Opinionista Vicky Heideman 7 June 2021

Uncommon sense: Ben Cronin got it wrong — if anyone can get to the root of State Capture, it is Judge Zondo

State Capture in the South African context is not just a synonym for the privatisation of state institutions. Nor is it another word for many individual acts of corruption. As was once described to me by Paul Pretorius SC when the Zondo Commission first started: if stealing water were an act of corruption, State Capture is the process of stealing the tap.

Vicky Heideman

Vicky Heideman is a member of the Rivonia Group of Advocates in Johannesburg. She is also a member of the legal and research teams at the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State (Zondo Commission). She writes in her personal capacity.

Let me start by saying that I don’t disagree with all of the sentiments expressed by Ben Cronin in his article “Common cents: The State Capture Commission is itself a symptom of State Capture” (Daily Maverick, 31 May 2021).

But unfortunately, Cronin has based some of his conclusions on misinformation, and I fear that if left without correction such misconceptions may well be absorbed into the public narrative.  

He writes “this commission (Zondo) is in fact itself part of the steady and ceaseless liquidation of the state — which is the true cause of this phenomenon of ‘State Capture’.

“The well-funded commission, which uses private legal inputs in the form of attorneys and advocates who charge by the hour, is duplicating an existing state function, namely that of investigating and prosecuting individual crimes. Rather than looking into the systemic cause of State Capture, it seems preoccupied with the escapades of ‘capturepreneurs’. 

“As this liturgy of quasi-litigation goes on, the real state entities tasked by our Constitution with investigating and prosecuting acts of crime are steadily defunded, depopulated and increasingly rendered defunct.”

It is true that many state institutions have been gutted of their former capacity. It is very likely that the seeds of State Capture as we know it today were sown long ago, during the apartheid era. It is a tragedy that the National Prosecuting Authority (NPA) has been starved of the funding it so badly needs in order to properly do its work.

And I do agree that a well-funded and professionally run civil service could contribute toward preventing future State Capture. But unfortunately, such a robust civil service will remain nothing but a naïve pipe dream if we are to believe that it can be achieved simply by giving it more money. In fact, I believe that if Cronin had paid more attention to the underlying story and definition of State Capture in the South African context that has been emerging from beneath the narratives expressed at the Zondo “reality TV series” rather than relying on his oversimplified version of an outdated World Bank definition of State Capture and his own misplaced assumptions, he would be slow to make such a suggestion.

State Capture in the South African context, after all, is not just a synonym for the privatisation of state institutions. Nor is it another word for many individual acts of corruption. As was once described to me by Paul Pretorius SC when the Zondo Commission first started: if stealing water were an act of corruption, State Capture is the process of stealing the tap.

I assure you that the commission’s understanding of State Capture in the South African context has evolved even further since then, for this is part of the commission’s very purpose: to understand what happened, how it happened, and how it can be prevented in the future.

Far from a story of the perils of privatisation itself, the story of State Capture in South Africa is a tale far more complex and nuanced than that. Told through the narratives of individual witnesses, we have seen patterns start to emerge of public institutions systematically repurposed to serve the interests of a few private individuals. There were some civil servants who tried desperately to do their jobs as professionally as always in the face of this repurposing. Some of them were brave enough to become whistle-blowers. All these whistle-blowers were victimised. Most lost their jobs. Some lost their lives.

For some of the victimised individuals, the Zondo Commission has been the first platform where their stories could be heard. For those who have been implicated, the commission has given them a non-punitive platform to put forward their version as well. Some of them were driven by ambition and the quick road to wealth and success that a captured state could offer.

But in some cases, those implicated in the web of State Capture have themselves been victims: having had their lives and their livelihoods threatened should they not play along. History has shown us that good human beings can do bad things when they are placed under certain kinds of pressure. The South African State Capture story is no exception. The question of how to prevent it in the future, therefore, requires far more than simply providing better funding for the civil service. 

It worries me, therefore, that Cronin could make the assumption that the Zondo Commission is simply duplicating the work of the NPA, and at great cost. I know that it is a common misconception that the commission is some form of court with the power to prosecute individuals. But it most certainly is not. As stated by JA van den Heever, the then chairperson of the Durban Riots Commission:

“The proper function of a commission of inquiry is to find the answers to certain questions put (by the State President) in the terms of reference. A Commission is itself responsible for the collection of evidence, for taking statements from witnesses and for testing the accuracy of such evidence by inquisitorial examination — inquisitorial in the Canonical, not the Spanish sense.” (As cited in Bell v Van Rensburg 1971 3 SA 693 (C) at 707, translation by J Middleton in “Notes on the Nature and Conduct of Commissions of Inquiry: South Africa” at 257).

The Zondo Commission’s specific terms of reference (and the matters on which it must ultimately report to the president) can be found here.

What Cronin should immediately notice about these terms of reference is that nowhere is the commission mandated to hold individuals accountable, nor to secure the prosecution of these individuals. In fact, examination of the underlying causes of State Capture is a far more apt description of the commission’s mandate. As such, there is no duplication of work between the commission and the NPA as alleged.

That being said, it should be noted that evidence uncovered in the course of the commission’s investigations has already been shared with the SIU and the Hawks. Cronin may well imagine that when the commission concludes its hearings at the end of this month that the vast wealth of evidence gathered (both led and unled) would just disappear into the ether, but he would be mistaken. In all likelihood, this evidence will be handed over to the newly established Investigative Directorate of the NPA for them to pursue the prosecution of individual cases of corruption while the commission completes its own task of writing its report for the president.

As such, all that “well-funded” work will not have been wasted.

And on the issue of funding: yes, it is true that private legal counsel and investigators who have been employed by the commission charge at an hourly rate. It is also true that the commission could likely have been more efficient with its resources. But that is something that could have been achieved with better planning, and unfortunately, the nature of the commission’s work did not allow for that.

Initially, the commission was only meant to run for six months. If you read the terms of reference, what is clear is that some specific instances of State Capture were known at the time they were drafted: whistle-blowers such as Vytjie Mentor and Mcebisi Jonas had already come forward. Part of the work of the commission was to invite other whistle-blowers to come forward so that the commission could get the full picture of the nature and extent of State Capture.

It could not have been known at the time how many would come forward, and how extensive the commission’s work would be to properly fulfil its terms of reference. Hence the extensions, and the need for further work to be done. And these extensions were not always expected by the fiscus — therefore it is a mistake to assume that the commission has always been “well-funded”.

In fact, it should be noted that the private legal practitioners who work for the commission do so at a fraction of their ordinary fee, and many have given up their practices to do so. Counsel and attorneys who work for the commission are paid the already discounted state attorney rate, minus a further 20% discount on average. The fee was fixed in 2018 and has not been increased since then.

Then, for a period last year, even that double discounted rate was further discounted by up to 33%. As a result, the commission has benefited from the skills and experience of some of our best private practitioners at a fraction of their normal cost. And despite this, many of these practitioners have waited six months or more to be paid for work done.

I do understand that despite these discounts, the cost of the commission has been high. It may well be that the state could get better value for money in future by establishing a permanent state-funded Commissions Office to conduct such inquiries. But we do not have one yet. What we do have, however, is a commission of inquiry chaired by one of our country’s sharpest judges and staffed by some of our finest independent legal minds who have spent the past three years trying to unravel the web of the uniquely South African State Capture story.

If anyone will be in a position to find the underlying cause of the State Capture disease and answer the question as to how to prevent it from happening in the future, it will be Deputy Chief Justice Raymond Zondo. DM

Gallery

Comments - share your knowledge and experience

Please note you must be a Maverick Insider to comment. Sign up here or sign in if you are already an Insider.

Everybody has an opinion but not everyone has the knowledge and the experience to contribute meaningfully to a discussion. That’s what we want from our members. Help us learn with your expertise and insights on articles that we publish. We encourage different, respectful viewpoints to further our understanding of the world. View our comments policy here.

All Comments 19

  • Hear hear! Great article! We spend far too much time criticizing every possible inefficiency and allow it to completely derail the overall goal of a process. Is the commission perfect? No, but it’s doing good work and the positives that come out of it will far outweigh the negative aspects. Thank you for speaking your mind and allowing a more common sense approach be heard.

  • “If anyone will be in a position to find the underlying cause of the State Capture disease and answer the question as to how to prevent it from happening in the future, it will be Deputy Chief Justice Raymond Zondo.”

    Really?

    Just read Orwell…no great mystery…it’s all there: if there’s no separation between state and party, then kleptocracy and corruption will blossom, every time. Even if by some miracle some of the topcats like Ace and company gets successfully prosecuted, their places at the trough will soon get filled. This is how it will be as long as the voting masses keep the ANC / Communist / EEF trifecta in power…and those in power keep the voting masses uneducated unemployed and at their SASSA mercy.

    • You are possibly right Christoph. But for now, I wait in anticipation for the report. Batohi certainly will have a lot of ammunition. And small victories might just result in larger ones to follow

  • More than brilliant article by Vicky Heideman, and agree with all her sentiments. In fact, made my day, even though it just started. Cronin mostly wrote just rubbish. I think when Deputy Chief Justice Zondo releases his report, sparks will fly. He is not going to pussy foot, and will go for the jugular. After 2 1/2 years, he has a firm grip of state capture, and whose guilty. He is also immense bright, and as Vicky says, one of the sharpest judges this country has ever seen. As he will be able assisted by the legal team of the commission, many of whom are simply fed up with all the lies and denials by the accused that came out of the commission, do not expect a soft version of a best selling crime novel. Just a pity that idiots like Duarte tried to interfere in the commission’s work

    • Agree absolutely. I so admire Justice Zondo having seen the man in action. Unlike the misfits and opportunists that appear to dominate the current JSC. If Zondo should ultimately fail in his mission then god help us. Thanks Vicky Heideman, also made my day!

  • What an excellent article. Thank goodness there is a common sense response to Mr Cronin’s well intentioned but misleading story. Viva the commission.

    • Yes! And imagine: if Ben Cronin had NOT written that article we probably wouldn’t have heard all this from Vicky Heideman!

  • Agree with your sentiments and factual correction.
    A big thank you to those private legal practitioners who have given up significant chunks of their salaries to put up with what must be a very frustrating process.
    Restores (a little) of my faith in the legal profession

  • Don’t know if this comment actually belongs here, but did not know where else to place the comment.
    This morning I received an email from amaBhungane, informing me and others that Stefaans Brummer, co-founder with Sam Cole of amaBhungane, has decided to take retirement, 11 years after that on-line medium. No for those that do not know, amaBhungane was actually the medium that first started with the reporting of state capture. They are also the first group contacted by the whistle blowers of the Gupta emails who then partnered with Daily Maverick, as the story was so big, and immense, that it would have been impossible to do the investigation on their own. I think that is also how Scorpio at DM started.
    Mr. Brummer, your contribution is the last 11 years, and off course even before then, is one of the most important in the history of investigative journalism. Several other media companies, most prominent the Sunday Times and News24, off course tried to hi-jack the work that amaBhugane started, but State Capture as it is now called would not have been exposed if is was not for you, Sam, and your company’s hard work.
    I salute you and wish you all the very best and health in the years ahead, and may your world travels be everything your want it to be

  • Given the circumstances and comparing the amounts being stolen in the relentless grand larceny ongoing even as the hearings continue, I would say the money is being well spent. What will render the whole exercise a costly, even criminal, waste is if the eventual recommendations are not implemented. (I enjoyed the allusion to the Inquisitorial brothers Canonical and Spanish, but back in the day it’s said they were so alike they often wore each others clothes)

  • Exactly right. I have been deeply impressed by DCJ Zondo; his fairness, patience and intelligence. There’s a tendency among the disillusioned to proclaim that the Commission is an expensive waste of time, and that nothing positive will come of it. With those preconceptions they have presumably lacked interest in the proceedings, but anyone who has been paying attention to the honourable DCJ will have much more optimistic expectations.

  • Two opposing views Cronin and Heideman. Both interesting. Heideman points out that Cronin oversimplifies. Perhaps so but she is oversimplifies the massive legal fees being earned. R38k a day in some cases if reports on it is true.

    As part of the tax payers who funds this public venture I am qualified to hold an opinion on it. A detailed spreadsheet showing whom what when will put everything into context. It is our money why should it be a secret?

    Long forgotten by the legal profession is the rape of the RAF by “officers of the court”, the tax payer will remember! Is the Zondo commission a new frontier of profiteering? A fair question.

    Questions about the income aside. Perhaps Heideman has a point, the Zondo commission may prove to have some utility and benefit.

    Corruption and state capture is not unique to SA and I suspect happens even in developed countries. What may be unique is how it is dealt with and the extent of it. However if not addressed adequately our economy and justice system will falter.

      • Yes holding those responsible to account is very destructive. Asking tough questions and critical thought will upset those with hidden agendas.

    • No, the Zondo Commission is not “a new frontier of profiteering”. It is an essential part of exposing corruption to address, as you say, the faltering of our economy and justice systems.

  • DM168 INVESTIGATION

    South Africa’s vaccine passport: Have jab, can travel, except to the UK and US

    By Peter Fabricius

    "Everything is flux" ~ Heraclitus