AGE OF ACCOUNTABILITY OP-ED
Raymond Zondo on Parliament and State Capture – perhaps he had a constitutional duty to speak out
The lackadaisical approach by the other two branches of the state to implementing the State Capture Commission’s recommendations prompted the wrath of the Chief Justice. And his frustration echoes that of many South Africans.
The comments by Chief Justice Raymond Zondo on the first anniversary of his handing over the final reports of the State Capture Commission of Inquiry have ruffled feathers within the legislature and the executive. The presiding officers of Parliament have requested an urgent meeting with him. The principle of the separation of powers between the three arms of the state has been invoked to suggest that Zondo has overstepped the mark. Has he done so?
While the Constitution does not explicitly refer to this cardinal democratic doctrine, let alone seek to define it, some guidance can be found in the constitutional principles that were part of the Interim Constitution, which said: “There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.” Therein lies its purpose which finds expression among the foundational values of the Constitution.
It has been argued by Parliament that since Zondo is Chief Justice and head of the judiciary, he should not reflect on their performance. But it is not as simple as that. There is no rigid delineation of powers between the three branches. The overriding thrust of the principle is to prevent the concentration power in any one branch – the mechanisms of checks and balances are intended to mediate that. The tensions that may arise are in fact an indication that the checks and balances are being exercised. If any of the branches adopts a supine attitude it undermines the whole scheme.
Read more in Daily Maverick: Parliament is incapable of preventing another State Capture bid, says Chief Justice Zondo
Apart from being the current Chief Justice, Zondo presided for more than four years at the Commission of Inquiry into State Capture and is in a better position than most of us to understand its impact and ramifications for our democracy. He expressed his dismay that there had been little progress in implementing the recommendations he had made in his reports. In particular he lamented the failure of Parliament to respond with a sense of urgency, repeating the question he has posed before: Would Parliament be able to respond any differently if State Capture were to confront us again? What would it do differently?
It is left to civil society organisations and the media to once again keep the spotlight on the commission’s report and its recommendations.
President Cyril Ramaphosa tabled his government’s response to the State Capture Commission’s reports in October 2022, in a submission to Parliament. He listed what the government would do to implement the recommendations. The reality is that very little has been achieved to date.
Legislation to enhance the protections afforded to whistle-blowers and to make the Investigating Directorate (ID) in the National Prosecuting Authority a permanent structure has yet to be brought before Parliament. The result is that whistle-blowers continue to be victimised, and the ID is unable to offer long-term contracts to attract the skilled expertise it needs. The President has committed to assessing the position of the members of his national executive who were implicated in the commission’s reports – it is unclear whether any progress has been made. What is clear is that no one has been removed from office as a result. These are just a few examples.
Similarly Parliament tabled its implementation plan following the commission’s report and the President’s response on 31 January 2023. It too sets out a mechanical process of how the President’s plan would be monitored and how Parliament itself would implement the 16 recommendations directed at it. The latter focused primarily on Parliament’s core oversight and accountability mandates. The commission concluded that it was Parliament’s deficiencies in this regard that were at least partially responsible for a culture of impunity setting in, leaving the perpetrators of State Capture immune from any form of rebuke or accountability.
Zondo proposed that the National Assembly establish a dedicated committee to oversee the Presidency. Given the role that former president Jacob Zuma played in State Capture, the importance of such a structure should be a no-brainer. Yet the assembly has kicked for touch, deciding instead to investigate the issue further, and will be undertaking study tours to countries such as the UK and France! The assembly also mandated its various portfolio committees to report back to the house at quarterly intervals on tasks assigned to them. No such reports have been tabled as yet.
Despite talking a good game about dealing with State Capture, words are not being turned into deeds. To many it represents a pattern of inaction following various commissions of inquiry or other pronouncements by expert bodies. This is particularly so when the commission named several senior figures from the ruling party, and those with close links with the ruling party, as persons implicated in State Capture.
It is left to civil society organisations and the media to once again keep the spotlight on the commission’s report and its recommendations. While State Capture as it was brazenly practised during the Zuma era may have dissipated, large-scale corruption continues to plague us with ever-increasing links to organised criminal syndicates. It may be morphing into something more deadly and difficult to eradicate.
Read more in Daily Maverick: State Capture 2.0: The corruption warning lights are flashing on the SA political patronage system
It is therefore in this context that we should locate the remarks made by Chief Justice Zondo. It is this lackadaisical approach by the other two branches of the state that prompted the wrath of the Chief Justice. His frustration echoes that of many South Africans who see the impact of this inaction in deteriorating socioeconomic conditions.
It must also be recognised that the Chief Justice has a responsibility to promote and strengthen the rule of law. Not only did State Capture undermine the rule of law, but the failure to address it further threatens it. Perhaps Zondo had, not just a responsibility, but a constitutional duty to speak out.
South Africa’s constitutional democracy was put to the sternest test by State Capture. Of the three branches of the state, only the judiciary emerged with its reputation intact. The presiding officers of Parliament should pause to reflect on that before they meet the Chief Justice this week. DM
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Good article. Thank you.
South Africa’s constitutional democracy was put to the sternest test by State Capture. Of the three branches of the state, only the judiciary emerged with its reputation intact.
Not true. The inept reputation of the other two branches remains inept!
Zondo is a South African hero
One day Zondo will be a statue.
Zondo has to reflect on the current process to destroy the institution of the Public Protector by the Section 194 Committee of the very useless parliament he pointed out. The tragic thing is that the judiciary is very much complicit in the process including the author of the article and the media. The inability to be able to look beyond the current holder of the office and blinded by loyalties to the individuals she made adverse findings against instead of looking at the very institution that has served the country than the thugs in that parliament. One has held no brief and one felt it was enough that courts set aside her findings. To actually create an atmosphere of fear in the Office of the Public Protector that the Executive must not be investigated by imposing punitive costs against the holder of the office in person, the judiciary may think that they are sending a message. The unintended consequences of the punitive costs is to create fear to investigate the President and the Executive. This is evidenced by Gcaleka and the Phala Phala report that seems to be buried by the inquiry. The worst thing for any person who is a democrat is the use of court judgements by the cheque collectors to impeach the Public Protector and the comments of the judges that were given without proper thought to their implications. We may have to undergo another revolution to deal with the issues that Zondo raised because what he was suggesting is not going to happen any time and in the future.
The piece by Cunningham Ngcukana shows a clear bias in favour of the current PP and appears to be suggesting that the PP is neither accountable to Parliament nor her decisions subject to review by the courts. The courts have indeed played a huge part in uncovering the political bias shown by the current PP which, in turn, has lead to the impeachment proceedings by Parliament. The efficacy of the PPs office as watchdog is perhaps best illustrated by a comparison between the previous and current PPs. Thuli Madonsela took on the political elite of the country without fear or favour. She did so mostly in a rational manner with her findings being legally defensible. She thus only lost a relatively small number of reviews in court. Busisiwe Mkhwebane on the other hand suffered an astonishingly large number of litigation setbacks. Her reports earned admonishments by various courts, which have labelled her as “incompetent”, “biased”, dishonest” and some of her reports as “irrational” and ‘flawed’ plus many more. Instead of instilling “fear”, these decisions are corrective and provide certainty in how the administrative functions of the PP should actually be carried out. They are also aimed at redressing those who have been wronged by incorrect/illegal decisions by the PP. The writer calls himself a “democrat”. How does he reconcile his self-assessed leaning with his attitude towards the courts? What about the rule of law?
One holds no brief for the Public Protector but I am concerned by the current process that is to destroy completely an institution and turn the Office of the Public Protector into the Office of the Government Protector like in the era of Lawrence Mushwana. I think that it is stupid to think the Section 194 Committee processes that are a kangaroo court are not consequential for the future of the Office of the Public Protector.
The future Public Protector would be cowed by the current process and
would fear the judiciary imposing punitive costs. Let us go to Judge Nicholson who was excoriated by the SCA Justice Harmse and his incompetence as a judge laid bare in the Zuma matter who has not been impeached. We go to Juge van Zyl in KZN who has reserved judgement for ten years and in another case for 4 years and yet the clown is still on the bench. The critical thing to me is the institution that Committee for whatever reasons wants to bury it by creating fear that once those that are having findings against them go to court the holder will have punitive costs and in addition their comments would be used by people who are calling themselves honourable but in reality should be called the horribles given their spectacular failure in holding the Executive to account. The destruction you can see with the Phala Phala report that is long over due. The concern is a matter of principle that we need to ensure that the institution works even after the current incumbent.
Indeed – the Phala Phala report is long overdue. ‘They’ are most likely protecting the anc president.
Parliament demands an urgent meeting to discuss their lack of urgency.
A perfect summary in 11 words!
The only damage to the PP’s office comes from the uncertainty arising from the Section 194 Committee not keeping control of the proceedings and completing it timeously and the costs heaping up – particularly if the PP walks away with all the benefits as well as the cost of her Stalingrad defence being covered.
Government operates from 3 bases, legislative, executive and regulatory. State capture seriously impinged on both the executive and regulatory. We can only expect change when there is major change in both the regulatory and executive arms! Just be patient!!!!
Clearly the problem lies with the ruling party. They have no intention to stop the pilfering. It is in their DNA.
Who would agree? Zondo or Madonsela for President of SA?
100% – either candidate would be my choice above anyone else in South Africa!
Sadly, neither would accept the position – their lives would be on the line.
Criminals run this country, State capture is already here….the Judiciary are hanging in by the skin of their teeth!
As much as I disagree with Cunningham Ngcukanas comments above, he is right, perhaps we need another Revolution, to burst from this current madness. But it should be a revolt by tax payers who are trying to keep this country afloat, whose contributions are being stolen by the politically connected and opportunists who have jumped on the bandwagon of fraud and corruption….. SARS, the SARB and the Judiciary are the only institutions propping us up – cutoff one of these legs and we are done! In my opinion!
Nothing is worth the paper it is written on unless good people implement that which is written,thank you for your courage Judge Raymond,I salute you.
As usual, the government just keeps on kicking the can down the road in the hope that the public will forget.
The ANC/EFF will keep no holding things back because every one of them is guilty of corruption or some type of working towards it or covering it up. Look at Eskom. The go for Andre de Ruiter and Jaap Burger and everything exposed is true , it was even reported to Sydney Mufamadi , but they would rather make these whistle blowers the guilty than go for the state destroyers