Former Chief Justice Raymond Zondo. (Photo: Gallo Images / Sowetan / Veli Nhlapo) 
This year marks nine years since advocate Thuli Madonsela released the “State of Capture” report and three years since the “State Capture Commission” came to an end. R1-billion was spent on the State Capture Commission, yet we still have no significant progress in addressing State Capture cases.
What we do have is multiple excuses from institutions tasked with implementing the commission’s findings and recommendations. The Civil Society Working Group on State Capture has been tracking the implementation of the findings of the commission, and what we have found is a generally lacklustre approach to addressing State Capture.
How can we expect corruption and State Capture to be eradicated if we are failing to implement the most basic of recommendations that were set out in the commission’s report?
The Zondo Commission
The Zondo Commission, led by Former Chief Justice Raymond Zondo, was a commission of inquiry into allegations of State Capture, corruption and fraud in the public sector, including organs of State. It came about from the findings of former public protector Madonsela, who looked into allegations of crooked appointments of Cabinet ministers, directors and awarding of state contracts and other benefits.
Her key recommendation was the appointment of a judicial commission of inquiry headed by a judge. The terms of reference of the Zondo Commission were very broad in scope, with the commission being appointed to investigate matters of public interest concerning allegations of State Capture, corruption and fraud.
The commission found that State Capture did indeed take place between 2009-2018, the so-called “nine wasted years” of the Jacob Zuma administration. The commission made extensive recommendations, some specific and focused and others much broader and far-reaching, including recommendations for the investigation and potential prosecution of some individuals and reform of various government processes and institutions.
Read more: Civil society on what Zondo Commission and State Capture report got right and wrong
During this year’s State of the Nation Address, President Cyril Ramaphosa revealed some of the progress being made in addressing State Capture. According to Ramaphosa’s address, the SIU and Asset Forfeiture Unit had recovered R10-billion in State Capture-related cases.
Ramaphosa also said that Parliament would introduce two key pieces of legislation relating to State Capture, one on combating money laundering and the other on protecting whistle-blowers.
What is being done to ensure State Capture is addressed?
Asset Recoveries
The commission recommended coordinated action from various law enforcement entities including the Asset Forfeiture Unit (AFU), the Independent Police Investigate Directorate (Ipid), the Hawks, the Financial Intelligence Centre, South African Revenue Service (Sars), Reserve Bank, and the Special Investigating Unit (SIU) to achieve the recovery of monies lost to State Capture.
The progress in recoveries is very slow – only R10-billion has been recovered from State Capture investigations. The money that the state spent that was tainted by State Capture amounted to R57-billion, with Eskom and Transnet’s fraudulent contracts making up the biggest chunk.
Of this money, the Guptas received R15-billion. Some estimate that the true cost of State Capture and corruption during that period is in fact R500-billion. So the recoveries are a really small fraction of the cost of State Capture and corruption.
Combating money laundering
At the end of 2022, Parliament passed the General Laws (Anti-Money Laundering and Combating Terrorism Financing) Amendment Act, to avoid the “greylisting” of South Africa by the Financial Action Task Force (FATF). This was an important move toward ensuring financial transparency.
However, the challenge is ensuring the beneficial ownership register is functional, accurate and accessible. This year, the President said South Africa would strengthen the legislation with further legislative and systemic improvements. It should include these elements.
Whistle-blower protection
Most of the evidence from the Zondo Commission came from whistle-blowers, and the commission was very clear in its recommendations relating to whistle-blowers, detailed in Part I Volume 4. However, to date, the whistle-blower legislation framework remains incomplete.
In July 2023, the Department of Justice released a discussion document outlining proposed reforms. While the document includes several commendable proposals aligned with the Zondo Commission recommendations and civil society submissions, it fails to consolidate the existing complex and inconsistent legal framework, which remains a major obstacle for whistle-blowers.
Additionally, it dismisses the idea of offering incentives to whistle-blowers. Civil society has argued that the proposed legislation is inadequate, and the outcome of the legislation to be introduced remains uncertain.
Parliament
The commission highlighted how parliamentarians failed in their duty to hold the executive accountable and prevent State Capture. Despite the commission’s damning findings, MPs continue to neglect their responsibilities, prioritising party loyalty over the public good.
Once again, we see most MPs not implementing the commission’s recommendations and essentially not recognising the importance of the process to strengthen democracy. Many seem unaware that they play an important oversight role over the Presidency and the appointment to SOEs and legislative reform.
Outa has closely monitored parliamentary activities and believes that Parliament’s ongoing failure to combat State Capture and entrenched corruption remains a major threat to democracy. Some of the accused in the State Capture Commission, like Lucky Montana, Brian Molefe and Siyabonga Gama, are serving as MPs in Parliament for the uMkhonto Wesizwe party.
Cedric Frolick, David Mahlobo and Malusi Gigaba serve as MPs for the African National Congress (ANC). These MPs oversee the institutions they are accused of collapsing and oversee the implementation of the Zondo Commission recommendations. Only a small number, such as Zizi Kodwa, have been held accountable, though with limited consequences.
Read more: ‘Reimagining of Parliament’ thwarted by patchy application of State Capture report proposals
Criminal Justice System (National Prosecutions Authority)
Most of the recommendations of the Zondo Commission were for further investigations and prosecutions. No high-profile politician or corporation has been successfully prosecuted. Even with enough evidence, the NPA has failed to prosecute major State Capture cases like Prasa, Transnet and Eskom.
Moreover, the collapse of the extradition of the Gupta brothers and the implosion of the Nulane case raise serious concerns around the NPA’s effectiveness in handling State Capture cases. The bungling of high-profile State Capture cases is unfortunate, because it shows that elites can get away with impunity because the state is failing.
Read more: NPA secures major State Capture win: Gupta associates and Free State officials face retrial
What should we be doing?
Without fully addressing State Capture at all levels, we continue a cycle of establishing commissions of inquiry without making the systemic change needed for non-repetition. We need to ensure that State Capture is fully addressed. For this to happen, all state parties need to come on board and do their part.
As for civil society, we will continue to apply pressure to state institutions and corporations to take accountability and redress their role in State Capture. The Civil Society Working Group on State Capture will continue tracking the implementation of Justice Zondo’s recommendations, and we will be coordinating campaigns on whistle-blower legislation and keeping an eye on the upcoming NDPP appointment process.
We simply cannot afford another nine wasted years. We need to spotlight the anniversary of the Zondo Commission to track the progress of State Capture and to keep the conversation concerning State Capture on the national agenda.
The true impact and cost of State Capture will never be understood. Its severe impact will continue to be felt by the most vulnerable in our society for years to come. The Zondo Commission provides a valuable framework to eradicate State Capture, and we ought to begin implementing its recommendations now. DM
Letlhogonolo Letshele is a campaigner at Open Secrets and represents Open Secrets and the Civil Society Working Group on State Capture.
Open Secrets is a non-profit organisation which exposes and builds accountability for private-sector economic crimes through investigative research, advocacy and the law. To support our work, including the investigations that go into the Unaccountable series, visit Support Open Secrets.
Read more profiles from the Unaccountable series here
