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In a post-truth world, exhaustion of critical thinking is the new ‘get out of jail free card’

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Judith February is executive officer: Freedom Under Law. She writes in her personal capacity.

Regardless of the overwhelming evidence contained in the Zondo report, some of the implicated are using the media to engage in a strategy to undermine the Commission’s findings, the judiciary and discredit the Chief Justice himself. Loading this political dice is a dangerous game — but for the implicated, there is much to lose.  

“They were careless people, Tom and Daisy — they smashed up things and creatures and then retreated back into their money or their vast carelessness or whatever it was that kept them together, and let other people clean up the mess they had made.” The Great Gatsby F. Scott Fitzgerald

It was perhaps entirely predictable that those implicated in the Zondo Commission into State Capture would mount a fight back.

While the Commission’s final report will be submitted to the President on 15 June after seven extensions of time, Part 4 has now been submitted; the names of those implicated splashed freely on the pages of every newspaper in print or online.

It contains a more in-depth rendering of the capture of Eskom in particular. Leading the fightback charge was Matshela Koko. Koko, the former acting chief executive of Eskom was found to have been an “integral component” of the Gupta scheme to capture the state-owned entity and install Brian Molefe and Anoj Singh as CEO and CFO respectively.

The Zondo report has recommended that Koko be investigated and prosecuted for fraud, corruption and possible violations of the Public Finance Management Act in relation to, inter alia,

  • A R659-million prepayment for coal paid to Gupta-owned Tegeta;
  • A more than R4-billion coal supply contract awarded to Tegeta to procure coal from their Brakfontein mine which was “vitiated by irregularities, corruption and undue influence” by Koko and other Eskom officials;
  • R595-million paid to Gupta-linked Trillian through two contracts worth R1.6-billion with McKinsey. Eskom had no contract with Trillian. The report states that Koko, Singh and former chief executive officer Brian Molefe were “all central to the origin and furtherance of a scheme at Eskom, designed to exploit Eskom and benefit Salim Essa’s (another Gupta associate) company, Trillian”.

While seeing the evidence in black and white has brought greater clarity about the detail of these acts of corruption, it helped that the witness testimony was televised live for South Africans to draw their own conclusions even before the report was written. The executive summary will hopefully pull together all the component parts in an accessible manner.

And so we know precisely who did what, where, when and how.

Despite the overwhelming evidence contained in the Zondo report, some of the implicated like Koko have used the media to engage in a strategy of undermining the Commission’s findings and discrediting the Chief Justice himself. Loading this political dice is a dangerous game but for the implicated, there is much to lose.  

Such a strategy is also entirely in keeping with the post-truth world we live in. At any moment there seems to be two alternative narratives. The one is the truth; that which is immutable. The other is what is sometimes referred to as “fake news”, lies or what Garry Kasparov calls “modern propaganda”. “The point of modern propaganda isn’t only to misinform or push an agenda. It is to exhaust your critical thinking, to annihilate truth”, says Kasparov. 

Koko and his ilk seek to do precisely that; to exhaust us by muddying the waters with what appears to be facts. Really they are attempts to distract from the truth. Former president Jacob Zuma has perfected this art of evading accountability through his delaying tactics in court and feeding the narrative that he is the victim of a convoluted conspiracy against him by the state and those within his own party.  And so it is with the likes of Koko and those who seek to undermine the thorough work of the Zondo Commission. Koko has said the findings are inconsistent and that he will take the report on review. In disputing the findings of the Commission’s report, Koko contends that Chief Justice Zondo has “set the NPA up for failure”. He has also taken to social media and tweeted, “Justice Zondo has really gone crazy….The State Capture, in the Eskom case, was a waste of time.” (sic)

It remains to be seen whether Koko will take the Zondo Commission report on review or whether his is the blustery response of one who knows that he has no case to make before a dispassionate judge. It would thus be preferable to find refuge in the alternative universe which is social media and the blurring of the facts with wild supposition. Others have also signalled their intention to take the findings of the report on review. Former chair of the SAA Technical board, Yakhe Kwinana said she would “see them in court”. Similarly deputy minister of state security, Zizi Kodwa has threatened to take the report on review claiming the findings are “unsubstantiated and false”.

It is trite to say that anyone who is implicated in the report has the constitutional right to challenge the findings and take the Commission report on review. It is also trite to say that Koko, Kodwa and the raft of others implicated have the right to freedom of expression and to make public their disquiet at the findings contained in the report.

However when those implicated seek to cast aspersions on the Chief Justice with reckless talk, when Koko says that the Chief Justice is ‘crazy’, that constitutes a careless disregard for the judiciary at best and at worst it represents an attack on the judiciary itself. That has far-reaching consequences for the rule of law, the public’s trust in the legitimacy of the judiciary and for democracy itself. When Zuma cocked a snook at the Commission, the repercussions were far-reaching. 

But the strategy to undermine the rule of law and attack the judiciary is part of a far larger attempt to undermine the authority of the judiciary itself. Disgraced ANC member and convicted criminal, Tony Yengeni has himself lodged a complaint of judicial misconduct against Chief Justice Zondo.

Unsurprisingly, he is a staunch ally of compromised ANC secretary-general, Ace Magashule. Julius Malema has supported Yengeni’s complaint. All these individuals have an interest in ensuring that the judiciary is weakened. They have much to lose, having themselves been implicated in corruption. 

Chief Justice Zondo was therefore always going to be a target of these unscrupulous individuals who would tear down the edifice rather than be held to account for their misdeeds.  

The Public Protector, who has herself inserted herself into the country’s destructive political factionalism, is an important piece of the jigsaw puzzle of attempting to destroy the legitimacy of the judiciary through unending litigation. How else can her latest application to the Constitutional Court be explained — or any of her previous legal skirmishes? Busisiwe Mkhwebane has now launched a challenge to the ConCourt’s rejection of her impeachment rescission bid. Mkhwebane contends that the ConCourt “unlawfully and irregularly granted” its order on 6 May 2022. It is a legal absurdity and yet she persists, not for the first time (see: Has the time come for the politically weaponised Public Protector to be removed from office?) with the assistance of her lawyers whose conduct must surely be called into question. 

As Pierre De Vos has written elsewhere, “The questionable conduct of some of the lawyers representing Public Protector Busisiwe Mkhwebane, Judge President John Hlophe and former President Jacob Zuma (to name but a few), has elicited harsh criticism and led to calls for our courts to censure the culprits. Sadly, this kind of conduct is just one of the factors contributing to perceptions about the lack of integrity within the legal profession. A quick look at recent judgments from our high courts suggests that far too many members of the legal profession are fundamentally dishonest and lack basic respect for the legal processes.”

On Tuesday, former President Zuma’s corruption trial was postponed yet again. It continues to test the judiciary for only one purpose — to evade accountability. The reconsideration application which we are told is on its way to Supreme Court of Appeal President Mandisa Maya will again place the candidate for deputy Chief Justice under scrutiny. 

In their seminal book, How Democracies Die, Steven Levitsky and Daniel Ziblatt point out that democracies don’t die overnight. They die as a result of the “erosion of democratic norms and increased polarisation in society”.  They go on to argue that “institutions and norms are critical to preserving democracy, but they can be worn down slowly and systematically”.

In South Africa, we have seen those who have been implicated in the capture of the state repeatedly try to wear down the institutions of democracy and discredit them. The Zondo Commission report is not perfect, but it has provided us with two invaluable weapons — facts and a transparent process.

Those who challenge the report should therefore do so with the same rigour and transparency or the tired public will simply draw the conclusion (if they have not already done so) that these individuals seek to abuse the legal system and undermine the rule of law simply to avoid accountability for their acts of corruption. By doing so their actions represent a clear and present threat to our democracy and our judicial system.

Given the times we are in and with another gloomy week of load shedding and all around us are ‘careless people’ who smash things up in acts of ‘vast carelessness’, it is worth contemplating that it is not all ugly. 

We have much to bemoan in our country. Things are mostly falling apart and that refers to things other than roads. We feel the decline and decay wherever we might live. In Johannesburg, saluted ironically in Mongane Wally Serote’s City Johannesburg, (Poem: City Johannesburg by Mongane Serote | FunDza ) the potholes are everywhere, grass chokes the verges, traffic lights don’t function, businesses have all but abandoned the inner city. World-class African city, they said. Crime spirals and there is no viable transport system to speak of. It is the legacy of years of poor leadership and corruption. The lack of care is pervasive throughout South Africa. And yet, somehow this country survives. By the skin of its teeth but survive it does and only, only because of its people and its collective heart. 

Sanctuary Mandela is Madiba’s old Houghton home, renovated and taken over by the Nelson Mandela Foundation. It has partnered with Motsamayi Tourism Group (formerly Thebe Tourism Group) and Miarestate to create a boutique hotel and a special place of memory. Not everyone will find the new aesthetic to their taste even as the heritage facade of the beautiful home Madiba lived in until 1998 has been preserved. But that seems a trifle. For it is the people who run it, mostly young, gifted and black (with apologies to Nina Simone) who make it what it is. Their care for this place and for living Madiba’s legacy is infused in all they do. Madiba would mostly have been disappointed in who we have become but one would like to think that he would be proud of the next generation who are now taking care of his legacy in Houghton. 

M’am Xoliswa is still there too, as a reminder of yesteryear. She tells colourful stories of her time as chef to uTata, as he was known to her. (M’am Xoliswa took herself to culinary school) She still cooks at Sanctuary and serves up some of his favourite dishes for guests. He treated everyone the same, she recounts. And then she laughs when she recalls him calling the Queen by her first name. These stories are well-known to us, Madiba’s ability to walk with princes and paupers, a man himself destined for greatness. 

But it is the simplicity of M’am Xoliswa’s relationship with Madiba which remains in one’s memory long after her visit to the table during the meal. Madiba didn’t only leave our country better than he found it, he also gave ordinary people a sense of their worth. Ubuntu I am because you are. 

There’s a lesson in that. DM

 

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