Over the past few months, Chief Justice Raymond Zondo has become more publicly anxious about the findings that he made as chair of the State Capture commission.
Back in February, it emerged that the State Attorney’s office had not provided proper funding to defend the findings of the commission. If this funding was not granted by the government, those who challenged the findings (such as ANC Chair Gwede Mantashe and other senior ruling party figures) would win their cases unopposed.
In other words, because the Ramaphosa administration did not pay for lawyers to defend them, some of Zondo’s findings would easily be overturned, wasting years of hard work.
Then, Zondo publicly confirmed that that same office had not even tried to recover R36-million from former president Jacob Zuma.
A court had ordered Zuma to repay the money after finding that he should not have used government money to defend himself in court cases involving him in a personal capacity while he was president.
As Zondo himself has said, the government seems to be deliberately ignoring some of his most important recommendations, including those that are easiest to implement.
For example, he has pointed out that of the 10 recommendations he made to stop corruption in the procurement space, only four have been included in the new Draft Public Procurement Bill.
Just this week, the National Prosecuting Authority suffered the embarrassment of having its corruption charges against former acting Eskom CEO Matshela Koko struck from the roll. This was essentially because prosecutors were not ready to proceed with the case, despite having had years to prepare and the benefit of the information provided by Zondo’s findings.
Read more in Daily Maverick: Throw Eskom chapter of Zondo report in the bin, says Koko as NPA faces major hurdles in Kusile case aftermath
Zondo has also felt it necessary to say: “If another group of people were to do exactly what the Guptas did to pursue State Capture, Parliament would still not be able to stop it — and that is simply because I have seen nothing that has changed.”
This is a powerful point to make. Despite his commission, the testimony that he heard, the findings he made and the acceptance of those findings by Ramaphosa’s government, it could all happen again in the near future.
Zondo has also pointed to some of the individuals implicated in this.
He has mentioned the Guptas by name and answered questions on Newzroom Afrika about Zuma. He said: “As long as the National Prosecuting Authority says it’s got enough evidence to justify prosecuting him, he must be prosecuted. Let the country know that the NPA and the courts will have done their part, and let the executive deal with the public at that time. So I would not say that any trials must stop. I think we must continue doing what is right.”
The Council for the Advancement of the South African Constitution and others criticised Zondo for making this comment. The basis for this appears to be that Zondo, as a judge on the Constitutional Court, may well have to hear a case involving Zuma, and thus he should not be discussing Zuma in public.
Certainly, there is a case to make that as a judge he should not, as the official phrase goes, “involve himself in controversy”.
However, he has a role to play in what was his other position, chair of the State Capture commission.
Sordid details
He spent years of his life listening to the sordid details of how politicians and businesspeople stole from the people of South Africa and he has strong views about what needs to happen in the aftermath.
These views are included in his findings. As the chair of the commission that made those findings, he may also feel a duty to be their custodian.
Legally and technically, these findings are now the property of the government, as the commission was simply a fact-finding exercise on behalf of the President. This means it is up to the government to defend them and implement them.
But, as Zondo has explained so publicly, Ramaphosa’s government is failing to do this.
While lawyers could argue about the legality and correctness of all of this, Zondo may feel he has a moral duty, as a South African and to the oath he swore to the Constitution as a judge, to speak out.
While there is now much evidence that the government is not going to implement his findings before next year’s general election, this does not mean that his time and the money spent on the commission were in vain — although it is easy to forget the full political impact of the Zondo Commission.
When it started hearing testimony, Ace Magashule was the secretary-general of the ANC and appeared to have important political power. He had just managed the process of deciding who would represent the ANC in Parliament ahead of the 2019 elections and appointed Supra Mahumapelo and Mosebenzi Zwane to important positions.
The testimony and findings of the Zondo Commission were part of the process that saw Magashule coming under increasing pressure. When he left the ANC, it was with an almost silent whimper.
This happened in other cases too and helped Ramaphosa create the political ground on which he was able to make progress.
One result of this is that a completely new process chaired by former president Kgalema Motlanthe decides who will represent the ANC in Parliament. This has important long-term consequences.
In short, it was the very public testimony given at the Zondo Commission that allowed Ramaphosa to cement his power.
The longer-term consequence of the commission was the introduction of the “step-aside rule” in the ANC.
The findings of the Zondo Commission will reverberate for a long time to come. They will be used by elements of civil society and some politicians to mount a continuous pressure campaign on the ANC and its leaders.
For example, the DA has gone to court to argue that the ANC’s policy of cadre deployment is illegal. Part of its argument is that Zondo found this to be the case.
Many others will follow their path. Even if the government and Ramaphosa (deliberately) fail to implement the findings, the commission’s conclusions will still have a long-term impact. DM