the Deputy Chief Justice Raymond Zondo has listened to dozens of witnesses and scoured through thousands of rims of evidence documents. The Commission investigators and evidence leaders have spent countless hours tracking down witnesses and preparing them for appearance. Over 700 witnesses are expected to appear before the Commission by the time it wraps up its work in March 2021. The Commission applied for an extension of its work by a year and this was granted by the High Court, in Pretoria.
In the beginning of July, the Department of Justice and Constitutional Development (DOJ), which has a mandate over the Commission, appeared before the Parliamentary Portfolio Committee on routine oversight reporting. The DOJ informed parliament that the Commission had thus far spent ZAR700m and was requesting for further funding. The question among the parliamentarians and South Africans at large was how was this money being spent, is it worth it considering that no tangible results have come out of it. South Africans have bad experiences with Commissions as these have been used in the past as public relations exercises.
Terms of Reference: a poisoned chalice for Deputy Chief Justice Zondo?
However, the Zondo Commission had initially raised expectations around its potential impact. Perhaps it will be trite to reflect on the origins of the Commission and how it could give a good return to the taxpayers’ investments into it. One of the main issues around the Commission was its terms of reference. And it does seem much of its legacy challenges are around the framing of the Commission’s terms of reference.
The terms of reference of the Commission into State Capture were provided for in the Advocate Madonsela’s State of Capture Report. Advocate Madonsela had provided that the Commission of Inquiry focus on the relationship between the Gupta family and former President Jacob Zuma. Further Advocate Madonsela had instructed that the Commission was to be established within thirty days. Over and above, and considering the narrow scope of the Commission envisaged by Advocate Madonsela, the Commission was expected to conduct its work within a hundred and eighty days. Its findings were to be presented to parliament within fourteen days after the release of the report. Assuming that Parliament would have adopted the report, and controlling for a couple of legal reviews from those implicated, South Africa should by August 2020 be deep into the implementation phase of the Commission’s findings.
Danger of producing a Pyrrhic Report
President Zuma was initially opposed to setting up the Commission. This was to be expected considering that in simplistic terms, the Commission was around probing his outsourcing of his constitutional duties to a private family in exchange for financial rewards. However, when President Zuma finally relented to setting up the Commission of inquiry, he widened the terms of reference. The gazetted terms of reference went beyond just probing the relationship between President Zuma and the Gupta family. This has had the undesired effect that the Zondo Commission will have to sit for a long time and issue a report way out of the time initially envisaged by Adv.Thuli Madonsela. Politically, this could happen when President Ramaphosa is no longer in power and the radical economic transformation-Zuma faction has regained control of the ANC. The report would be ignored and be allowed to gather dust, since it would inevitably implicate major players in the Zuma faction. This means the report would be issued around mid to late 2021.
Interim Reports and Referrals
One of the ways that the Zondo Commission could adopt to avoid producing a billion plus rand worth of academic report is to issue interim reports. The terms of reference of the Zondo Commission provide for such a possibility. They provide that the Commission must refer some of the matters to the National Prosecution Authority (NPA). These are matters in which, on the face of it, there is a clear violation of laws. Referral of such matters to the NPA was aimed at remedying anticipated delays in the completion of the Commission’s work. However, to date, the Commission has not referred any case to the NPA. No reason has been given for the non-referral. Besides referring cases of clear violation to the NPA and other investigative agencies, the Commission could produce interim reports that can then be used to hold those implicated to account. Civil society and the public have decried the non-production of interim reports.
The absence of interim reports and subsequent arrests undermines key politically strategic role in the anti-corruption drive that the Commission was supposed to play. This is because until recently, the Commission report will not have much of a judicial value. Ultimately the efficacy of the report will be at the mercy of the Presidency.
Civic value of the Commission
Besides the recommendations that will be entailed in the final report, the Zondo Commission is intended to apply pressure to various institutions and persons implicated to carry out remedial actions. It is for this reason that the Commission is held in public; while all statements are made under oath, with the right to cross examine for most witnesses. There have already been instances where actions have been taken in institutions and by individuals implicated in the Zondo Commission. For instance, former Finance Minister Nene resigned after it emerged through the Commission Inquiries that the he had visited the Gupta Compound. This testimony had contradicted his earlier version that he had never been to their house.
However, such instances seem to have happened at the beginning of the Commission when the public still had much faith invested in its work. As President Ramaphosa’s standing wanes, so does the Commission stature.
Main State Capture Players emerging from the Commission
To date, the Zondo Commission has heard evidence from representatives of private sector firms, government bureaucrats, leaders of state-owned enterprises, former cabinet ministers and politicians. The testimonies of these individuals paint a web of overlap between players in the various sectors of society working in cahoots to undermine the state’s ability to deliver services. The Gupta family, being at the centre of the controversies relied on both private sector and public sector actors. Since the Commission began in August 2018, there has been testimonies from various state-owned enterprises. Some of the main SOEs that have testified at the Zondo Commission include Denel; PRASA; Transnet; Eskom; SAA among others. The SOEs worked in cahoots with business development services and management consulting firms.
Absence of synergy between the Commission and the Criminal Justice Cluster
Until recently, they had been no connection between the work of the Commission and that of institutions such as the NPA, Hawks, Crime Intelligence, the Specialised Investigative Unit among others. It is a welcome development that President Ramaphosa has gazetted rules to remedy this anomaly. The Commission had hitherto been operating in a vacuum. A close working relationship between the commission and these law enforcement agencies will ensure that the perpetrators of state capture are investigated and prosecuted in real time. The commission would not have to first deliver its final report before the other law enforcement agencies have to act. There is a possibility that a lot of evidence is being destroyed as the commission testimonies unfold.
The Commission as a strategic tool for State and ANC reform
While the Commission has been crafted in judicial terms and is expected to produce a legal document, it is the non-legalistic aspects of the Commission that would have potentially far reaching impact on both the State and the ANC. However, all this is dependent on President Ramaphosa style of leadership and ultimately his political will or lack thereof. President Ramaphosa may have to take a cue from former president Jacob Zuma and lately Des Van Rooyen who have shown an acute awareness of the political economy of the Commission in the country’s matrix. Both men have used the Commission as a political forum.
Ridding the State of compromised bureaucrats
One of the main legacies of the Zuma era that can be directly linked to state capture has been the hollowing out of state capacity. This happened in the criminal justice sector, the state-owned enterprises, South African Revenue Services and to a degree the state broadcaster, the SABC. The private sector and professionals were complicit in undermining state institutions. However, it is within the State that President Ramaphosa could reap immediate dividends through the Commission, even before it accomplishes its work. Basically, senior bureaucrats who are implicated in wrong doing at the Commission should be arraigned before internal disciplinary procedures within the SOEs and/or government departments. While they face disciplinary processes, there is no reason why they should not be placed on suspension.
Such an approach would ensure that implicated senior officials do not remain in their positions. This is because their continued service allows them to access some of the evidence impugning them. The consequence of such access raises possibilities of having the evidence tainted and compromised. Besides persons implicated in wrongdoing are likely to be aligned to the state capture and radical economic transformation faction of the ANC. Their remaining in government poses risks to any reform agenda that President Ramaphosa might have. Most of the compromised senior civil servants such are so called deployees of the ANC. Therefore, President Ramaphosa cannot be accused of interference as he only has to empower his ministers to act.
In any event, former president, Jacob Zuma has demonstrated to South Africans the powerful nature of the South African presidency as derived from the Constitution. In this regard, President Rampahosa cannot argue that his hands are tied by the ANC or Constitution. However, thus far President Ramaphosa has shown a reluctance to act against senior bureaucrats implicated at the Commission.
Renewing the ANC
Outside the State, President Ramaphosa could use the Commission’s work to cleanse the party of corrupt leadership. That way he will be able to rid the ANC of corrupt and compromised leaders. The Radical Economic Transformation faction is bound to stage a fierce pushback campaign. President Ramaphosa would have to isolate the ‘die-hards’ by assigning the moderates to important duties of the states. The subsequent arrests arising from the work of the Commission would serve to further isolate the factionalists. The ANC agreed in Nasrec that leaders who have been implicated in wrongdoing need to step aside. For starters, such implication could be extended to include through the Commission. Another way would be for President Ramaphosa to empower the NPA to hasten the charging of those ANC leaders implicated at the Commission. Once they are charged, they would then be instructed to step aside. This would affect persons such as Nomvula Mokonyane, Ace Magashule, Bongani Bongo among others. These would then be replaced by younger and ethical leaders.
Commission in the hands of the Radical Economic Transformation faction
If President Ramaphosa decides to sit out the Commission, and allow it to conclude its work he may embolden his detractors to remove him in 2022 and basically shelf its findings. Instead, in a process of reverse engineering, they may use the Commission to pursue him and the whole CR17 aligned leaders. Failure by President Ramaphosa to strategically utilise the Commission as it sits and instead wait for it to conclude its work, may result in its work becoming moot. However, if President Ramaphosa allows for the Commission to finish, have his detractors take the findings for judicial review, he may buy time to have the NPA charge the culprits just before the elective conference in 2022.
The Zondo Commission of Inquiry into State Capture has thus far offered a platform for South Africans to ventilate the corruption that went on during the Zuma era. However, as the Commission work progresses it is becoming unclear if its work will be equivalent to the movie Fightclub, by providing a platform for catharsis than tangible results. It does seem President Ramaphosa views the Commission as a legal forum, an approach that misses its political strategic roles. These are to rid the ANC of rotten apples and eliminate dozens of state functionaries that were placed by the Zuma regime to further state capture and looting. South Africans, through civil society organisation and opposition parties should continue to put pressure to bear and ensure that the Commission’s work and taxpayer’s money yields tangible results for the betterment of South Africa. These reflections should occupy our minds as the Commission turns two on the 21st of August.
Mr Azwimpheleli Langalanga is a Senior Associate: International Trade and Investment Policy at Tutwa Consulting Group. He writes in his personal capacity.