The findings and recommendations of the Zondo state capture commission were always going to be controversial. After all, its origins were rooted in controversy. But the latest controversy is self-inflicted, and the blame has to be placed squarely at the door of its chair, chief justice Raymond Zondo, who has, wittingly or unwittingly, dragged President Cyril Ramaphosa headfirst into the quagmire. Sadly for the head of our judiciary, no amount of spinning and clarification will cure the defect at this stage.
To recap, the commission was set up on the recommendation of former public protector Thuli Madonsela on the eve of her departure from office, as part of her report on an investigation into state capture and corruption allegations against Ramaphosa’s predecessor, Jacob Zuma, and his friends, the controversial Gupta family (two of whom are now in police custody in the United Arab Emirates).
Owing in part to a lack of time and money Madonsela, now an academic, recommended further investigations by a judicial commission of inquiry and set its duration at no more than a year and a half. Controversially, but understandably, she recommended that the commission be chaired by a judge, to be handpicked by then chief justice Mogoeng Mogoeng.
The reason for the departure from the norm — judicial commissions and their chairs are normally appointed by the sitting president — was that Zuma, then head of state, and his friends were at the centre of the allegations probed by Madonsela, that he had outsourced his presidential powers to nonstate parties.
Zuma tried and failed to stop this through the courts. And once his preferred candidate, Nkosazana Dlamini-Zuma, lost the ANC presidential contest to Ramaphosa in December 2017, his power to continue stalling the commission’s establishment was scuttled. Reluctantly, in 2018 he accepted the person picked by Mogoeng — Zondo — to chair the commission. The lawsuits only stopped once he had left office.
Over the duration of the commission, its terms of reference were tweaked to ensure its findings could be used as evidential material and help make prospective cases prosecutable. Of course, as expected this was seized upon by its critics, who claimed it was being used as a political tool to target for prosecution those implicated by witnesses.
After a late start, the second controversy erupted, namely the huge cost and schedule over-runs. It took R1bn in costs (for accommodation, investigations, legal fees and so on), hundreds of witnesses appearing before it, more than 150,000 of pages reviewed and numerous extensions requested and granted, and more extensions, to finalise the volumes of reports.
Third, since it started releasing — piecemeal — its many volumes, the commission’s critics have sought to rubbish its findings and recommendations as hearsay and nothing amounting to prosecutable cases (only 3%, generously). It didn’t help that recommendations included further investigations after all the costs.
But the most fatal own goal Zondo scored came a week ago. Having asked for another postponement of the release date for the reports, he missed his own deadline. Reasons for the delay: he wanted to check grammar and spelling mistakes and do quality control of the report to the president — lest we forget, another material witness to the subject of the last volume(s).
Zondo’s cast-iron excuses have failed to assuage the legitimate concerns of some members of the public: namely that he was fudging the findings. Worst, the last set of recommendations are so poorly formulated that they sound like a cop-out. Two examples stand out: first, a permanent anti-state capture inquiry; and second, an inquiry into the affairs of the already over-investigated Passenger Rail Agency of SA (Prasa).
Then, Zondo’s frolic off at a tangent: change the electoral system. This is a flagrant disregard of the terms of references of the commission. The commission was meant to inquire into two phenomena — state capture and corruption — not to find solutions to all of SA’s many problems, regardless of whether the electoral system is flawed.
Inevitably, Zondo’s critics have seized on this in addition to accusing him of fiddling with the recommendations and findings, and in the process tainting the process and Ramaphosa (another accused). As expected, the findings and recommendations will now be the subject of multiple legal challenges that will entangle him in legal wrangles for the duration of his term as chief justice.
What Zondo has done through this self-inflicted controversy is to deal more blows to an already fragile country and its economy, which is struggling with an inflation monster and cost of living crisis — nobody is discussing the merits of his findings and recommendations. He has bequeathed to the country more uncertainty through the further investigation recommendations, and he has diverted discourse away from the real subject: was there state capture? And if there was, who should account for it?
With his broad and sweeping recommendations and findings, Zondo has let himself fall into the trap of his critics who, conveniently, have always argued state capture started in 1652 and ought to have been investigated from that period.
What then is to be done? SA is a young country with relatively new and weak institutions. No-one knows how much stress these constitution-supporting agencies can withstand, even with new leadership at the helm. Therefore, a much more progressive approach has to be considered.
We need to lance the boil by — as Madonsela has suggested — considering an amnesty for those who fully disclose their ill-gotten gains (something the chief justice should also have considered). That might allow the country to move on.
• Dludlu, a former Sowetan editor, is CEO of the Small Business Institute.
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