Given a three months’ lifeline, denied further funding and experiencing new defiance from rogue witnesses. This is how one can best describe this week in the life of the Judicial Commission of Inquiry into Allegations of State Capture (Zondo Commission) after the North Gauteng High Court granted it a three-month extension until June 2021.

Interestingly, on the other hand, Finance Minister Tito Mboweni in his Budget speech on 24 February 2021 vowed not to give any further money to the commission to finish its work during the extended period. This is now the second year running of it not getting money since the extra R272.9-million allocated in 2019.

To rub salt in the wounds, the disrespect the commission has been worried about came to fruition when another key witness, the director of Swifambo Rail, Auswell Mashaba, defied it.

According to Mboweni, “this perpetual extension… is not really conducive – they must finish their work”. If only pushing processes to finality as soon as possible was the approach of the government and/or its ministers in their different portfolios, South Africa would have been a better place with regard to service delivery.

Not only did Mboweni sound distasteful of the high court giving the commission a much-needed extension, the minister launched a narrative of the Zondo Commission as the most expensive judicial inquiry in South Africa’s democratic history. 

“We made it very clear when we extended the R63-million to the Commission of Inquiry into State Capture that as far as we were concerned, that was the amount that they must use to finish their work and close out and finish,” said Mboweni. By October 2020 the commission’s bill was just under R800-million.

Mboweni’s snipe at the commission is the tip of the iceberg with regard to how politicians and other key public figures view the commission. The reception of the commission, particularly seeing that it is getting to the core of the rot, is marked by competing and contradictory attitudes. Future generations will look back at the State Capture tomfoolery and the pushback the commission experienced and say: “It was the best of times, it was the worst of times,” as Charles Dickens put it in A Tale of Two Cities.

The issue of the money spent on the Zondo Commission aside, a question must be asked: how interested is the government in combating corrupt practices in government and instilling the rule of law? Shaming the extension requested by Deputy Chief Justice Raymond Zondo is not only unfair to the process but myopic to the reality the commission is facing. Even getting simple non-incriminating information from some witnesses or getting them to the commission has been like extracting a bad tooth from a donkey.

In the most absurd legal gibberish I have ever heard as both a law student and a law academic, Mashaba’s lawyers, in a letter to the commission, said the commission’s summons “doesn’t constitute a lawful and legally binding document”.

A first-year law student will know that in South Africa it is a criminal offence to avoid or ignore a summons served against you. Lay members of the public are often advised to consult lawyers when they receive a summons. If I were an ordinary member of society I would be hesitant to approach lawyers who wilfully encourage breaking of the law or are clueless with regard to the legal regime that governs their trade.

You need not be a rocket scientist to decipher that Mashaba’s defence has taken a leaf out of former president Jacob Zuma’s defence and playbook by intentionally defying the commission and not taking its processes seriously. This cannot be good for our rule of law, as other witnesses at the commission will be tempted to do the same or employ dilatory tactics in order to ensure that the commission’s extended period expires without them having had to appear before it.

One cannot just take a bullish approach to a summons. At least Mashaba’s attorneys should have attacked the summons, to use the word known to lawyers, on some cogent grounds including but not limited to the fact that they will make him suffer prejudice as a consequence of the irregularity. A visibly dismayed Zondo was correct to state that conduct like this, “obviously undermines, in a significant way, the work of the commission when people with knowledge of transactions and events relevant to the work of the commission refuse to appear” and it “may defeat the objectives of the commission”.  

It is disappointing that Mashaba’s attorneys are finding it not problematic to disrespect the commission and the judiciary generally. The independence of and respect for the judiciary is a bulwark of law and order in our society. Those who thrive in lawlessness must keep their hands off the judiciary, for God’s sake! 

Mashaba would rather have the truth buried under the railway tracks with the knowledge that the public is generally dissuaded from playing here. In the face of such defiance by Mashaba, perhaps the public must be reminded that Swifambo Rail got its money through winning a R3.5-billion Prasa tender in 2013 to supply locomotives, which ended up as waste because they did not meet South African rail specifications.

Most importantly, it must not be forgotten that in November 2018, the Supreme Court of Appeal ruled that “the tender was procured through corruption” in a deal “tailor-made for the benefit of Vossloh [Swifambo front company], and thus Swifambo”. Forensic investigator Ryan Marc Sacks’s testimony at the commission related how the Hawks stood idle when there were allegations or evidence that money was paid to Swifambo Rail and other individuals. Mashaba has some further explaining to do at the Zondo Commission. 

But, it would seem that the “who-you-are approach” in our criminal justice system is rewarding the lawlessness and encouraging this untouchables behaviour.

Welcoming the Constitutional Court decision to dismiss an application by Swifambo Rail Leasing on the Passenger Rail Agency of South Africa’s (Prasa) Afro 4000 locomotives against the Supreme Court of Appeal judgment, the then transport minister Blade Nzimande said: “Throughout this long, painstaking legal process and impediments thrown our way, we remained resilient, undeterred and resolute in our commitment to leave no stone unturned to fight against corruption and State Capture.”

Turning all the stones at the Zondo Commission should not be an exception to the “rule” expressed by Mzimande. Let us call it what it is: our judiciary, and law and order are under threat. To the disagreement of others, I can even call this a constitutional crisis from the perspective that our Constitution created republic-based laws, and not on political whims. 

“This conduct by anybody… without having gone to court to set it aside if someone thinks the summons is irregular, is totally unacceptable… Soon it will be happening in magistrates’ courts, in high courts throughout the country, because it would seem that sections in our society will be believing that it is acceptable to defy a summons,” said Zondo [read here]. 

Considering all the evidence at the commission, with particular focus on corroborated testimonies, the National Prosecuting Authority (NPA) could rationally find that elements of the crime of corruption and fraud have been established and that a prima facie case can be established to pursue criminal prosecution.

It will be total anarchy. Is that what our government wants to see happening?

The firm word must be out that those who defy the commission must never think that they are off the hook. Lawyers complicit in or encouraging defiance of the courts and the commission must be reminded that they are not untouchable. Their conduct is legally, morally and ethically reprehensible.

Offices like the Legal Practice Council (LPC) and the newly appointed Legal Services Ombud (LSO) must proactively ensure that the legal profession acts ethically in the public interest. (“I am humbled by the president to appoint me as the first Legal Ombud for the country. It is an exciting opportunity to contribute to raising the bar for ethics amongst legal practitioners. And I look forward to advancing the public interest in the rendering of legal services,” said Judge Siraj Desai after his appointment.)

According to CH van Zyl and J Visser in an article titled “Legal Ethics, Rules of Conduct and the Moral Compass – Considerations from a Law Student’s Perspective”, “the legal profession, in order to address the potential for uncertainty in legal ethical disputes, strives to maintain confidence and nobility, and aspires to protect the public from unethical and unprofessional lawyers”.

Now is the time for both the LPC and LSO to show us just how true this is. It will be the worst time in South Africa for lawyers to be chief architects for our legal system to be a topsy-turvy world. As far as I know, no law absolves lawyers from acting legally and ethically. Unfortunately, through the work of the commission we have seen a disturbing trend in legal representation: lawyers who reduce themselves to cheerleaders of their clients, when their clients are recalcitrant and deceiving the commission; and lawyers who seemingly believe that it is a mark of distinction as the best legal eagle to openly defy court processes such as summonses – at the same time creating a dangerous and devastating false narrative that in South Africa a summons means nothing. These lawyers confuse dialogue and defiance.

The danger is always lurking where persuasion ends and force begins. The commission has so far dealt with State Capture in a manner that rivals similar inquiries in other countries. Yet, you have people like Carl Niehaus making utterances about a show of force against the commission, and subtly inciting anarchy and unreasonable disobedience of the law if the commission is allowed to finish its work without defiance nor interference.

That said, and inasmuch as we are focusing on State Capture, it must be admitted that much of the conduct addressed at the commission can still be addressed through other ordinary legal processes. Nobody is off the hook yet.

Considering all the evidence at the commission, with particular focus on corroborated testimonies, the National Prosecuting Authority (NPA) could rationally find that elements of the crime of corruption and fraud have been established and that a prima facie case can be established to pursue criminal prosecution.

Let the real Hawks and the real SAPS stand up to help restore law and order through arrests. While public opinion is by no means in accord as to what degree of defiance of the commission’s summonses is enough for Zondo to kick in available legal recourse, what is beyond dispute is that nobody is above the law.

I find it incredible for any person, in particular many from political parties opposed to the work of the commission, to conclude that the commission is just a waste of taxpayers’ money and a witch-hunt. For reasons unknown to us, some have embraced poor governance and corruption as a way of life. Others may be happy in a possible state of South African lawlessness, which for the ordinary person on the street is demoralising.

There is no better way to conclude this piece than by referring to the challenges of poor governance and corruption with an article by Susan Rose-Ackerman, who stated that:

“All political systems need to mediate the relationship between private wealth and public power. Those that fail risk a dysfunctional government captured by wealthy interests. Corruption is one symptom of such failure with private willingness-to-pay trumping public goals… Of course, corruption, in the sense of bribes, payoffs and kickbacks, is only one type of government failure. Efforts to promote ‘good governance’ must be broader than anti-corruption campaigns. Governments may be honest but inefficient because no one has an incentive to work productively, and narrow elites may capture the state and exert excess influence on policy.”

The weakness and danger of a society that allows itself to be captured has been illustrated at all the Zondo Commission sittings. We have heard and read a good deal about the dishonesty and lack of integrity in governance that has affected service delivery, including putting South Africa into the abyss of retarding socioeconomic development. DM