Judge Raymond Zondo plans to deliver his report into State Capture to President Cyril Ramaphosa at the beginning of 2021 – and he says that he will not hesitate to compel President Jacob Zuma to complete his evidence before the commission of inquiry into State Capture.
“I certainly would use my powers to compel anybody if it was necessary and justified,” said Zondo in an interview with Daily Maverick and in response to a question of whether he would subpoena Zuma to appear before him. The former head of state dodged his second round of evidence before the State Capture inquiry in November 2019 due to an illness. He missed another deadline in December to make representations to the commission on why journalist Redi Tlhabi should not be allowed to cross-examine him.
This time, he was reportedly out of the country in Cuba seeking treatment related to allegedly being poisoned. In July 2019, Zuma made numerous and unhinged allegations of plots against him and threats to his life when he appeared before the Zondo Commission of Inquiry in State Capture, but refused to answer any substantive questions put to him about his general role in State Capture and his specific role in abetting the Gupta family to amass a sizeable fortune through extracting from state coffers.
In 2019, the Zondo commission has traversed the dark heart of State Capture as it heard evidence of how Bosasa, the facilities management company, ran an empire of corruption to rival the Gupta network. In riveting evidence to start the year, former COO Angelo Agrizzi laid bare how bribes were counted out in cash for senior ANC leaders or people who worked in the state-owned enterprises they had contracts at, in a walk-in safe belonging to Bosasa founder Gavin Watson. His evidence dragged the party into the centre of the story of State Capture and ensnared President Cyril Ramaphosa’s campaign when it was revealed that his fundraisers took R500,000 from Watson when he ran for the job of ANC president.
Zondo’s commission became a national confessional and he was the high priest. The headquarters in a cavernous and grey room in Parktown became an arena for the excavation for how State Capture ripped South Africa apart.
By the end of the year, the extent of Zuma’s complicity skirted near treason when his former staunch ally and spy boss Mo Shaik revealed how three intelligence chiefs had warned the president in 2011 that the Gupta family’s proximity to political power and its power to influence had become a threat to national security.
For much of 2019, national attention was focused on the State Capture inquiry. The Daily Maverick spoke to Judge Raymond Zondo about the year and about when he is likely to deliver his report.
When the Pan SA Language board started searching for the South African word of the year in 2019, it was not “load-shedding” or “rugby” or any of the topics that trended. Rather, it was “Zondo commission” followed by “amapiano”, a zingy dance move at the centre of Mzansi’s cultural cool.
The two words were an interesting juxtaposition revealing how the Zondo commission, aided by live-streaming and the painstaking work of investigators and the legal team had made the truth behind State Capture a trending topic. “I must tell you I didn’t know anything about it (the word of the year) until the staff members of the commission told me. I found it quite interesting because (it speaks to) the importance of the commission in the country and beyond our borders. Wherever I go, people express support for the commission. On aeroplanes, at malls, people come across and speak in high praise of the commission. They pray for us. And say ‘we appreciate the work’ or ‘please tell your people we pray for them’. It might represent hope that something is being done. A lot of people may be looking at it that way,” says Judge Zondo at his chambers in the Constitutional Court, which are a stone’s throw away from the commission’s venue.
A jocular man, Judge Zondo’s voice is both soothing and inquiring, and he gives equal respect to the angels and the lesser angels of our country who have appeared before him since the commission started sitting in August 2018. The commission, like the Truth and Reconciliation Commission, which sat when apartheid ended, hears the evidence of both perpetrators and victims of State Capture. It hears from whistle-blowers and those like Agrizzi who may have an axe to grind or who experience an event (in his case, a medical trauma), which requires the absolution that truth can sometimes bring. In all, I have seen Zondo grant each his exquisite attention, listening carefully, but without the judgment that can emanate from the hall at the most hair-raising revelations.
In the journalists’ rows, you can sometimes hear a sharp intake of breath to express disbelief or see a raised eyebrow. If there is a gathered audience, they will mutter either in support of evidence or against it.
But Zondo sits in attendance and without judgement, sometimes leaning his jaw into this fist like The Thinker. Is it, I ask him, difficult to be so inscrutable, and to sit and hear so attentively even evidence both shocking and heart-stopping in what it reveals about human venality? “Sometimes it is difficult and there are occasions when I have failed. It is quite important that people who come to give evidence must know I am listening to what they say even if they are implicated persons. I have to understand their perspectives because in the end when I make findings, they must feel like they were heard and heard properly, which does not mean they should not be asked difficult questions. But we have got to do the best we can to make sure they understand we are only doing our job. We have no agenda other than truth.”
In July 2019, Judge Zondo had his toughest time when Zuma appeared at the commission and proceeded to deploy the Stalingrad tactics which have seen him dodge charges related to the arms deal for over a decade. He fussed and accused and then finally threatened to pull out. Zondo called lawyers for both the commission and for the former head of state to his chambers and arm-wrestled a compromise out of them. Zuma would be given a summary of the areas of interest (a courtesy not widely extended), he would be asked about and his team agreed to come back in November to complete proper evidence.
November came and went and there is no Zuma in sight. This has caused tension in the commission with some staff believing that Zondo is going too easy.
“I was happy that agreement was reached. It was a difficult week. I certainly would use my powers to compel anybody if it was necessary and justified. The approach I have taken with regard to many witnesses is that first we try and get people to come voluntarily and only if they are not willing to come voluntarily, only then do you engage the powers of compulsion,” said the judge. While Zondo has, on occasion, used these powers, he has not yet done so with Zuma.
Critics have expressed the view that Zondo is taking too long with the commission and that its proceedings are only a catharsis in the absence of jail-time. But is that a fair view? In months of reporting the commission, you get the sense that Zondo is a humanist, but wily operator. Extraordinarily polite, he will ask witnesses to sit closer to the mic; inquire into their comfort and he often creates a rapport with them, even when they are saying pretty outrageous things.
One thinks specifically of how Duduzane Zuma turned his appearance into a charm-and-deny fest, loving up the media, commission staffers and the gazing audience with his telegenic looks and the polite, “yes, sir” and “no, sir” to Zondo, who laughed along with Zuma junior, but also put a couple of x-ray questions to him from which there was no easy charm-out. The judge can get tetchy when his papers are not properly arranged or when a line of questioning is going outside the bounds of procedure and he will not hesitate to pull it straight.
What nobody can say though is that this is a whitewash of a commission like, for example, the inquiry into the arms deal where Judge Willie Seriti presided over a sweetheart affair where the outcome was pretty easy to determine by even the most cursory of attentions.
There is clear method in Zondo’s approach.
You have to keep both perpetrators of State Capture and the victims thereof on the side of the commission’s work to protect its integrity. The process has been a fascinating exposition of human nature in its varied forms. “(Of course) there is the view that humans are inherently good, but it (the process) has revealed to me that despite that, the things people can do are horrible; it’s horrifying to sometimes see how horrible. It might be just greed. A lot of it might be coupled with a sense that people (believed) they might never be caught and face the consequences. (And it’s this) that we must look at as a country,” says Zondo.
He acknowledges the better angels. “Some people have stood for what is right against all kinds of odds and at great risk to self and family and when they could suffer in their careers and businesses … or just be deserted by people who would frown upon what they are doing.”
Once the commission begins to wind up hearing oral evidence by the middle of 2020, Zondo plans to put out a call to civil society and to political parties to make recommendations on how to deal with all we have heard. For the judge wants collective ownership of the outcome. “I am keen to make sure the nation plays a role. As far as possible, the nation (must) see the recommendations not just as my recommendations (but) as the product of the nation coming together to solve a national problem.”
An ongoing commission into State Capture?
The terms of reference of the Zondo commission of inquiry are wide – basically, it asks the judge to probe everything and the kitchen sink about State Capture. Unlike the other commissions of inquiry Ramaphosa initiated (into the National Prosecuting Authority, the SA Revenue Service and the Public Investment Corporation), the Zondo commission is not a single-issue probe.
Take, for example, this line from the gazetted terms: “whether, and to what extent and by whom attempts were made through any form of inducement or for any gain of whatsoever nature to influence members of the National Executive (including Deputy Ministers), office-bearers and/or functionaries employed by or office bearers of any station institution or organ of state or directors of the boards of SOE’s”.
That line covers literally thousands of people and institutions, and people have lined up to contact the Zondo commission to make representations. A unit deals with all requests to make submissions, tip-offs and themes. Zondo asks to see summaries and will more than occasionally make determinations on whether a submission should be investigated and turned into an affidavit by the legal team. Then, the investigators also pursue their own lines.
“The scope is too wide,” says Zondo who says that he may have to seek to ask Ramaphosa to amend the terms to ensure it finishes its’ work on time. But he says that the investigations must continue under the varied institutions tasked with tackling the audacious corruption that sucks at South Africa. When we meet, it is the final day of the sitting of the Zondo commission for the year and the judge’s aides have given a strict time limit for the interview, so I manage two final questions.
Is the commission a work of finding truth or of finding justice? “I think it is truth-seeking. But I think it might be artificial to separate the two completely. We want to establish the facts and once we know the facts, there may be a basis and foundation for justice.” And, finally, given the scope of the task which has taken him from his gavel and the apex of justice at the Constitutional Court, would he do it again?
“If asked, I would still do this. I view it as a very important job to be done for ourselves, our children and our children’s children.” DM
The Hindenburg had a smoking room.