Don’t hold your breath waiting for State Capture culprits to end up in orange overalls

Don’t hold your breath waiting for State Capture culprits to end up in orange overalls
Illustrative image: Former Public Protector Thuli Madonsela on 5 May 2024 (Photo: Gallo Images / Jeffrey Abrahams) | The late Archbishop Desmond Tutu. (Photo: Gallo Images / Oryx Media Archive) | Former president Jacob Zuma on 16 December 2023. (Photo: Ihsaan Haffejee / AFP) | Former SARS commissioner Tom Moyane. (Photo: Leila Dee Dougan) | Schabir Shaik on 13 October 2004. (Photo: Reuters / Stringer) | Former police Crime Intelligence boss Richard Mdluli. (Photo: Gallo Images / Sowetan / Veli Nhlapo) | Bain & Company logo. (Photo: Wikipedia | Unsplash) | South African police check the bodies of striking mineworkers shot dead at the Wonderkop informal settlement near the Marikana platinum mine in Rustenburg on 16 August 2012. (Photo: EPA / STR)

The State Capture saga is far from over. But South Africans must accept that commissions of inquiry, like the Zondo Commission, are only the precursor to accountability, a process that is likely to occupy successive future administrations.

South Africa’s response to scandal and public tragedy is traditionally marked by the establishment of a commission of inquiry.

The State Capture Commission cost just over R1-billion with no sign yet of any significant criminal convictions stemming from it, begging the question: Was it worth it? 

Consider that South Africa’s multibillion-rand Arms Deal goes back to 1999, that a commission of inquiry was set up in 2011 (a whitewash, with its findings later set aside in court) and yet the battle to give former president Jacob Zuma his day in court to answer to charges relating to the deal was still subject to litigation until Wednesday, 15 May 2024, when the High Court in Pietermaritzburg finally set a trial date.

Similarly, more than a decade after the Marikana massacre and nine years since the National Prosecuting Authority (NPA) was handed a docket of 72 cases, there is still no sign of a single successful prosecution for the events that led to the killing of 34 miners and several police officers in August 2012.

These are among several key truths set out in a new report titled, Commissions, Corruption and State Capture: Charting the Way Forward, published by the South African Institute of International Affairs (SAIIA).

The report cautions that comeuppance about State Capture will not happen overnight and that the mechanics to ensure accountability is a job that is likely to stretch into future administrations.

With less than a fortnight before the national elections, this is something that might suit senior politicians who made it onto the ANC election candidate list regardless of allegations before the commission. 

Researchers Judith February and Sanan Mirzoyev conclude that regardless of how the public opt to view the purpose of a commission, accountability is not confined to the life of that commission. 

In fact, accountability, they say, exists largely outside of a commission’s bounds.

“Now that the facts [in the State Capture case] have been placed on public record, the real work of accountability and reform has been put at centre stage.”

Quick fact

For more than three years, from August 2018 to December 2021, the State Capture Commission held public hearings into allegations of corruption in the public sector. In April 2022, just over two years ago, Justice Raymond Zondo handed the full report — 5,437 pages over six parts and 16 volumes — to President Cyril Ramaphosa. 

Its outcomes, along with that of previous commissions and associated legal processes, have proven vital in bolstering the fight against corruption, either through recommendations for policy or structural reforms or through enabling court orders.

The SAIIA report, released on Wednesday provides vital insights into the broader gains of the State Capture Commission, but emphasises the need for action to ensure that the commission’s recommendations ultimately pay off. 

Uniquely, the report casts a lens over the commission chaired by now Chief Justice Raymond Zondo, and several others that are intrinsically linked to the events of State Capture. 

Those include the Seriti Commission into the Arms Deal; the Nugent Commission into tax and governance at the South African Revenue Service; and the Mokgoro inquiry that allowed for the removal from office of the deputy directors of public prosecutions, Nomgcobo Jiba and Lawrence Mrwebi; as well as the Mpati Commission into allegations of impropriety at the Public Investment Corporation (PIC).

This approach by the researchers provides a remarkably consolidated picture of the State Capture project. It connects the dots from the very early days of democracy and the government’s arms acquisition programme, through to the disturbing events and characters that marked the Zuma years across state security, law enforcement, public procurement, and cadre deployment.

Nearly 30 years of commissions

Typically, commissions are set up to investigate or advise on matters of significant public interest, including crises, disasters, scandals or when the usual administrative mechanisms cannot adequately address an issue. 

In principle, its findings establish an official, factual position for the state and recommendations are used to help reshape policies and laws to prevent a recurrence, and provide a stimulus for law enforcement to initiate criminal prosecutions or civil recoveries, the report states.

“South Africa’s fledgling democracy has seen its fair share of commissions over a period of nearly three decades. At the outset, they were used as an instrument in society’s attempts to come to grips with the realities and horrors of its apartheid past through the Truth and Reconciliation Commission (TRC),” the SAIIA report says.

However, critiques of commissions include that they may allow corrupt or incompetent politicians to divert attention from their actions, hoping that investigative delays will make the public forget their wrongdoing. 

More dubiously, it could be argued that a commission might also serve as a vehicle to deflect accountability, sealing off a particularly sensitive issue and giving the public an impression of progress until interest eventually wanes. 

The Farlam Commission into the 2012 Marikana massacre illustrates this point.

The main effect of this commission was that it served as a forum through which the events that happened at Marikana could be ventilated in public. 

However, apart from reparations and reprimands, the fact that no individual accountability has been achieved more than a decade later, suggests that it practically served as a vehicle with which to assuage public ire until public interest in the matter subsided, the report states. 

The Arms Deal commission under Judge Willie Seriti falls within a very different spectrum. After sitting for four years and receiving huge volumes of technical evidence, when the commission concluded in 2016, Seriti incredibly found that there was no evidence of corruption in the deal. 

This was even though Zuma’s former pal Schabir Shaik had been convicted of corruption relating to, among other things, peddling political influence for the arms company Thales, which was one of the contracting firms. The report was taken on review and in 2019 the high court found that the Seriti Commission had “failed manifestly” to inquire into key issues as is to be expected of a reasonable commission.

President Cyril Ramaphosa arrived in office on an anti-corruption ticket and armed with the Public Protector’s remedial action for the establishment of the State Capture Commission. This presented his administration with a unique opportunity to re-establish political legitimacy.

“State Capture could be neatly packaged into an event or a fixed period of time that had both a start and a finish,” the report states.

While Ramaphosa could not take credit for setting up the Zondo Commission, he did establish several others (Nugent, Mpati and Mokgoro) that are closely tied to the State Capture project.

And while his ambitious political objective was to position the ANC as the rehabilitator of wrongdoing that it itself had enabled or facilitated, Ramaphosa, to succeed, had to follow a markedly different approach to his predecessor. He did this in at least four different ways, the report states:

  • Decisions would come to be made based on evidence flowing from the commissions, and not grand conspiracies;
  • Decisions would be based on the recommendations of reputable or credible external parties and in this way Ramaphosa’s decisions would have public legitimacy;
  • Ramaphosa’s process of ANC reinvention had to play out before the public eye;
  • As a billionaire, Ramaphosa would have an easier time convincing the public that there were no financial incentives behind his political ambitions.

“The public nature of Ramaphosa’s decision-making stood in stark contrast to Zuma’s process, which involved making decisions behind closed doors. State Capture Commission evidence pointed out that those closed doors were typically situated on the Gupta family’s Saxonwold estate,” the report says.

Now, just like the R50-billion that the Gupta wave of State Capture is said to have cost South Africa, the facts and severity of all allegations of wrongdoing presented during the State Capture inquiry are a matter of public record.

They are firmly captured in the voluminous 5,437-page report that flows from the commission’s work.  

“It is now time to reflect on the work that the commission has done and consider how those findings and recommendations can be used to bring about substantive accountability and social change,” the SAIIA report states.

In the end, the Zondo Commission provided South Africa with scope for accountability, the public had a front-row seat and law enforcement was handed a blueprint to inform its plans for criminal prosecutions. 

It also addressed the need for wide-ranging reforms covering public procurement, the controversial ANC policy of cadre deployment and professionalisation of the public service, whistle-blower protection, and the creation of new criminal offences.

But for now, little has come of Zondo’s 202 recommendations for investigations and prosecutions of implicated individuals and entities, and only time will tell if interventions flowing from the commission are successful, the report states.

“However, in the shorter-term aftermath of the various commissions (including Zondo), there has been a dearth of accountability and discernible action to appease an increasingly disheartened public.” DM


Comments - Please in order to comment.

  • Arno Stijlen says:

    I for one was never fooled and always of the opinion that nothing was ever going to happen to bring all these corrupt role players to justice! Commissions of enquiry is a total waste of time and money and only there as a ‘show’ to the South African population that government is serious about doing something about it and bringing those responsible to book. The Gupta sham is a perfect example of this. Ongoing extradition requests etc., knowing very well that they do not want those corrupt brothers back into the country to stand trail as it would expose all of the lies and corrupt activities of those in power at the time. It’s much ‘safer’ to keep them in Dubai!

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