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The final chapter of the Zondo Commission and the way forward on accountability

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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.

State Capture will go down as one of the major corruption and maladministration scandals in the history of democratic South Africa, under the government led by the African National Congress.

Without boring readers with the details of the genesis of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State (aka the State Capture Inquiry or Zondo Commission), suffice it to say that the capture of the state has been widely reported inside and outside of South Africa. 

For instance, Jane Flagan wrote in The Times (UK) newspaper: “At the heart of the ‘state capture’ investigations is the shameless abuse of power and the colossal plundering of state coffers by Jacob Zuma and a cartel of cronies, including the all-powerful Gupta family.” 

It has been 4½ years since the establishment and operation of the Zondo Commission, and the public has waited long for the fifth and final report that should bring closure to the proceedings of the commission. 

The report comes in two parts: Part V (two volumes); and Part VI (four volumes). Disappointingly, it must be said, the public also had to suffer postponements and delays in the handover of this report. What this inexplicable delay has managed to create is a blemish on the credibility of the commission and the report. Conspiracies and speculation flew all over the place. Some alleged a possible attempt by the government to cover up or soften revelations implicating top government officials.

The Democratic Alliance is fuming and took a different spin on the delays, arguing that President Cyril Ramaphosa’s meeting with Chief Justice Raymond Zondo was a dangerous interference in the judiciary.

“This constitutes a dangerous and unacceptable interference in the judicial process, which casts a long shadow over both the independence of South Africa’s judiciary and the credibility of the Presidency … any suggestion that the President may be interfering with the independent work of the commission or manipulating the timing of the report’s release is rightfully met with suspicion,” said the DA. 

Zondo, in his introductory words at the handover event, apologised to the President and the country for having to wait for the report, blaming the delay on some undisclosed challenges.

I only managed to scan Part V, Volume II of this voluminous documentation. In a nutshell, read with the other four reports, it shows clearly how private interest and political control were exerted over the State. 

The influence of the Guptas and other private interests such as the company Bosasa (now African Global Operations), which would be embarrassing for any government and governing political party in an open and democratic society, manifested itself through many cases of processes and institutional abuse. 

As codified in the Zondo reports, there are serious cracks and inefficiencies in our institutional structures that have allowed significant abuses of the system, enabling private individuals and politicians to gain sway over the executive, law enforcement and state-owned enterprises (SOEs). Systemic weaknesses in the implementation of accountability and the exercise of the rule of law were exploited without any shame and the fat cats became fatter over the years.

Nobody can deny that the criminal enterprise in South Africa has grown exponentially to the extent that people like the journalist Pieter-Louis Myburgh can be forgiven for calling the country a mafia state – which began before the transition to democracy and continued after 1994. Interestingly, this is an observation echoed by state functionaries. In 2021, Treasury Deputy Director-General Ismail Momoniat warned that South Africa was in danger of becoming a mafia state. Ramaphosa, when he was still the Deputy President, also warned that South Africa risked becoming a mafia state if grand corruption was not probed and decisively dealt with. 

The bottom line is that there has been and continues to be a subversion of the promise of democracy and the criminalisation of the state or parts of South African state institutions. Inasmuch as there is corruption in the private sector, the bigger problem in South Africa has been and is that the corrupt networks of public servants, senior government officials, politicians and domestic and multinational business organisations have their tentacles all over state institutions to abuse them for financial gain. 

The smell of poverty in South Africa, the unemployment of young people while some fossils hang on to state jobs over multiple decades, and the lack of service delivery or poor service delivery due to corrupt practices demonstrate that corruption is a public concern, not just as a moral issue but also a violation of human rights, democratic principles and constitutional values. Corruption in South Africa has diverted public money and resources into the hands of crooked politicians, businesses and their agents. 

Testimony at the Zondo Commission highlighted the acute perversion of public policy decisions to suit the interests of the rich and powerful.

It is unfortunate that the period of State Capture and political clientelism has seen South Africa becoming a playground and haven for corrupt individuals. It is not an over-exaggeration to say that corruption in South Africa is a pandemic that our government is battling to combat. For instance, in the Corruption Perceptions Index of 2021, South Africa remained unchanged at 44 index points. The maximum level was 56.8 index points and the minimum 41 index points. 

Thus, we have seen South Africa stagnate in the fight against corruption. The civil society group Corruption Watch, in its annual report for 2021, said that corrupt practices had continued to affect South Africa after the pandemic, and for the last decade the government had failed in its efforts to make real inroads against the root causes of corruption. Corruption Watch pointed a finger at a leadership crisis in which politicians and administrators serve their personal, factional and private interests, rather than the interests of the people or the Constitution. Right there, a nail hit on the head. 

Ramaphosa has and is trying to roll back the impact of State Capture, with some success. However, the continued inefficiencies of the state, a wave of criminal interests inside and outside of the state, and his own challenges such as the Phala Phala robbery are undoing his best efforts.

Weighing into the delay of the release of the final report, the DA argued: “One can only assume that President Ramaphosa is seeking to delay the release of the final Zondo Report for two reasons: because it directly implicates him in State Capture, and because the timing of the release is inconvenient given the current controversy surrounding the theft of 4 million US dollars from his Phala Phala farm in 2020.” 

One hopes that the President’s own woes are just a temporary fork in the road and he will deliver South Africa to the promised land of a corruption-free society, characterised by a heavy emphasis on liability and accountability. In his endeavour to implement the recommendations of the Zondo report, hoping that his government and political nemeses rally behind him for the public good, he will need help and advice. The President and the members of his government who are prepared to sacrifice their bread and butter from the state to rid South Africa of the scourge of corruption must not be deterred. It will be an embarrassing moment in the history of South Africa to have State Capture crimes prosecuted by foreign authorities like the FBI because our law enforcement authorities are too timid to act. 

By the way, we can be certain that the US will act if the Zondo report shows links to its jurisdiction. This is permissible in terms of the US Foreign Corrupt Practices Act, which gives it extraterritorial jurisdiction for corruption by individuals and companies with links to the US.

The DA will continue to keep pressure on Ramaphosa and the National Prosecuting Authority (NPA) to ensure that no one slips through the fingers of the law and that the travesties of justice that have occurred over the last two decades never happen again. 

It is to be expected that there will be political rhetoric to delegitimise the findings and recommendations of the Zondo Commission, and parts of the report will be taken on judicial review. The ANC chairperson and mineral resources and energy minister, Gwede Mantashe, has already voiced his intention to take Zondo’s report on judicial review regarding his Bosasa dealings. That said, one hopes that our leaders, politicians and government officials are mature enough to put the interests of the country ahead of their own, and to realise that any attempt to totally discard or resist the implementation of the Zondo report will lead to a huge constitutional crisis.

Previously, I asked the question: What next for South Africa after the Zondo report has been made public? Ramaphosa has indicated that he will forward the report to Parliament with an indication of what needs to be done regarding the implementation of its recommendations. There is an expected to-do plan from the President in the next 4½ months. I would say to the President that the following must be done: 

Establish an independent anti-corruption agency: Part One of the report — dealing with South African Airways and its associated companies; The New Age and its dealings with government departments and SOEs; and the South African Revenue Service (SARS) and public procurement in South Africa — recommended the establishment of an independent agency against corruption in public procurement. This body — with investigative and prosecutorial powers — must have a standing similar to other Chapter 9 institutions such as the Equality Court.  

Introduce deferred prosecution agreements, and ease the State Capture crimes backlog: Another recommendation in Part One was that the government must introduce legislation that will see the introduction of deferred prosecution agreements, in which the prosecution of an accused corporation can be deferred on certain terms and conditions. 

The investigation and prosecution of the State Capture kingpins and other villains will be a challenging and contested terrain. Deferred prosecution agreements (DPAs) will be a sweetener. There is, of course, a caveat to the prosecution agreement, should it be introduced to expedite investigations and prosecutions: Nobody must escape liability and accountability, and such agreements should not be abused to sneak in amnesty for State Capture perpetrators to escape with impunity. 

There is going to be a drawn-out process to reach the prosecution stage of the State Capture backlog. Arguably, the DPA practice is closely related to out-of-court settlements, which are not used in the South African criminal justice system. As argued by Tabitha Paine and Ra’eesa Pather in their Daily Maverick opinion piece, the pros and cons of deferred prosecution agreements must still be taken into account. 

Intensify investigations against alleged perpetrators of State Capture: The NPA and law enforcement agencies must speed up and intensify investigations as it was proposed and/or recommended by Zondo in Part Two to Part Four. It is indeed now or never for the NPA to act decisively and prosecute State Capture crimes. Part Four, dealing with Eskom, the National Treasury and the Free State asbestos scam, recommended that law enforcement agencies conduct such investigations as may be necessary with a view to the possible prosecution by the NPA of former Eskom officials implicated in the facilitation of unlawful contracts, corruption and financial misconduct and breaches of the Public Finance Management Act (PFMA). How many former Eskom board members have been locked behind the doors of our prisons? The failure to exercise their fiduciary duties and prevent financial prejudice against Eskom, as required in sections 50 and 51 of the PFMA, is now felt by the entire country. 

Limit the broad discretion of the NPA in State Capture decision-making: Though the commission recommended that law enforcement agencies and the NPA investigate and prosecute the alleged perpetrators of State Capture, it must not be forgotten that the wide discretion these authorities have may be counterproductive. If kept too wide, their discretionary powers may be used to abandon significant State Capture prosecutions and shield some politicians and government officials from criminal liability. Thus, there is a serious need to reconsider the power to declare nolle prosequi (“will no longer prosecute”) by the NPA. Any suspicion that the NPA and law enforcement agencies drag their feet to investigate perpetrators, or that a decision or omission to investigate is politically motivated must be investigated by an independent watchdog. 

Revisit an independent investigation into the role of the criminal justice system in State Capture: When asked why there was no finding concerning the criminal justice system, the Chief Justice indicated that it would have been a burdensome investigation to undertake alongside other investigations. Zondo did, however, disclose that the commission had commenced an investigation into the law enforcement agencies and that a team was set up for this purpose. But it became clear that this investigation will require much time. 

The criminal justice system was spared the embarrassment of being found to have been captured because a thorough and wide investigation was needed. Still, this inquiry is needed. As Part V, Volume 1 of the Zondo report (dealing with the State Security Agency) puts it, using the old Roman adage: Quis custodiet ipsos custodes? (Who will guard the guardians themselves?). The report points to obstruction in investigations, prompting the commission to recommend that all units of the SAPS give the Crime Intelligence unit full support in its investigation of corruption, and vice versa [P460].  

Who are the guardians protecting? Are they captured or in the pockets of some political elites? Zondo, in Part V, Volume 2, has “decided that a special commission of inquiry be appointed to examine specifically why… Prasa was allowed to slide into almost total ruin, who should be held responsible for that and who could have benefited from that unacceptable state of affairs [p.854]”. The special Prasa inquiry can wait and priority must be given to determine if the criminal justice system (including the judiciary) is or was captured. 

A proper vetting system of who gets employed by the government must take place:  The commission, in Part Two, suggested the establishment of a body that is responsible for the recruitment, selection and appointment of members of SOE boards, including the CFOs and CEOs. The establishment of such a body or agency is overdue. Our SOEs are in ICU and corrective measures must immediately be implemented.

Foster the culture of accountability: There is no doubt that the system for holding politicians and government officials accountable is ineffective and sometimes inconsistent. The available disciplinary bodies are not proactive or lack proactivity. Instead, political machinations and soft approaches such as the “step-aside” rule are used to ease pressure on politicians and delay genuine criminal liability processes. Perhaps a shake-up is needed in the Public Service Commission (PSC). The PSC, as a Chapter 10 institution, must be seen in the wake of the Zondo report to oversee public administration and demand accountability and responsibility for good governance. 

It is important that all accountability and oversight institutions in South Africa are staffed by honest men and women with integrity and political willingness to assist in the implementation of the Zondo recommendations. We have seen that some of these institutions or individuals from these institutions have been complicit in State Capture and related corrupt practices.

Bring the Guptas to South Africa for trial: The NPA is embarking on a spin-doctoring exercise to convince the public that it has not been sloppy in the processes aimed at extraditing the Guptas from the UAE. Unfortunately, the horse has already bolted for the NPA to start playing the victim of misinformation. What it must be focusing on is bringing the Guptas back to South Africa for trial. The Guptas will unlock many State Capture investigations.

I will conclude with the question I asked in 2020 in an opinion piece titled: “Is the Zondo Commission report destined for the dustbin, or for the annals of history?” Another previously asked question also remains: Can we trust the ANC to implement the recommendations of the Zondo Commission? 

Will any of the opposition parties have the political will and decency to rally behind efforts to implement the report? Can Parliament be the difference-maker and implement the recommendations of the Zondo Commission? I am comforted by the words of the President at the handover event: that the report is far more than a record of corruption. It is also an instrument through which the country will work to ensure that this will never happen again. 

It is South Africa’s blueprint of accountability in the fight against corrupt practices, and the opportunity for a decisive break from the era of State Capture. Zondo himself believes that the recommendations made in the report will be significant in the rooting out of corruption in South Africa, should they be genuinely implemented. DM

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