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As Days of Zondo draw to a close, an extension is both...

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Opinionista

As Days of Zondo draw to a close, an extension is both needed and desirable

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Professor Dr Omphemetse S Sibanda is a Professor of Law and the Executive Dean of the Faculty of Management and Law at the University of Limpopo. He holds a Doctor of Laws (in International Economic Law) from North West University, a Master of Laws from Georgetown University Law Centre, US; and an LLB (Hon) and B Juris from the then Vista University, Soweto Campus.

The Zondo Commission has shone a very bright spotlight on the culture of corruption, maladministration and some of the most egregiously illegal, unethical and immoral conducts perpetrated within our governing administration. It must be allowed good time to complete its work diligently, and in a manner that will not taint the outcome of its work.

The State Capture Commission is expected to wrap up its work on 30 June 2021, and already the chairperson, Deputy Chief Justice Raymond Zondo, has announced he will seek a further extension of the inquiry until September to allow for its proper conclusion. The application for extension is to allow the commission to hear from President Cyril Ramaphosa in his capacity as president of the ANC.

This extension application follows similar applications, said by the commission to be the last. During an application this year for further extension, Judge Zondo said that “the extension period — April, May and June 2021 — will be used for the preparation of the commission’s report while March should be the last month of oral testimony. So the remaining months will be used for report writing.”

It will now be a roll of the dice for the judge, who has conceded that the extended life of the commission now rests squarely in the hands of the courts. Already at the time, the commission had failed to complete its work as per the February 2020 court order granted in its favour to finish its work by March 2021.

All eyes and ears should now be on the extension application. The prospect of success hangs in the balance, and things can go either way.

First, the court can deny the application and that would mean that the curtain is finally to fall on the commission. This is a likelihood particularly given commitments Judge Zondo made to the court previously to complete his work, which he clearly will not be able to do by the end of June 2021. As already said, the commission has previously failed to meet its date of delivery.

Consider, for example, the 24 February 2020 extension application: In the ruling in the case of Chairperson of the Judicial Commission of Inquiry into State Capture v President of the Republic of South Africa, Judge Wendy Hughes made it very clear that the commission was to be granted a last extension to complete its work and present its report with findings and recommendations to Ramaphosa.

Judge Zondo at the time submitted that if “his request is granted by the first respondent he would be able to complete the commission’s work in the additional period of 10 months”. He played his cards openly and put the court on notice that he will make an application for another extension “should it turn out that some more time is required than the 10 months”, which he did, successfully getting three months’ extension for April, May and June 2021.

If the extension is not granted one would expect Judge Zondo to fully involve the services of the National Prosecuting Authority (NPA), which he has always held as the fall-back position. During the February 2020 application, for instance, he submitted as an alternative to not getting the extension a proposal that the outstanding work be completed under the auspices of the NPA. Depending on the outcome of the application, the commission may need to invoke paragraph seven of the terms of reference, in terms of which the commission is permitted “to refer any matter for prosecution, further investigation or the convening of a separate enquiry to appropriate law enforcement agencies, government department or regulator regarding the conduct of certain person/s”.

Another outcome may be the court using its discretionary powers, and on good cause shown by Judge Zondo, to grant an extension. Signs are already out that he is going to do his best to show there is good cause to be granted the extension, in particular that accountability and fairness will not be achieved if the commission’s work is ended abruptly.

“I will not end the work of the commission in an irresponsible manner just because I want to satisfy those that demand the commission complete its work,” said the judge in arguing for the envisaged application for extension.

Whoever is to decide the application will be between a rock and a hard place. That judge will be haunted by the words of Shakespeare’s Hamlet: “To be, or not to be, that is the question.” The judge may or may not be the one to deny or grant the extension, possibly against some fierce pushback and criticism. Politics and criticism aside, the final determination of the application may come to the question of whether the interests of justice would be served by granting the extension.

Will the interests of justice and fairness be served and justice be seen to have been done when former president Jacob Zuma is hauled before the commission, but the current president’s testimony is truncated for expediency reasons, or Ramaphosa’s planned appearance is forsaken due to time constraints for the commission to finish its work?

Some critics of the commission’s work may be gifted a perfect opportunity to criticise it as an establishment that was unfair and not impartial from day one. Those who have been implicated and wanted the opportunity to dispel the allegations against them may feel prejudiced by a rushed end to the commission’s work. These individuals may legitimately demand assurance of justice and for justice to be seen to be done. 

A critical rule is that the conduct of judge-led commissions of inquiry should not be found wanting from the perspective of the rule of law, observing the rights and privileges of all the parties, and observing a principle of fidelity to adjudication. An abrupt end to the commission’s work may attract negativity.

I am a great supporter of the view that the commission must be allowed good time to complete its work diligently, and in a manner that will not taint the outcome of its work. As a reminder and as previously argued, the commission is worth every cent and South Africa’s hopes rest heavily on the Zondo Commission putting a spoke in the wheel of corruption.

Of course, it was always to be expected that any further request for an extension would be met with disgruntlement and rejected by some as a further waste of taxpayers’ money. This kind of mixed reaction is confirmed by comments in a report in Daily Maverick on 17 June 2021, “State Capture Inquiry seeks another extension to complete its work”.

Forget about the hearsay evidence that is sometimes peddled at the Zondo Commission. Equally, forget about outright bare denials of wrongdoing and obstructive behaviour by some witnesses without a shred of corroboration. Finally, also forget about the political machinations in which some witnesses have involved themselves to re-establish their political relevance, and instead focus on its value add to law and order.

One thing is certain: the horse has bolted and the commission has shone a very bright spotlight on the culture of corruption, maladministration and some of the most egregiously illegal, unethical and immoral conducts perpetrated within our governing administration.

Like Eucalyptus regnans, reportedly the tallest flowering plant in the world, State Capture will stand tall as the legacy of democratic South Africa having spread its corrupt pollen in almost every sector of our society. History will reflect on the Zondo Commission as a catalogue of human foibles and state institutions up for illegal and corrupted sale to the highest bidders.

The brazen greed by politicians, public servants and key public figures fortunately could not hide behind the secrecy of the good old days when the state was looted openly. We cannot deny that there was a great level of arrogance from some politicians and other witnesses when it came to responding to questions before the commission — the same arrogance that led to the quest for accountability being lost in the process. However, one hopes that this palpable arrogance, particularly by our politicians and people who should be leading the country to good governance, prosperity and respect of the rule of law instead of themselves leading thieving activities, has reached its cul de sac.

To quote Judge Hughes in the February 2020 hearing, “the interest of justice dictates that finality be attained with findings, recommendations and a report of the commission. The commission owes this to the nation as the work of the commission is of national interest” [at para: 24].

Inasmuch as one supports the need for the commission to be fully supported in undertaking a proper, honest and comprehensive inquiry, like all things that come to some end, the work of the commission cannot be in perpetuity. It must come to an end. One is highly anticipating the report of Deputy Justice Zondo. Undoubtedly, it is not an unreasonable expectation that the Zondo report will expose how corruption is entrenched among South Africa’s political leaders who are at the centre of the alleged abuses of power, and an inept public administration that allowed the capture of the state primarily by the Gupta family. The ineffectiveness of our law enforcement agencies in dealing efficiently with corrupt practices will also be exposed.

Those who gave the middle finger to the commission may start to prepare for their days in court to prove their innocence of the criminality that directly and indirectly has been linked to State Capture. But importantly, it is hoped that the outcome of the commission’s work will usher in a new era where our politicians and parliamentarians lead by an honest example of acting honourably and in the public interest. DM

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  • How long is this piece of string? Notwithstanding the most recent hearings, what will the outcome of the hearings be? One cannot but wonder.

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