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(Still) waiting for Zondo (report)… But what happens next?

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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.

As the nation waits for the release of the fifth and final volume of the report on State Capture, questions must be asked about what happens next: Police investigations and considered, effective responses from the NPA or likely decades of contestations against Zondo’s findings?

In what could be described as contempt of the Pretoria High Court order, the Zondo Commission of Inquiry into State Capture failed to meet its 15 June deadline to submit the fifth and final volume of its report to President Cyril Ramaphosa. 

This last report is a crucial piece of the State Capture puzzle in that not only does it have to include investigations into the SABC, the State Security Agency, Estina Dairy Farm, the Passenger Rail Agency of South Africa and the Waterkloof landing by associates of the Gupta family, it importantly had to tie all the five reports together by making overall recommendations. 

The State Capture inquiry chapter will ceremoniously be concluded on Monday, 20 June, at the Union Buildings with the fifth report handed to the President. The event will mark the culmination of years of investigation and subsequent public hearings by Chief Justice Raymond Zondo. 

What does the nation expect after the fifth and final part of the State Capture report? 

Prisons full of individuals with pilfering hands or likely decades of contestations against Zondo’s findings through judicial reviews and Stanlingrad-style delaying tactics aimed at obstructing and defeating any reforms suggested by Zondo? Or will we see a response by the National Prosecuting Authority (NPA) to the findings of the commission that are measured, accompanied by investigation solutions that are well considered? 

The first four parts of the Zondo report demonstrated rampant corruption involving government entities, officials and rent-seeking individuals. Past and current Members of Parliament (MPs) have been implicated in the reports. We have heard testimony of one hand not knowing what the other is doing, or perhaps wilful blindness to the wrongs the other hand is committing.

Ineptitude

Police investigations and NPA prosecutions are undeniably the major expectations. Unfortunately, the recent saga of the NPA not responding to information requests by the United Arab Emirates (UAE) authorities to help identify the Guptas is a worrying prime example of government ineptitude. 

This ineptitude will enable the Guptas, whose fingers are all over the State Capture project, to be away from the heat that is felt by all other suspects and alleged perpetrators of capture. 

“For now, it is the Gupta henchmen, enablers and former business associates who are facing the music — and if not yet, they are certainly sweating amid the NPA’s pledge of delivering several ‘seminal prosecutions’ in the coming months,” argued Jessica Bezuidenhout for Scorpio

One hopes the implementation of the Zondo commission’s recommendations will not be another case of the more things change, the more they stay the same. Now is the time for both our executives — the SA Police Service (SAPS) and the NPA — to serve as a model for accountability and sustainable craft prevention reforms. 

The SAPS’s resolve to arrest perpetrators of State Capture and related corrupt activities without fear or favour will be under the spotlight. The last instalment of the State Capture report can be best described as déjà vu or groundhog day for our criminal justice system. 

There have been significant commentaries and research on State Capture and corruption. It is now time to translate all that has been exposed into launching pads for liability and accountability. 

The Zondo commission has provided an outlet for the SAPS and the NPA to get their hands dirty, which includes accurate and reliable testimonies and not-so-accurate testimonies or accounts of wrongdoing. 

The impetus law enforcement agencies and the NPA needed has always been there. Regardless of the impetus, unfortunately, the dearth of accountability is disturbingly there for everyone to see, prompting the question if the Zondo commission’s recommendation will be implemented genuinely. 

Cold cases?

The fifth and final Zondo report puts the focus on the NPA and relevant law enforcement agencies to show the public that the money spent on the Zondo commission was not a total waste. 

Anyway, the status quo regarding how, and the speed with which, South African authorities deal with corrupt companies and individuals is a telling point. Will some of the cases go cold because the lives of some suspects expired before anything concrete is done?

For example, as reported by the US Department of Justice on 24 May, global commodities firm Glencore filed a guilty plea consequent to an investigation by Brazil, the UK and the US of its actions that included market manipulation and more than $100-million worth of bribes to officials in Brazil, Cameroon, Ivory Coast, Equatorial Guinea, Nigeria, Congo, South Sudan and Venezuela between 2007 and 2018. 

The African Energy Chamber (AEC) moved swiftly and, on 13 June, issued a media statement calling for the Extractive Industries Transparency Initiative (EITI) to terminate the membership of Glencore. 

“The scope of this criminal bribery scheme is staggering. Glencore paid bribes to secure oil contracts. Glencore paid bribes to avoid government audits. Glencore bribed judges to make lawsuits disappear. At the bottom, Glencore paid bribes to make money — hundreds of millions of dollars. And it did so with the approval, and even encouragement, of its top executives,” said US Attorney for the Southern District of New York, Damian Williams, in a media statement. 

Even with Glencore featuring as an alleged victim in the State Capture commission hearings, the South African authorities have not been loud enough regarding the latest developments and the recent guilty plea by Glencore in New York to multiple charges of market manipulation, bribery and corruption. 

Former Eskom acting chief executive Matshela Koko complained that he had opened a criminal case against Ramaphosa and Glencore in 2020, but had received a cold shoulder from South Africa’s criminal justice system.

More equal than others

There is a particularly important statement by US Attorney General Merrick Garland regarding equality before the law: “The rule of law requires that there not be one rule for the powerful and another for the powerless; one rule for the rich and another for the poor…” 

According to Garland, the criminal justice system “will continue to bring to bear its resources on these types of cases, no matter the company and no matter the individual”. 

One wishes that this was the ideal in South Africa and that Shamila Batohi’s NPA had the same fortitude when it came to dealing with all those involved in corrupt practices. 

Any attempt to derail attempts at reform, liability and accountability relating to State Capture can be thwarted if we have a vigilant public that will foster the often-absent political will towards implementation.

Importantly, the takeaway is the gory details of the revelations at the commission and how State Capture violated every citizen’s human rights and dignity. 

Also, the government cannot afford to split hairs when it comes to MPs who are implicated in the report(s). In May, National Assembly Speaker Nosiviwe Mapisa-Nqakula briefed opposition leaders about the process Parliament was following to implement the findings of Part Four of the State Capture report. 

In particular, the four parliamentarians named in the fourth part of the report had been referred to Parliament’s Joint Committee on Ethics and Members’ Interests for it to further probe the allegations. 

One hopes accountability is not going to be delayed by mounting serial “further probes” on one issue and classifying some of the most serious acts of corruption by MPs as a less harmful breach of the ethics code. 

As citizens, we can only hope that Parliament can remain true to its words that it is in the process of “establishing appropriate systems” for the implementation of the recommendations of the State Capture reports. 

Further, the ANC as the ruling party that has been scarred directly or indirectly by testimonies at the Zondo commission, will have 110 reasons to honour its commitment made at its 8 January birthday event in Polokwane to support the implementation of the Zondo reports and any recommendation made by the Chief Justice.  

“The ANC will support the government in effecting the measures required to eliminate conditions and conduct that enable state capture and systemic corruption,” said Ramaphosa. 

The jury is still out. DM

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  • Parliament can remain true to its words – it hasn’t so far. Not even the Prez. Hope is the wrong expectation. Citizens need to demand accountability or take it at the ballot box. If we can’t get it we become another failed state of an ailing continent.

  • It is a disgrace that the Chief Justice himself does not adhere to a court order. And then to ‘discuss’ the report with cr, who has definitely to answer for the cadre deployment disaster of the anc rulers, just makes a mockery of the legitimacy of the whole saga.

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