Opinionista Brett Herron 23 February 2021

The Zondo Commission’s findings must not be allowed to go the way of the TRC’s and gather dust

The Truth and Reconciliation Commission made strong findings and recommendations about the prosecution of apartheid-era crimes such as the murder of the Cradock Four. But very little has happened since. Will the same happen to the Zondo Commission’s findings, and for similar reasons?

The Zondo Commission of Inquiry is in danger of heading down the same road as South Africa’s Truth and Reconciliation Commission.

The TRC hearings in the 1990s captured the nation’s attention. But the commission’s detailed recommendations on requirements to complete its work of accountability, reconciliation and redress were largely ignored by the state.

Perpetrators of apartheid-era crimes who thumbed their noses at the commission, declining the opportunity to apply for amnesty, were not prosecuted — and nor were those who did apply, but did not qualify. The wealth tax the commission proposed to begin to narrow the gap between rich and poor citizens was not implemented. Recommended reparations were only partially applied.

As a consequence of these deliberate omissions by the state — I use the term “deliberate” because evidence has subsequently emerged that prosecutors were instructed not to prosecute those on the TRC’s list — many South Africans consider the commission to have failed in its task.

Why did the state choose to ignore the truth commission’s recommendations?

There are many conspiracy theories, including an alleged shady deal of non-prosecutions by the ANC-led government in exchange for former apartheid operatives’ silence on matters that would compromise ANC integrity.

Perhaps that is partially true. But the most likely reason for the state’s virtual disavowal of the TRC process was that the commission trod on the ANC’s toes. Its final report included findings of human rights violations by the ANC — relatively insignificant when weighed against those in respect of the apartheid government, of course, but sufficient to throw the ANC into a tizz.

The ruling party rushed to court to try to block the publication of the report, and lost. So the report was published, but few of the recommendations have seen the light of day.

The Zondo Commission hearings have also captured the attention of the nation. Here are some other similarities to the TRC:

  • Powers — like the truth commission, the commission on State Capture scrutinises evidence, some publicly, and is expected to arrive at conclusions and make recommendations to the state. It is expected that the recommendations will include further investigations with a view to prosecutions, as the TRC’s did;
  • Muscle — both commissions have arm-wrestled with former presidents to get them to submit to questions. Both former presidents were/are considered very important witnesses, as the subject matter under scrutiny coincides with their periods in office. The truth commission ultimately failed to corral PW Botha, despite taking him to court. Perhaps former president Jacob Zuma will still surprise the commission, but he’s said he’d rather go to prison than appear before Judge Zondo; and
  • Anticipated outcomes — the ruling party anticipated that the TRC would limit itself to damning the apartheid government. Now, the ruling party anticipates that the Zondo Commission will limit itself to damning integrity breaches committed by forces aligned to Zuma.

But there are signs that Judge Zondo will find it very difficult to avoid making findings that the ANC will find hard to stomach.

The third point, anticipated outcomes, is arguably the most pertinent matter. While the judge has heard various hints and suggestions since the start of the commission that the ANC, as an organisation, may have benefited in some way from corruption, more recent evidence relating to parliamentary oversight would have felt very uncomfortable to the ANC.

So, too, are indications that those implicated in corruption — fanned by factionalism and the desire to spread the blame — are going to do their best to implicate the present ruling party leadership.

We are told that President Cyril Ramaphosa will personally appear before Judge Zondo to address the ANC’s perspective — as former president (then-deputy president) Thabo Mbeki appeared at the TRC.

After the ANC failed in its legal effort to block publication of the truth commission’s final report, the party tried to persuade its president, Nelson Mandela, not to attend the official handing-over ceremony. But Mandela went ahead and received the report from commission chairperson Archbishop Emeritus Desmond Tutu. Mandela retired a few months later.

Ultimately, it is the NPA that will determine perceptions of the Zondo Commission’s success or failure. If the NPA is allowed to do its work unfettered by politicians, it will have the advantage of mountains of evidence, much of which has been in the public domain for several years.

There is in fact nothing preventing the NPA from instituting prosecutions now, even while the Zondo Commission is completing its work.

Just as there is nothing — besides the will — preventing the NPA from instituting prosecutions relating to the 1985 murders of the Cradock Four, or any of the other hundreds of cases the truth commission recommended for further inquiry. DM

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  • In my opinion, the two commissions cannot be compared. The TRC was always highly contentious as this was not Nuremberg where the victors actions could not be judged, only the vanquished. As South Africa had reached a negotiated settlement, the TRC had to see all crimes, and in this light a bomb planted in a Wimpy is as serious as a Operation Smokeshell. Little wonder that the ANC wanted to bury the report.

    The Zondo Commission is investigating a series crimes which affect the whole population and for which there is little support. It is only Zuma, Ace, Niehaus and their cohorts who don’t want to see justice, the rest of the country is clamoring for it. It will be difficult for the ANC to duck this one.

  • I suspect the reason for the failure to prosecute TRC cases is mostly due to the crimes committed in Camp Quattro – unless one wants to be more conspiratorial and suggest that had prosecutions followed, a sense of justice would’ve been achieved by the majority, after which it would’ve been much harder for the ANC to continue to pull the Apartheid/race card they so love to haul out whenever any of their cadres is in trouble…

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