Justice Raymond Zondo has for months been pleading with the government to approve the use of private law firms to defend high court applications aimed at setting aside the State Capture Report.

The chairperson of the State Capture Commission is concerned that the State Attorney is not sufficiently capacitated to defend the report.

Produced at a cost of more than R1-billion after three years of public hearings, the report stands as a record of large-scale corruption in the public sector. It is the subject of roughly a dozen review applications, all of which are being opposed by the commission.

It has emerged, however, that the commission has been left red-faced in some of the matters as it has not been able to file either records or answering affidavits, primarily because it does not have a dedicated team of lawyers.

The commission, in response to questions from Daily Maverick, says discussions with advocate Doc Mashabane, the director-general of the Department of Justice, the office of the State Attorney as well as Solicitor-General Fhedzisani Pandelani have come to naught. 

Even two attempts by Zondo, in his capacity as chairperson of the commission, to get Justice Minister Ronald Lamola to intervene have thus far been unsuccessful. 

Daily Maverick has now confirmed that this is primarily because the commission is at odds with the government about whether these cases ought to be entrusted to the State Attorney or if they should be farmed out to private law firms. 

Reviews filed to date include those by former President Jacob Zuma, former spy boss Arthur Fraser, Cabinet minister Gwede Mantashe, former Eskom acting CEO Matshela Koko, and Lucky Montana, Sfiso Buthelezi and others formerly of the Passenger Rail Agency of SA (Prasa).

Regardless of their merits or prospects of success, some of these applications are voluminous and politically charged.

Daily Maverick confirmed details of the tension between the commission and the government after submitting enquiries about delays in the commission’s filing of records and responses in some of the court cases. 

First the State Attorney, as the government’s attorney of record, told Daily Maverick that it is coordinating all aspects of the litigation with appointed counsel. 

But then the commission, in response to questions, said it had engaged the Department of Justice about the need for private law firms to step in after it became clear that the State Attorney did not have the capacity to handle these cases. 

After what it bills as inordinate delays that undermined and compromised its position, the commission briefed private lawyers to get started on the reviews. Those firms are working at no charge until such time as the government resolves the issue, the commission said. 

In its response to Daily Maverick, the commission also sets out, in extraordinary detail, its frustration and concern about the situation. 

It initially asked the State Attorney to represent it as well as commission chair, especially in some of the earlier applications filed.

It was then found that the State Attorney had not carried out some of the instructions. Enquiries in August 2022 revealed that the State Attorney’s Johannesburg office did not have the capacity to deal even with its own caseload: “That office revealed that each attorney was handling in the region of 1,000 files or so and they were under severe pressure.”

It was then that the commission approached the government in the hope of appointing private lawyers. 

But, despite it having exerted much pressure on the office of the State Attorney, that of the Solicitor-General and the DG of Justice over the past six months, nothing has come of it. 

The State Capture Commission sat for more than three years of public hearings and concluded its work with a six-part report that was handed to President Cyril Ramaphosa between January and June 2022.

Although the report implicated many individuals and entities, its release, remarkably, did not trigger a flood of review applications. 

The commission said qualifying parties have 180 days (six months) from the date of the release of the relevant part of the report to institute a review application. 

‘Deep disappointment’

Given the high-stakes nature of some of them, it is crucial for the defence of the report to be consolidated both legally and financially. 

The commission said being left without lawyers to defend its work and the report would play into the hands of those who wanted to collapse the commission or have the report nullified.

In its written response to Daily Maverick, the commission quoted Justice Zondo, saying: “It is a matter of deep disappointment that the Commission has been put in this embarrassing position where it has not been able to lodge records in Court because the Government has failed over a number of months to appoint attorneys to represent it. The work of the Commission is very important and should be defended in the interest of the fight against state capture and corruption.”

Amanda Vilakazi, Mantashe’s attorney, told Daily Maverick: “In August last year the State Attorney requested indulgence for filing of the rule 53 record for a period of 2 months, they indicated that the record we are requesting is voluminous and requires time to compile.

“It is now February 2023 we still have not received the record, despite numerous requests, we will be filing an application to compel the Commission to file the record of their decision making/recommendation.”

The only matters in which the commission has lodged records in

court are those involving former President Jacob Zuma and Johannesburg businessperson Auswell Mashaba, who was implicated in the Prasa/Swifambo rail scandal.

Both cases pre-date the current tension over the use of private lawyers.  

The commission says the Solicitor-General had undertaken to appoint private lawyers in December and still nothing has been done. 

This, the commission says, is despite it having explained the urgency as well as how delays are compromising its position in relation to the various review applications.

We’ve got this, says DoJ

The Department of Justice (DOJ) says it is the custodian of the report, and it therefore has a duty to defend it. It says it has instructed the State Attorney to represent the commission in this regard.  All reviews are being opposed, it says. 

Technically, there is no commission so the management of legal challenges rests with the Department of Justice. The commission’s secretariat operates on a skeleton staff of about 13 people tasked with handling administrative issues, including some aspects of the legal challenges. 

The State Attorney, it says, will coordinate and manage all aspects of the relevant litigation. But it intends using the institutional knowledge and expertise of some of the Zondo Commission evidence leaders who dealt with the relevant work streams. 

Reviews filed to date emanate from the commission’s Bosasa, South African Airways, Prasa, Eskom and the State Security Agency work streams.

Asked whether there was a need for a special dispensation given that the commission chairperson – cited as a respondent in all the cases filed to date – is now also the country’s Chief Justice, the Department of Justice said: “The situation is not unusual as judges have led other Commissions which were also taken on review, some successfully.

“The Judiciary is independent and those involved in the Commission may have to recuse themselves from the adjudication of those matters.” DM