DAYS OF ZONDO Analysis

A poor week past, with a power week ahead (well, possibly)

By Erin Bates 27 July 2020

Deputy Chief Justice Raymond Zondo, 23 January 2020. (Photo: Gallo Images/ Veli Nhlapo)

On Friday 24 July the State Capture inquiry’s head, who is also the second-in-command of SA’s judiciary, compelled a high court judge to furnish affidavits and appear in person. Deputy Chief Justice Raymond Zondo spoke sternly of absent Gauteng High Court Judge Tintswalo Makhubele. This, during a lacklustre week of hearings. Has the public lost faith in the process?

A little under two years into the State Capture inquiry’s public hearings, it has lost considerable impetus. Hearings began in the heady days of the supposed “New Dawn” administration. Now, the government faces a new wave of procurement fraud during the national lockdown.

Public hearings began on Monday 20 August 2018. Then, the initial inquiry venue in Parktown, Johannesburg hummed with interest from various parties, including the public and press. (It has since moved to the City of Johannesburg’s Council Chamber, which has cut costs.)

At first, several critical witnesses appeared, including former deputy minister of finance Mcebisi Jonas, former parliamentarian Vytjie Mentor, and Themba Maseko, previously chief of government communications.

The commission has held over 200 days of proceedings. Its work overall, including investigations, has cost the state hundreds of millions of rand. As of early July, the inquiry’s reported price tag was R700-million, according to the acting director-general of the Department of Justice, Jacob Skosana.

On Wednesday 8 July, Skosana told the Portfolio Committee on Justice and Correctional Services that legal costs and investigations were among significant expenses. The figure will rise as the commission’s end nears. Public hearings are subject to a deadline in March 2021. The remaining lifespan is eight months.

Judge Wendy Hughes handed down an order in February declaring a deadline of Wednesday 31 March 2021. This draws a proverbial line in the sand for public hearings. The order is open to appeal, at least in theory. However, it is doubtful a bid at the Supreme Court of Appeal would prove strategic in light of the commission’s extensions to date.

Managing expectations

Patience, interest and faith in the process may be waning. It is likely that attention will periodically surge when prominent witnesses appear.

Former president Jacob Zuma is still set to return. President Cyril Ramaphosa, whose campaign finances came under scrutiny during Bosasa evidence, has committed to testify at an indeterminate date. Former minister Nathi Nhleko is set to speak on Monday 27 July.

The inquiry will, ultimately, result in a report to be delivered to the president and then discussed in Parliament. The chair previously indicated the report’s compilation would take an estimated six months. That was one year into proceedings, and the final document could take longer.

The report will include a determination on whether or not State Capture occurred. It is likely to contain analysis. It must list recommendations. In itself, however, the report will not secure prosecutions or place sentenced criminals behind bars.

A (mostly) squandered week

Deputy Chief Justice Raymond Zondo referred to the looming deadline during proceedings on Friday 24 July. The day’s hearing, which ran for approximately three hours, ended yet another disappointing week with little progress.

A mid-month advisory predicted input during the week of Monday 20 July on claims of corruption at Bosasa and the Passenger Rail Agency of South Africa (Prasa). Those scheduled to testify included politicians Gwede Mantashe and Nomvula Mokonyane, former prisons seniors Linda Mti and Patrick Gillingham, and presiding officers Tintsawlo Makhubele and Desmond Nair.

Mantashe was among Cabinet members in hospital receiving treatment for Covid-19, hence the postponement of his evidence. Poor administration and failed correspondence were among grounds for postponing others’ appearances. 

Mokonyane was the only prominent witness who testified last week. She appeared on Tuesday 21 July and countered claims raised by Angelo Agrizzi, formerly of Bosasa. Possibly one of the few achievements of the week, then, was obtaining her version in line with the audi alteram partem rule (which insists on hearing both sides of a dispute).

Learned brother and sister

Friday’s proceedings concluded in remarkable fashion. The deputy chief justice who sits in South Africa’s apex court, the Constitutional Court, chided a fellow judge. In his capacity as chair, Zondo directed a presiding officer of the High Court in Gauteng, Tintswalo Makhubele, to furnish affidavits and appear before him in person.

Citing the Terms of Reference, which appeared in the Government Gazette in February 2018, Zondo slapped Makhubele with directions. 

“I would not normally do that against a judge,” said Zondo. Makhubele was expected to appear to respond to allegations of impropriety during her tenure as acting chair of Prasa’s interim board from October 2017 until her resignation in March 2018.

Put differently: the second-in-command to Chief Justice Mogoeng Mogoeng invoked powers to force a learned sister to cooperate. It was an exceptional incident, because of the profiles of the two parties involved.

Time is running out

“I wanted her to be here because we don’t know what the outcome of an application to postpone is going to be,” Zondo said on Friday morning. He asked advocate Gift Shakoane SC, for Makhubele, to contact his client. 

“I know that she is not working today because I did speak to her judge president some weeks back, once we knew the date, to say to the judge president: this is the date that has been set aside for your judge to appear before the Commission.”

After contacting his client, Shokoane said Makhubele “is not emotionally in a state to be able to attend or testify as of today” due to an incident involving a burst tyre the previous night. He indicated Makhubele was not injured.

“She says even the suspension collapsed, and there are pictures available of the car,” continued Shokoane. He later furnished black and white photographs of the incident to Zondo. The unavoidable burst tyre aside, Zondo found Makhubele’s application for postponement was groundless. 

He said: “We are not dealing with just a layperson. We are dealing with a high court judge. She knows how important it is to act quickly if you are expected to appear in a court, tribunal, forum. She knows that it’s important to act quickly if you are not going to be able to appear.”

Growing more incensed he said, “She has had ample opportunity. No explanation seems to be given why over these six months she could not have prepared those affidavits or got counsel to prepare those affidavits.”

Zondo voiced concern about Makhubele and her application for a postponement (raised at the last minute), meaning “this whole day is a waste” when time is limited. 

“We are operating under a court order that says we must finish our work in a certain time,” said Zondo. 

Advocate Vas Soni SC of the commission’s legal team detailed a timeline of interactions with Makhubele, including a face-to-face meeting. He also reported a personal attempt to call her. 

“This is her response, Chairperson: ‘I am driving with people, I’m not in a position to talk,’ ” said Soni.

“And I say, ‘Well, if you want we can talk over the weekend.’ And she says, ‘I am going to be busy all weekend.’ ” 

Shokoane, for Makhubele, later queried Soni’s version. He said Soni’s report that Makhubele did not answer a call on Friday 10 July was wrong. Shokoane was instructed that Makhubele was in court and “she actually” returned the call.

These disputes will be further ventilated when Makhubele appears. Zondo has directed that she must provide affidavits by Wednesday 29 July and appear before Zondo in person on Monday 3 August.

In summary, Friday sounded a discordant coda in yet another stilted week of hearings when key witnesses (including those on Bosasa and Prasa) should have appeared.

Fair is fair

Last week is an example of difficulties the commission faces. To be fair, any protracted inquisitorial process moves through valleys and peaks. The coordination demanded for the smooth running of the inquiry is immense.

Bear in mind the various divisions, including those with investigators and lawyers. The commission is a contraption with several moving parts. For optimal function the team must coordinate internally, and with others, such as those in government departments, hundreds of witnesses and legal teams.

The smooth running of this apparatus demands, inter alia, painstaking administration, rigorous investigation, deft legal counsel, indefatigable constancy and significant public funds. Coordinating investigators and lawyers, while securing the appearance witnesses (among them, the outright obstructive) must prove understandably grinding.

Note, too, the inquiry’s work is divided into workstreams, such as those on graft at Eskom and Transnet, which are covered in haphazard fashion. Zondo has cited incomplete workstreams and the imperative to obtain responses from implicated persons among reasons no provisional reports have been released.

Is it not outrageous that no such reports have been made available to the public to date? The costly inquiry process has run for almost two years. It is lauded as proof of the government’s commitment to stamping out corruption.

States of disaster

Ramaphosa announced a National State of Disaster on Sunday 15 March. The national lockdown intent on limiting the spread of the coronavirus put a temporary pause on hearings. In April, after Ramaphosa announced the lockdown’s extension, the inquiry’s spokesperson issued a statement indicating 10 days of proceedings would be stalled.

Witnesses scheduled to testify from 20 to 30 April would be “notified of new dates when they will be required to appear”. The notice recorded, however, that those scheduled to appear outside that period were required to appear on given dates, unless informed otherwise. 

Since then, proceedings resumed, with heightened health and safety protocols in place at the venue. The upcoming week is set to focus on law enforcement. Former minister of police Nathi Nhleko is expected to take the oath after 10am on Monday 27 July.

The erosion of law enforcement agencies as a tactic of State Capture, corruption and fraud is a vital topic of inquiry. With it approaching, there is a potential for the inquiry to stride away from a valley of disjointed hearings toward another peak of rigorous proceedings. If successful, this could buoy public confidence in its work. DM

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