How the final state capture report lets South Africa down

24 Jun 2022

Few people would dispute that the task of the Zondo Commission was difficult and arduous. But that does not mean that its final report should be considered above criticism — and in truth, there is a fair amount to criticise.

The job undertaken by Chief Justice Raymond Zondo and his team over the past four years has been unenviable, to say the least.

To chart the course of something as complex as State Capture — a concept which the final Zondo report acknowledges lacks fixed universal meaning — over more than 429 days of arduous hearings, often featuring infuriatingly uncooperative witnesses giving starkly opposed testimony, all the while facing scurrilous attacks on your character, as well as physical threats…

Who would want that gig? Clearly, not many people: Zondo told the JSC last year that a number of judges had been approached to chair the State Capture inquiry before him and had turned it down. Those who say that South Africa owes gratitude to Zondo and his team are quite right. The toll that the commission took on the 62-year-old Chief Justice seemed evident at the official handover of the final report on Wednesday, where Zondo looked visibly emotional — probably at least partly from a sense of relief that the job, at last, was done.

Zondo won the admiration and affection of much of the South African public, not just for his willingness to take on this hugely important work and the fact that he treated every witness as worthy of dignity and respect, but also for his deeply human responses during the commission’s hearings.

The judge did not hide his sense of shock and dismay at various points in response to the story unfolding before the commission as to how South Africa was bought and sold at the expense of the country’s ordinary citizens. The question of how this could have happened, at the hands of a government led by people who had suffered so much in battling the apartheid regime for the greater good, seemed to weigh on Zondo very heavily.

Frank Chikane

Never was this more on display than when Struggle veteran Frank Chikane appeared before Zondo in November 2019.

How could it be, Zondo asked Chikane, that people who played such a heroic role in the anti-apartheid movement “have got themselves into serious matters of crime, corruption and doing things that are very much contrary to serving the people for whom they were prepared to sacrifice so much before”?

That was not, of course, the question that the State Capture commission set out to answer. But what Zondo was articulating there is perhaps the central, devastating question of South Africa’s current predicament. His apparently sincere sense of confusion and betrayal is one shared by many, many South Africans. Zondo’s willingness to give voice to those feelings is what elevated him in the public understanding to a position far surpassing that of just another judge chairing just another commission of inquiry, to something more like — at the risk of hyperbole — South Africa’s embodied moral conscience.

But this kind of symbolism is impossibly weighty for one individual to carry indefinitely, and over the past few months there have been amplifying reminders that Zondo is, ultimately, a mortal man with inevitable human flaws.

In legal circles, Zondo’s slow pace of work and occasional haplessness in the face of administrative demands and digital technology are no secret. This is why some felt that despite his strong judicial mind and his abundant quantities of kindness and decency, Zondo might not be the ideal candidate for Chief Justice — a role which requires a kind of managerial, multitasking wizardry.

Deadlines

Zondo’s struggles in this regard were brought ever more sharply into focus by the succession of commission deadlines that whizzed by as extension after extension was needed to complete the work of the inquiry. Naturally, these delays cannot solely be blamed on Zondo’s inefficiency, given both the scale of the job and the number of people required to pull together 429 days of testimony and hundreds of thousands of documents and financial records into one definitive guide to understanding what the hell happened to South Africa under the presidency of Jacob Zuma.

But ultimately, as the chair of the commission, the buck stops with Zondo. With his typical (and often refreshing) guilelessness, he had no trouble admitting to an SABC interviewer shortly after he was appointed Chief Justice that perhaps he had botched the timeline for the amount of work required. Perhaps he should indeed have simply requested “one big extension” rather than innumerable small ones, which certainly contributed to a kind of growing unease that things at the State Capture inquiry might not be as under control as many of us hoped.

On one point Zondo was definitive and convincing: he, of all people, wanted to get the job finished as soon as possible. With the commission reported to be working around the clock to file the final report, how could it not be affecting his multiple competing obligations as Chief Justice? He was also supremely aware of the brewing public frustration around the duration of the commission’s work — although it must also be said that the media at large, in deference to the significance of Zondo’s mission, has exercised an unusual degree of charitable patience around the endless delays.

Indeed, there has been very little criticism at all of the commission’s work — aside from the noise (and aforementioned threats) stemming from those with an obvious political interest in undermining its results.

Finally, now, Zondo’s work is done. In six volumes spanning more than 5,500 pages, the story of State Capture and its criminal masterminds has been laid bare.

Except… has it really?

Disappointing

Given the level of adulation Zondo is receiving in many circles currently, it feels almost traitorous to suggest that the commission’s final report is disappointing.

But it is hard to know how else to describe a document which, at a time when many South Africans will be looking to it to make sense of our recent past, does not attempt to provide anything in the way of a conclusion, or even a summary of key findings.

We were told in advance that this final report would include an “executive summary” of the commission’s work and findings. It does not. In its place, there is a list of the recommendations relating to each matter investigated — with the exception of the Vrede Dairy scam, which seems to have been omitted by mistake. Recommendations made in respect of work covered in previously released instalments of the report appear to have been simply cut and pasted from the original volumes, amounting to a wodge of rehashed testimony and deadening lists of the government functionaries in need of further scrutiny by law enforcement.

What really happened?

Glaringly absent is what we arguably need most to settle the violently contested historical record: an overarching narrative that at least makes a stab at clearly laying out what happened, how and why it happened, and who was responsible.

Of course, those with the appetite to wade through 5,500 pages will be able to cobble together a kind of narrative themselves. But leaving this as a DIY project, or entrusting it to journalists to alchemise into a digestible story for the public, means that the commission’s work is left wide open for misinterpretation or exploitation to serve particular ends.

There are many other issues. The final report is awash with grammatical and other errors and has been inadequately edited. The tone and substance of each part differ almost schizophrenically from one to the next, which is clearly a reflection of different writers taking the helm without a subsequent attempt to standardise the style.

In some volumes, highly specific advice is given to the National Prosecuting Authority as to who to investigate for which exact crime. In others, the recommendations are almost comically vague. Here’s a direct quote: “It is recommended that the law enforcement agencies should conduct such further investigations to establish whether any of the persons implicated in the wrong in this report did not commit one or other crime.”

Perhaps these gripes seem superficial, or largely aesthetic. But this stuff really matters.

US Congressional hearings

Consider the fact that the current US Congressional hearings on the storming of the Capitol by Trump supporters are being stage-managed and produced by a former top TV news executive.

The reason behind this, as an NPR correspondent explained, is to try to create “a narrative storytelling arc” that has the greatest chance of “punching through” to the public, in the face of attempts from Trump allies to dismiss or politicise the hearings.

By making the hearings as accessible and compelling to the public as possible, the NPR correspondent explained, the bipartisan January 6 panel is hoping to “capture and define the narrative about what these findings mean”.

Without that official stamp, the question of what really happened risks being answered simply by whoever shouts the loudest. This is as true for State Capture in South Africa as it is for the US Capitol insurrection.

Further problems

There are further problems with the final Zondo report that extend well beyond cosmetic or linguistic concerns.

The part devoted to State Capture at Prasa concludes with the recommendation that another commission of inquiry be established to investigate State Capture at Prasa.

There is a general recommendation that a kind of permanent, ongoing State Capture commission be established, which is visualised as having the legal power to summon seemingly any South African — whether in the public or private sector — suspected of corruption to account for themselves “in the full glare of TV cameras”.

It surely requires no more than a few minutes of contemplation to realise just how sinister and McCarthy-esque such a body would be in the wrong hands. This hypothetical entity would be legislatively superior to Parliament, which would require unfathomable constitutional contortions to establish. But how it would work in legal terms is apparently of no concern to Zondo’s team, since there is no attempt made to even begin to sketch the real-world framework in which this idea might come to fruition.

The same goes for the concluding recommendation that South Africans be allowed to elect a President directly, which is an idea that many will find wildly appealing but which again, in legal terms, is virtually unfeasible.

To get a sense of the level of reasoning advanced around this particular proposal, please read the explanation of why this electoral reform is to be recommended even if South Africans end up electing some demented monster:

A system where the voters vote for the President directly is no guarantee that a person of wrong character will not win the Presidential election and become the President. However, if that were to happen in South Africa after this recommendation has been accepted and implemented, the consolation will be that the people elected their own queer character or a person who has no integrity and, if he or she ever facilitated a capture of the State by private individuals or entities as Mr Zuma did, the people can blame themselves for electing such a person to the highest office in the land.

This is simply embarrassing.

Yes, Zondo and his team deserve our gratitude. But what the South African public deserved in return was a great deal more than we ended up receiving — from a final report which tragically bears the signs of being exactly what it was: a rush job. DM

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