ANALYSIS

Zondo Commission will be long and thorough – will it outlast President Ramaphosa?

By Ferial Haffajee 21 August 2018

Archive Photo: President Cyril Ramaphosa, 07/04/2017. Kopano Tlape GCIS

By taking so long to get started and by interpreting its role in too legalistic a way, the Zondo Commission could fail President Cyril Ramaphosa and find itself outliving the president which commissioned its work.

The State Capture commission, headed by deputy chief justice Raymond Zondo, has 180 days, which translates into roughly six months, to complete its work. On Monday, the commission held its first hearings – eight months after that first proclamation.

The first thing Zondo did as chairperson of the State Capture inquiry earlier in 2018 was to ask for more time: two years, which means his report is only likely to be delivered close to the end of 2020.

The commission is off to a lumbering start and with Ramaphosa facing a severe political onslaught in his party, it’s pertinent to ask: will Ramaphosa stay in power long enough to see Zondo Commission completed?

The ever astute Ramaphosa gave Zondo a short timeline as he needed to display real action on State Capture, both to shore up an ANC election victory in the 2019 election and to protect himself from the well-heeled forces of capture who have assembled a war chest to fight him.

With a razor-slim margin of 179 votes at December’s ANC presidential elective conference, Ramaphosa was always going to have to work hard to stay in office. Officials say that he faces a war of attrition on the ANC national executive committee where he is regularly warned that if he does not do the party’s bidding, he will face a recall motion at its mid-term national general council which happens midway between elective conferences – about 2020.

The losing faction, which is closely allied to former president Jacob Zuma, has faced an onslaught by Ramaphosa’s administration which has acted to cut off its resources in the provinces and in the state-owned enterprises where the network of interests had taken root.

But the Zuma-Gupta network is rich and it is using its funds to mobilise against Ramaphosa who needs to take it to the network and put some culprits in jail.

The commission may not be able to deliver in time.

The Guptas, Zuma and his son Duduzane Zuma, the arms dealer and Gupta family lieutenant Fana Hlongwane, as well as his former chief of staff Lakela Kaunda and the former Public Enterprises minister Lynne Brown, were all lawyered up with costly senior counsel this week, showing that they are ready to put up a big and long fight against the Zondo Commission.

By taking so long to get started and by interpreting its role in too legalistic a way, the Zondo Commission could fail Ramaphosa and find itself outliving the president which commissioned its work. The commission has taken months to set itself up. Its first big intervention was to have its term extended while its second was to look for a big budget boost.

Granted, the terms of reference of the commission demand a thorough excavation of State Capture to ensure that it is excised and that the past 10 years’ record of capture are not repeated. The inquiry’s head of the legal team, Paul Pretorius, said on Monday that his work was to answer whether State Capture existed and, if it did, how it had come about and how to ensure that it was not repeated in the future.

That is a huge mandate. To answer that question, investigators, lawyers and commissioners who make up the judicial commission of inquiry will have to investigate at least 20 pieces of law and a plethora of state institutions and state-owned enterprises to understand how networked State Capture operated. International evidence will be led by way of global experts in State Capture providing testimony of how the Zuma-Gupta network fitted into the intersection between politics and international criminal syndicates – what the author Misha Glenny has called a McMafia in his book of the same title.

The inner ring of evidence the commission will hear is what the role of the Gupta family and Zuma were in offering Cabinet positions to former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor – in other words, how was the national executive compromised or involved in State Capture.

From there, the commission will fan out to consider whether the former president, any member of his national executive, or any public official or employee or board member of state-owned enterprises violated the ethics code or legislation by facilitating or awarding tenders to benefit the “Gupta family or any other family, individual or corporate entity doing business with government or any organ of state”.

The commission will look specifically at whether the New Age newspaper was favoured by government entities – two executives of the Government Communication Service (GCIS), Themba Maseko and Phumla Williams, are likely to give evidence about this.

The terms of reference of the commission can be added to, varied and amended at any time and there is a lobby to expand its remit to look at State Capture during the apartheid years.

If this succeeds and its ambit is expanded, then there is every chance that the commission, which is based on investigations, will exceed even the two years it now has in which to complete its work.

From the commission’s first day on Monday, there will also be inquiries within inquiries: each commissioner has been given an entity or state-owned enterprise to establish a line of questioning into.

A lot of the work has been done for the commission. In addition to former Public Protector Thuli Madonsela’s report into State Capture which undergirds the establishment of the commission, there are veritable libraries of inquiries and reports into State Capture, not only at national government level, but at enterprise and entity level too, much of which is vaulted in amaBhungane and Scorpio’s exposés and coverage of State Capture. If these reports are admitted into evidence, the process can be shortened.

The Zondo commission of inquiry is a remarkable symbol of accountability in action and of the triumph of the rule of law over the forces of capture in South Africa. As Pretorius said in his opening statement, South Africa is exceptional in post-colonial democracies for putting State Capture on trial.

He attributed this to South Africa’s strong civil society, its excellent Chapter 9 institutions (established by the corresponding chapter of the Constitution to protect the Bill of Rights) and the judiciary.

The Commission is likely to be an additional and scholarly process of deep legal introspection and one of fairness and process. But it will be long and lawyerly and complex. And it may very well outlast President Ramaphosa. DM

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