At a rather late stage, it has become apparent to the State Capture Commission that it will not be able to complete the outstanding aspects of its report by the end of February as envisaged, and will need until the end of April to wrap up its work by completing either one or two more reports. When the final report was anticipated by the end of February, the President let it be known to the public that Cabinet would respond, in Parliament, to the report by the end of June.

The Presidency will not oppose the request to a court for more time that has been lodged by the State Capture Commission. This decision to abide by the ruling of the court is sound: the court is likely to grant the request of the State Capture Commission as so much effort, time and public money have been invested in it that it makes plain common sense to let it finish its work properly.

It needs to be borne in mind that the State Capture Commission is a tool of the executive branch of government. The topic of State Capture is so fraught, so vast and so complex that it makes good sense to appoint a commission of inquiry to investigate the ins and outs of State Capture in SA. Cabinet members and regular civil servants have neither the time nor the expertise to do the work that the State Capture Commission has done. The findings of fact of the State Capture Commission bind no one (many of them are likely to be taken on review by disgruntled persons fingered as corrupt in the report of the State Capture Commission) and the recommendations that the State Capture Commission makes are also not binding on the government.

There are two cardinal aspects of the work of the State Capture Commission that remain outstanding at this stage. The first relates to the reform of the criminal justice system that will be needed to insulate the state against a repetition and to hold those involved and identified to account both in the criminal courts and in civil proceedings for the recovery of the loot of State Capture.

The State Capture Commission has started off on the wrong foot in relation to the reform of the criminal justice system in that it has misinterpreted the impact of the judgments in the Glenister case handed down by the Constitutional Court in March 2011.

The first tranche of the report refers with approval to the reasoning in the joint judgment of judges Dikgang Moseneke and Edwin Cameron in that matter. However, the State Capture Commission mischaracterises the judgment as a minority judgment (with no binding effect), when in truth and in fact it is the majority judgment and is accordingly binding on the state. It is plain to any objective observer that the adequately independent corruption busters required by law to deal with the corrupt efficiently and effectively, simply do not exist in SA and haven’t for years.

It is to be hoped that the State Capture Commission will correct its misperception on the meaning of the Glenister judgment and adjust such findings as are based on the misperception before it completes the last tranche of its report (whether in two instalments or only one). The State Capture Commission has been given the opportunity to comment on suggested draft legislation that has been generated by Accountability Now. It has also been placed before the legislature, Cabinet and the National Prosecuting Authority. So far, the State Capture Commission has not availed itself of the opportunity. May the delay in finalisation be used at the very least as the occasion for correcting the error in the first tranche of the State Capture Commission report.

The second big issue not yet canvassed in the State Capture Commission report is the question of the legality and constitutionality of the practice of cadre deployment in the public service and the state-owned enterprises (SOEs). Here too there is legal precedent for the proposition that the practice is invalid and illegal.

The high court decision in the Vuyo Mlokoti case has not been appealed and remains good law. The ANC, in an effort to work around the decision, pretends that its cadre deployment committees only make recommendations to the state’s legal structures seized with the appointment of key personnel in the public service and SOEs. The limited cadre deployment meetings minutes made available to the State Capture Commission reveal that far from merely making recommendations, the cadre deployment practices are regarded as binding and are even used in respect of getting “our people” appointed to the judiciary.

The evidence of the President to the State Capture Commission reveals that the JSC, whose constitutional duty involves the appointment and the dis-appointment of judges, is regarded by the ANC as little more than a rubber stamp for decisions made at Luthuli House. The President favours the retention of cadre deployment.

It is already a given that the phenomenon of State Capture is real and that, in the words of the acting Chief Justice, “an army of prosecutors” will be needed to mop up the mess left by those who have attempted to hijack the SA state for their own nefarious and greedy purposes.

The State Capture Commission has been urged to find that one of the major causes of State Capture is the abuse of power involved in the cadre deployment practices of the ANC in the public service and SOE appointments processes. Cadre deployment involves an inherent conflict of interests in that the separation of party and state is smudged and the cadres feel more beholden to the programme of the political party in power than they do to the implementation of the lawful policies of the government of the day and the upholding of constitutional values.

The values of the National Democratic Revolution (NDR) are often inconsistent with the values of the Constitution. Deployed cadres are inclined to follow the NDR rather than the Constitution, with the result that the conditions for the capture of the state and its repurposing for (supposedly) revolutionary ends are promoted at the expense of the public, especially the poor who are reliant upon the state for the provision of services of the kind guaranteed to all in the socioeconomic sections of the Bill of Rights.

As the state must respect and protect these rights, and indeed all rights included in the Bill of Rights, the pursuit of a revolutionary agenda is incompatible with the governance principles and values that are contemplated in section 195 of the Constitution.

It is to be hoped that the final report of the State Capture Commission deals dispositively with the evils of cadre deployment. The practice should be kept within the ANC and not extended beyond purely party-political appointments. Turning the state into the playground of crooked or even misguided cadres is at the root of the project to capture the state and repurpose it for the private purposes of a particular political alliance and its fellow travellers in the procurement business.

The parts of the report of the State Capture Commission that have already been published have led to criticisms that are perhaps premature. The Open Secrets CSO is concerned that the banks have been let off too lightly by the State Capture Commission. The whistle-blowers are disappointed that their lot is not given greater attention in what has been published in the way of findings thus far.

There is also the controversy around the former SSA boss Arthur Fraser. It is now alleged by City Press that he has falsely claimed to have a degree from London University. If Fraser has no degree, he should be charged with defrauding the state and made to pay back all salary and other emoluments earned from the state on the back of his false claims.

It is in the interests of serving the value of exacting accountability that is entrenched in section 1 of the Constitution that the State Capture Commission be given as much time as it reasonably needs to complete its work.

It is already a given that the phenomenon of State Capture is real and that, in the words of the acting Chief Justice, “an army of prosecutors” will be needed to mop up the mess left by those who have attempted to hijack the SA state for their own nefarious and greedy purposes.

These facts being common cause, it is to be hoped that the dithering around the response of the state to the report should not be delayed any longer, at least not insofar as remedial legislation (to heal the wounds to the criminal justice administration inflicted after the premature demise of the Scorpions) is concerned.

The National Executive Committee of the ANC has called for urgent reform, the DA has prepared draft legislation and so has Accountability Now. The task of getting on with the reforms needed should not be delayed pending the publication of the final report.

The army of prosecutors needed should be housed in a constitutionally compliant way as envisaged by the Constitutional Court’s majority judgment. The sooner the better. DM