DAYS OF ZONDO: ANALYSIS

Fierce urgency of NOW: An interim state capture report could speed up prosecutions

By Marianne Thamm 23 January 2020
Caption
Deputy Chief Justice Raymond Zondo. (Photo: Financial Mail / Freddy Mavunda)

While Deputy Chief Justice Raymond Zondo has applied to extend the commission of inquiry into State Capture for a further 10 months, clear evidence of serious corruption and fraud are piling up. Now there are growing calls for the commission to issue an interim report to enable a speedy and firm flush of the rot still lodged in the system.

As the Zondo commission resumed on Monday 20 January, Deputy Chief Justice Raymond Zondo expressed surprise at the watertight case turned up by a PwC forensic investigation into Umhlanga businessman and friend of the Zuma family, Thoshan Panday, and the SAPS officers who colluded with him to defraud taxpayers of R60-million.

Forensic auditor Trevor White set out in great detail how the shakedown was planned and executed long before the 2010 Fifa World Cup rolled into town.

SAPS Supply Chain Management big cheese, Colonel Navin Madhoe, and Panday immediately recognised the golden goose that shimmered on the horizon. SAPS members would have to be accommodated during matches in Durban – lots of SAPS members. And what better way to milk the system than rig tenders with hugely inflated costs.

To say nothing of the R2-million bribe Madhoe offered – and was caught on film offering – KZN Hawks head Johan Booysen, who was investigating the accommodation tenders and Panday.

Drawn into the sordid mess were other officials including then KZN NDPP, Moipone Noko who, in 2012, opted to withdraw charges against Panday and Madhoe and go after Booysen instead.

White, a forensic auditor, explained to Zondo this week that the case was so strong because the bad guys had kept comprehensive records of who they paid and had left a treasure trove of a paper trail of how they concocted and implemented the scam.

Zondo asked White whether it was unusual for a case to be so strong, to which White replied that it was the first time in his career that this had happened. The criminally inclined seldom leave any direct evidence that would implicate them, he opined.

Daily Maverick has consistently attempted to extract from SAPS the current status of Colonel Madhoe’s deployment in the service while facing such serious allegations which have been ongoing for a number of years.

Even Zondo himself asked way back in May 2019 whether SAPS had acted on Madhoe, who was still on active duty at the time.

“I have heard that it appears that not much has been done over many years in regard to the allegation against him in relation to bribery, and that includes in terms of internal disciplinary matters within SAPS,” Zondo said in May 2019.

The Deputy Chief Justice said if nothing had been done this would be a matter of “grave concern”. SAPS, said Zondo, should immediately look into the Madhoe matter and “take such decision as dictated by the law and policies of SAPS”.

“Whether somebody has already looked into the matter and came to a decision that nothing should be done, I don’t know, but I would like to know whether anything has been done and, if so, what it is,” he said.

SAPS’s standard communication to Daily Maverick is that management “would not be commenting on submissions being made for or against SAPS members at the Zondo commission”.

Another case that is prosecution-ready and has been aired at the Zondo commission is the R30-million Great Gupta Sun City Wedding Fund Raiser – the Estina Dairy Project in Vrede, in the Free State – Ace Magashule’s home turf.

News that Zondo has applied to the High Court for an extension by 10 months of the term of the State Capture inquiry has led to concerns that a delay in the issuing of a final report could retard prosecutions in the meantime.

The pile of evidence of industrial-scale corruption aired at the Zondo commission is shoring up with a cast of hundreds of villains outed in full public view.

Now there are fears that the State Capture commission ship might be a Titanic, sailing off into an iceberg of oblivion with no action expected before at least 2024/25 and beyond.

Just recently evidence leader Paul Pretorius called for an investigation into the capture of fisheries. And so the ripples stretch further into possible infinity.

On 18 January 2020, head of the NPA’s new Investigative Directorate, Hermione Cronje, delivering a guest lecture at the UCT Summer School, revealed that since her appointment in May 2018 she had been shocked at the extent of State Capture.

“Still, day in and day out I am gobsmacked at the scope and extent of the devastation,” she said.

Contemplating the future of the Zondo commission, Daily Maverick’s Rebecca Davis wrote on 9 January 202o that Cronje had summed up the dilemma in a November 2018 presser, stating that “The Zondo commission is great, but it doesn’t help us”.

Davis opined that Cronje might be “slightly overstating things, in order to manage public expectations”.

At that point, the Zondo commission of inquiry had cost R356-million, with 92 people delivering oral evidence and more than 700 others issued with notices to respond to allegations aired.

“But the number that many South Africans considered most important was zero: zero arrests made as a result of evidence heard by the commission,” wrote Davis.

It was an interim report issued by the Nugent commission of inquiry into SARS, and which sat for four months in 2018, that led to the immediate termination by President Cyril Ramaphosa of SARS commissioner Tom Moyane’s employment.

In September 2018, the Nugent commission issued the interim report offering a “unanimous view” that the degeneration of SARS was brought about by “at least, reckless mismanagement of SARS under the tenure of Mr Moyane and it ought not to be permitted”.

“We consider it imperative that a new commissioner be appointed without delay to remove the uncertainty at SARS,” recommended Nugent.

In November 2018, a month before the Nugent commission issued its final report, President Cyril Ramaphosa terminated Moyane’s services “with immediate effect”.

While Moyane has not yet been charged, as a clear and present threat to the functioning of the state, he was removed from the system.

While the terms of the Nugent commission were not as sprawling as those of the Zondo commission, amended terms of reference for the State Capture commission do allow for evidence aired there to be used in criminal proceedings.

Zondo’s terms of reference are more discreet than Nugent’s but do allow, according to clause 7, for the commission, where appropriate, to “refer any matter for prosecution, further investigation or the convening of a separate inquiry to the appropriate law enforcement agency, government department or regulator regarding the conduct of certain persons”.

Of course, hearsay evidence, such as that offered by former GCIS head, Themba Maseko, that late minister in the presidency, Collins Chabane, had informed him that former President Jacob Zuma had instructed his [Maseko’s] removal, would be inadmissible and useless in a criminal trial.

Corruption Watch’s David Lewis told Daily Maverick it was common knowledge that, because of the scale of the inquiry and the length of time allocated, it would take much longer to issue a final report than had been anticipated.

In the meantime, said Lewis, nothing was preventing Zondo from issuing interim reports which would ultimately alleviate the burden of compiling a doorstop final report that would then only be acted on later.

In the meantime, public confidence and the momentum gained by the Zondo commission was bound to fade.

Over and above potential later delays, some of those fingered have already attempted to Stalingrad the system. Panday has challenged the re-enrolment of the R60-million corruption charge after Noko’s decision to drop the charges. The same goes for the R2-million bribe charge against Madhoe.

The Zondo commission is of the view that it cannot share information with the NPA other than under subpoena, a huge obstacle that could possibly be cleared through the issuing of interim reports.

In his application to the High Court in December 2019 for a further extension to the term of the State Capture inquiry, Zondo pleaded: “If the relief sought is not granted by the end of February 2020, this will mean that the objectives underlying the commission and its work will be rendered nugatory.”

The Deputy Chief Justice also said the commission’s proceedings would be “streamlined” by focusing on the original issues listed by former public protector Thuli Madonsela in her 2016 State Capture Report as well as issues that might fall outside Madonsela’s “list” but that fell within the commission’s terms of reference.

In the meantime, President Jacob Zuma, who has managed to slip out of replying to allegations at the commission, has vowed to challenge the very existence of the State Capture commission, which he appointed.

Interim reports, Lewis said on Karima Brown’s The Fix on eNCA on Sunday 19 January, could also help to identify and immediately rectify loopholes exposed in the system and which could be altered to prevent further fraud and corruption in the state.

“People think someone who gets charged tomorrow will end up in jail shortly afterwards,” said Lewis, but the truth of the matter is that proceedings resulting from issues aired at Zondo could take years to reach completion and get to court.

Interim reports would and could, most certainly, help to speed up a vital but long and cumbersome process at the commission, enabling law enforcement to act on clear-cut cases which are ready to go and to remove high-profile suspects, like Colonel Madhoe, still stuck in the state’s system. DM

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