Opinionista Omphemetse S Sibanda 13 January 2020

Rushing the work of the Zondo commission would be a mistake

The Zondo Commission of Inquiry into State Capture can learn some important lessons from the 1987 commission of inquiry into police misconduct in Queensland, Australia.

The application to the high court by Deputy Chief Justice Raymond Zondo to be granted a further extension to the term of the State Capture inquiry has once again focused attention on the utility of the Zondo commission, alongside its limitations. The Deputy Chief Justice has painstakingly argued the need for the extension of the term.

If the relief sought is not granted by the end of February 2020, this will mean that the objectives underlying the commission and its work will be rendered nugatory,” declared Justice Zondo in his affidavit to the court.

Justice Zondo is of the view that a further 10-month extension will be sufficient if the commission’s proceedings are streamlined by focusing on the original issues listed by former public protector Thuli Madonsela in the 2016 State Capture Reportand issues that may fall outside the Madonsela list, “but within the commission’s terms of reference that I consider appropriate to be dealt with by the commission,” stated the Deputy Chief Justice. The other issues will be left for the other law enforcement agencies to deal with, or another inquiry.

The turn of events was unexpected. What has just happened? Are the Deputy Chief Justice and his crew falling apart under the weight of State Capture? Or has the commission suddenly realised that it has neither the capacity nor the ability to deal with all the issues listed in the revised terms of reference.

I would like to draw parallels with the 1987 Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct in Queensland, Australia, chaired by Tony Fitzgerald QC. The Fitzgerald inquiry was originally given a limited mandate.

In what many may regard as an attempted whitewash and deliberate attempt to ease the pressure on the ruling government, the Fitzgerald inquiry was given a lifespan of only six weeks to investigate alleged criminality within the police. But through the ingenuity of Fitzgerald as chairperson, the mandate was extended to cover police corruption after it became clear from the substantive sitting in the six months that there was more to it than met the eye. Ultimately, the Fitzgerald commission took two years to complete.

Despite its unexpectedly long duration, the Fitzgerald inquiry paid dividends for several reasons:

First, the public nature of the hearing disgraced those involved and the impact of the exposure was akin to that of a criminal trial.

Second, the Fitzgerald inquiry netted major high-profile prosecution even though it took some time to get to the “big fish”. Ultimately, four ministers were jailed because of the Fitzgerald inquiry and several police officers were convicted. Notable was the conviction and imprisonment of former Police Commissioner Sir Terence Lewis for corruption, and the charging of former premier Sir Joh Bjelke-Petersen with perjury for evidence he presented at the inquiry. The prime minister survived because of a hung jury, but the damage was done because it led to the inevitable fall of his National Party.

Third, the Fitzgerald report recommended, among other things, the establishment of the Criminal Justice Commission (CJC) and reform of the Queensland Police Force as part of the more than 100 recommendations.

Of course, one should be mindful that perhaps compared with the Zondo commission, the Fitzgerald inquiry enjoyed much wider support and powers. For instance, issues of police secrecy, government secrecy and privilege were suspended, and the inquiry had unrestricted access to the Queensland Police Department, Cabinet minutes, and other associated government material with no exceptions. Queensland was so committed to ridding itself of the identified ills that regulatory and legislative changes were made to make it possible for sitting and former ministers to testify before the Fitzgerald inquiry. It was generally an explosive and sensitive process.

Such a process is difficult to stop or control, and there are several potential consequences which must be carefully watched. Temporary trauma and disorder are inevitable. During this trauma and disorder, institutions can be damaged and individuals harmed. Expectations can be created which cannot be fulfilled, and this can lead to community disappointment and cynicism,” noted the Fitzgerald inquiry report. I need once more to quote verbatim from the Fitzgerald report, hoping that the Zondo commission and the general public take serious note:

The shock, panic and anger which follow an Inquiry such as this can produce over-reactions which unnecessarily disturb traditional systems and values, including civil rights. Great care needs to be taken to avoid such over-reaction. On the other hand, vested interests can respond with superficial, piecemeal measures which are worse than futile because they achieve nothing but a deceptive appearance of change. They help vested interests to avoid and subvert real reform while creating a new, attractive but hollow facade to hide the continuing misuse of power and misconduct. The facade may indeed be a more effective disguise because it allays community concerns.” [Fitzgerald inquiry report, p4].

Another interesting excerpt from the Fitzgerald report is the explication by the chairperson that “the selfish and corrupt are infinitely flexible in their ability to adapt and work around new regulatory structures. They will seek to manipulate and exploit laws and institutions, whatever changes are made. It is a common feature of public administration that laws and structures are used and referred to merely to excuse inertia and neutralise criticism”. Does this ring true for the South African State Capture inquiry?

Like the Zondo commission, the Fitzgerald inquiry decided to end the proceedings when a lot still needed to be said. But it was not easy. It was a well-considered decision taken after ensuring that “evidence was called which exposed a cross-section of the misconduct which had occurred and its causes, rather than an exhaustive appraisal of the role of individuals”. The Fitzgerald inquiry, faced with having to deal with overwhelming problems, was hard-pressed to provide urgently needed solutions in the form of recommendations.

Having drawn the above parallel, I would like to explore some argumentation regarding the continued need of the Zondo Commission of Inquiry. Writing in Daily Maverick, Rebecca Davis recently raised some pertinent concerns regarding the extension of the lifespan of the commission. She queried if all the “labour and money” put into the Zondo commission “will be worth the results”? and observed that no arrest has been made “as a result of evidence heard by the commission”. It is not my intention to decipher in-depth opinions of all commentators on the Zondo commission. However, I found the following argumentations and/or observations worth speaking to:

1. “…Will all this labour and money be worth the results?” asked Davis:

It is still my view, as previously argued, that all the resources put into the inquiry will be worth the results, of course subject to how the commission unfolds and the value of the report that will come out of it. High costs and the lack of high-profile arrests have led to doubts being expressed over the utility of the Zondo commission. In the words of Ferial Haffajee, we are yet to get to the situation where one can say that caught in the Zondo Commission of Inquiry is one of the “big fish” from the “most captured”. Notable, according to Davis, is ANC Secretary-General Ace Magashule, “implicated in several different – extremely serious – capacities at the inquiry”.

Be that as it may, I do believe that some significant prosecution directly or indirectly linked to the testimony given at the commission is still to come; though too slow for my liking as well. A kind of quasi-sequential investigation is unfolding at the Zondo commission in the almost similar approach used by the Fitzgerald inquiry. The small fish are continuing to sing before the Zondo commission, and they are helping build the net around the big fish.

However, the difference between South Africa and Queensland is that by the time the final Fitzgerald inquiry report was presented, the Office of the Special Prosecutor had secured the prosecution and conviction of some people, and laid numerous charges against others. Nothing prevents the NPA from prioritising the investigation and prosecuting some of the alleged criminality exposed before the Zondo commission before the expiry of its extended term.

2. “After the commission terms of reference were amended, evidence brought before the inquiry can be used in subsequent criminal proceedings. But – a major but – the commission is allowed to admit evidence which would not be permissible at a criminal trial. One such type of evidence is hearsay, a common feature of the transcripts of the commission proceedings thus far. As an example: former GCIS head Themba Maseko testified that deceased minister Collins Chabane told him that former president Jacob Zuma had instructed him to remove Maseko from his position. With Chabane unable to confirm or deny this account from the grave, this evidence would almost certainly be inadmissible in court”, wrote Rebecca Davis.

It is true that a case built on hearsay evidence is like a house built on a sinkhole. Hearsay evidence is generally inadmissible. But I would not go as far as saying that hearsay before the Zondo commission “would almost certainly be inadmissible in court”. Section 3 of the Law of Evidence Amendment Act 45 of 1988 provides a typology of exceptions to the Rule Against Hearsay Evidence that can be used to ensure the utility of hearsay evidence presented before the Zondo commission.

Using the late Minister Chabane’s example provided above, the Zondo commission may be guided by section 3(c) of the Law of Evidence Amendment Act in deciding whether or not to use the evidence in its final report, by having regard to the nature of the proceedings; the nature of the evidence; the purpose for which the evidence is tendered; the probative value of the evidence; the reason why the evidence is not given by the person upon whose credibility the probative value of such evidence depends – which in the case of Maseko’s testimony will be because Minister Chabane is now deceased; any prejudice to a party which the admission of such evidence might entail; and most importantly is whether admitting or not admitting such evidence would be in the interests of justice.

Davis highlighted the keen interest that Justice Zondo has developed in State Capture, including the learned Justice Zondo trying to understand “the precise aetiology and symptoms of this political malaise”. The multidirectional approach embraced by Justice Zondo is critical in understanding State Capture and the reach of its tentacles. You cannot get the same result from the single approach found in mainstream criminal prosecutions under the auspices of the NPA.

Of course, there may be some issues with the operational design of the Zondo commission. One of the sticking points is that the establishment of the commission is based on the Commissions Act that is itself fundamentally flawed. A cursory look at the act reveals that it has loopholes.

One particular such loophole is the non-coverage of the relationship between the commissions, the courts and the NPA. There is nothing, in my view, however, that prevented the articulation of the terms of reference of the Zondo commission from clarifying such a relationship. The nature of such a relationship can be varied including, for example, the investigative and prosecution co-operation relationship approach, or the “mandate ouster” relationship approach.

The Fitzgerald inquiry, for example, was undergirded by commissions of inquiry legislation that expressly barred any court, tribunal, justice or other person (other than the Supreme Court or other than a judge of the Supreme Court) to have jurisdiction over and to “not make, continue or proceed with that inquiry there into” once the commission is seized with the jurisdiction.

In conclusion, I strongly believe that justice rushed is justice denied, and that justice delayed is not always justice denied. Unfortunately, the Zondo commission is considering reverting to the original scope set out by former public protector Thuli Madonsela in the 2016 State Capture Report to achieve quick results. DM

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