I neither propose to be an expert on the Judicial Commission of Inquiry into Allegations of State Capture (the Zondo commission) nor do I have blind loyalty to it, despite my previous writings on the subject (see here, here, here, here, here and here, for example). But I am of the strong view that if individuals or organisations called before the commission are allowed to dictate or censor who is called to give testimony, or how they should be cross-examined by the commission’s legal representatives, then the whole point of having the commission in the first place is lost.
The latest example is the often defensive and hot-headed performance of Public Enterprises Minister Pravin Gordhan, which did little to endear him as the innocent darling of the public, and some influential people like EFF leader Julius Malema calling on President Cyril Ramaphosa to sack him.
Similarly, direct or indirect threats to the commission or unwarranted attack on officials of the commission, together with the disclosing of names of protected witnesses of the commission, should not be permitted.
Talking of threats, reports are that the leader of the Jacob Zuma-aligned Umkhonto weSizwe Military Veterans’ Association (MKMVA), Kebby Maphatsoe, hinted at a possible coup against the government of President Ramaphosa should former president Zuma be arrested for contempt of the commission.
“In other countries, it happened that there were coups,” he said. This should not only be seen as incitement to the highest crime against the republic, extorting Ramaphosa to make some concessions with regard to keeping former president Zuma out of the path of the State Capture storm – or perhaps even set the foundation for immunity from prosecution for the former president. Further, it constitutes an indirect threat to the Zondo commission, designed to ensure that the inquiry is almost certain to fail.
If that happens, the alleged acts of impropriety will never see the doorsteps of the courtroom or will take a protracted journey to the courtroom. Another person may argue that in any event, the information which has emerged from the Zondo commission will merely be the basis for the recommendations to be made in Justice Raymond Zondo’s report. Still, this does not justify any amount of threats or heel-digging to nail the commission to the ground and have the work done so far discarded as useless.
The German proverbial expression “das Kind mit dem Bade ausschütten”, which became the English “don’t throw the baby out with the bathwater”, perhaps best encapsulates the correct response to calls for the Zondo commission to be canned. For those who suffer from selective bias or have forgotten what it means, be reminded that it is an idiomatic expression and a concept suggesting an avoidable error in which something good is discarded when trying to get rid of something deemed bad. Put differently, it is about rejecting the essential along with the inessential.
In the context of the anti-Zondo commission, if those averse to the commission succeed in getting rid of it before its report is released or after it has been released, that will be like throwing out the commission as the baby and keeping the bathwater of State Capture and other corrupt practices.
Yes, the quality of the evidence that is elicited by the commission casts doubt on the effectiveness of the commission as a fact-finding judicial forum. The amount spent on the commission so far compared with other commissions, and the minuscule prosecutions started which are directly linked to evidence before the commission, also raises major concerns not only with the sustainability of such costs, but also with regard to the value-add of the commission.
It is a fact that the Zondo commission is the most expensive judicial investigation in the history of democratic South Africa when one compares its cost with that of Judge Robert Nugent’s SA Revenue Service investigation; the Public Investment Corporation inquiry; Justice Yvonne Mokgoro’s probe into former prosecutions boss Nomgcobo Jiba’s fitness to hold office; and Judge Ian Farlam’s inquiry into the Marikana massacre, with a combined reported bill of R363-million.
Elsewhere you have commissions like the Liberhan commission in India that took 17 years and 48 extensions for the probing of the 1992 demolition of the Babri Masjid in Ayodhya to the submission of the report in June 2020. It cost the Indian government the equivalent R14,591,524. Interesting in the Liberhan commission recommendations is the revelation of how witnesses sabotaged the obtaining of evidence when “witnesses repeated well-rehearsed stories and evaded cross-examination by pleading a sudden loss of memory or lack of knowledge” and leaders “who were neither guided by any ideology nor imbued with any dogma nor restrained by any moral trepidation” attempting to use it as their road to success to being seen as powerful and untouchable. These included the chief minister and ministers.
As in South Africa, the gross illegality and impropriety that people were guilty of was ignored.
In the long run, the Zondo commission will prove to be of unprecedented value to the South African criminal justice system and good governance. Below is what I consider the highlights of some of the values that should not be ignored or tossed out of the discourse regarding the continued existence of the commission:
- The commission so far has exposed or received some actual information of the appropriation of state institutions, organs and functions by individuals or groups;
- The public now has a good sense of how grand corruption runs in the veins of the South African government. In pre-Zondo commission and perhaps pre-Madonsela State Capture Report days, the existence of corruption was widely known but the extent of its tentacles and modes of operation were not fully evident. Shamefully, I must add, the Prevention and Combating of Corruption Act as a legislative framework that criminalises corruption in public and private sectors, including attempted corruption, extortion, active and passive bribery, bribing a foreign public official, fraud, and money laundering, obliging public officials to report corrupt activities, remains largely implemented only against ordinary members of society. Some politicians and the politically connected are under the illusion that they have unwritten immunity from the ambit of the act;
- Some testimony given at the commission has pointed to the need for reform of the structure, procedures and efficiency of the criminal justice system and public administration in South Africa;
- The commission testimony also revealed that there are many powerful opponents of reform and that influential institutions and individuals resist any interference with their privileges. There is prima facie evidence that acts of corruption and deliberate weakening of constitutional government and repurposing of constitutional state structures is alive and well in South Africa;
- The government, with the modus operandi of a laissez-faire attitude to governance unencumbered by legal, constitutional, or moral constraints, has been exposed and more is to come. Sober and sound-minded members of the public are now aware of the government with little political will to change the status quo – a government which at times had its entire Parliament applauding corrupt activities, or colluded for their continued existence through denying implementation of accountability and rubbishing reports of former public protector Thuli Madonsela. Also, the public is now more informed about the law enforcement authority that was not ashamed when through its police minister it called a normal swimming pool a “fire pool”, and which saw itself as an extension of the governing political party (see here and here);
- It is through the Zondo commission that it is in the open for everyone to see that there has been blatant use and abuse of political patronage and that the obligations of ministerial responsibility and accountability were patently disregarded; and
- Last, it became very clear that there are, and/or maybe are, many reports in existence – some from internal or external forensic investigations – in cupboards of the different state-owned enterprises that may have remained hidden from the public with some turning into dead letters.
As a society, setting aside political affiliations, we cannot afford to allow a situation where justice, law and order are subordinated to political machinations and individual survival. We cannot allow a situation where little attention is given to governance and more regard accorded to the longevity of those governing.
If our leaders have any sense of allegiance to the Constitution of the Republic of South Africa, then they should understand that one of its pillars – so painfully expounded at the Truth and Reconciliation Commission – is accountability and the truth. Truth is a virtue that underscores the Zondo commission, which virtue is grounded in the immanentist account of truth.
As we deal with the Zondo commission, let us remember to keep what is essential and only throw away what is inessential. The unique advantages that dealing with State Capture offers our constitutional democracy and the law enforcement agencies, and the distinct advantages it offers for the governance and the rule of law, should never be taken for granted.
Ponder on this quote and its relevance to any attempts to shut down the Zondo commission: “Is the wasteland that South Africa will become really the future that you want to bestow on your children?” the late president Nelson Mandela reportedly said to General Constand Viljoen, the late former chief of the South African Defence Force, and founder leader of the Freedom Front, who like the MKMVA threatened a coup because “the ANC was not sympathetic to the idea of Afrikaner self-determination”. DM