With a nation agog and tuned into what should have been to State Capture what the Truth and Reconciliation Commission was to the end of legal apartheid or what the Nuremberg trials were to the Holocaust, the Zondo Commission ended up being a day of lawyers and of the boring minutiae of a legal process.
Of course, a judicial commission of inquiry is an instrument of law and a body of the Constitution, but deputy chief justice Raymond Zondo failed to capitalise on the ample powers he has been given to grab looters and to shake them upside down.
He could have done this by ensuring that the first day started with a bang of testimony that told the story of State Capture: he has witnesses ready to come forward and these include the former deputy minister of finance Mcebisi Jonas and the former ANC MP Vytjie Mentor, both of whom were offered Cabinet positions during visits to the Gupta mansion in Saxonwold, Johannesburg.
They have told their story before, but to have opened with one or both of these leaders offering their testimony to a deputy chief justice of South Africa would have given the inquiry’s first day the gravitas and drama necessary to show that the country is serious about accountability and justice against State Capture.
Instead, this vital process started with Judge Zondo complaining about money (the commission has repeatedly complained about its budget) and about security clearances for its investigators (the State Security Agency says that of 77 clearances sought, 98% had been cleared. The rest are in the works).
It was a day where a massive opportunity was lost as public interest rapidly waned under the welter of a legal process. The head of the legal team, Paul Pretorius, is an agile lawyer, but the court wizard he is not, so his presentation of almost 90 minutes was detailed but ultimately laborious. It holds promise, but on the opening day of such a historic occasion, too much detail was always going to lose the impact of the greater message.
To see how it should be done, take a look in the direction of the commission of inquiry into tax administration at the South African Revenue Service which resumes this week. There, retired Judge Robert Nugent started his work in a room at SARS headquarters and used the auditorium for the hearing (the State Capture inquiry spent long months looking for and then titivating a headquarters in Johannesburg) and kicked it off with a detailed account by Public Enterprises Minister Pravin Gordhan.
Gordhan is to State Capture today what former Public Protector Thuli Madonsela was until she ended her term: the nemesis and the face of the fight against grand corruption. By starting with Gordhan, Nugent got the national lens focused on tax administration, not the nation’s most riveting topic but a vital one. For the rest of the opening session, Nugent ensured that the choreography of the first week told the story of the devastation of SARS by allowing his evidence leaders to stack up story after story.
By the end of the first week, Judge Nugent had a big bunfight on his hands when the EFF chairperson Dali Mpofu belatedly sought to intervene on behalf of his client, the suspended SARS Commissioner Tom Moyane.
Nugent got into some trouble for having met Gordhan previously but even that kerfuffle kept the public riveted. I know that a judicial commission of inquiry is not a movie house where popcorn is given out to keep a riveted audience glued to the screen. There will be moments of laborious legal detail essential to secure the convictions which must arise from the judicial commission into the decade of South Africa’s dalliance with high kleptocracy, but the first day was not that day. It was a missed opportunity. DM