One year on: Costs mount as Zondo asks ‘where do we draw the line?’

In May 2018, the State Capture Inquiry’s team was introduced to the South African public at the Office of the Chief Justice. Names that stuck on my tongue then roll off it now. Among them: senior counsel advocates Leah Gcabashe, Vincent Maleka, Thandi Norman and Paul Pretorius.

During that briefing, Chairperson Deputy Chief Justice Raymond Zondo announced R230-million had been allocated for the Commission’s first six months of work. This week, speaking to Sakina Kamwendo on the SABC show Morning Live, Zondo said R100-million had been spent on the process this year to date.

That brings the price tag to an estimated R330-million and counting.

Turnout this week, during which former Free State Head of Department of Agriculture and Rural Development Peter Thabethe testified, stood in stark contrast with the same day a year prior, when public hearings began.

The hall was brimming on day one (though, as it happens, the first proceedings were rather dull) and hopes were high the first week of hearings, during which Willie Mathebula, Mcebisi Jonas, Vytjie Mentor and Themba Maseko spoke.

A year on, the process seems to have lost some momentum. Former president Jacob Zuma took a swipe at it in late July. Zuma suggested the process, wittingly or not, was part of a conspiracy dating back three decades. Zuma cited an “intelligence report” he did not provide to the commission; he also gave no indication as to the steps he took while Head of State to address the reported conspiracy involving foreign agencies.

On Monday, 15 July 2019 Zuma testified, “I received a report, an intelligence report, which was saying there were three intelligence organisations that met, had a meeting to discuss me and had a plan to begin in 1990 a process of character assassination of Zuma. Two of these organisations came from two different big countries and one of them came from inside South Africa under, which was one of the structures under apartheid, which part of this conspiracy.”

This week, Zondo conducted a series of television interviews on eNCA, Newzroom Afrika and the SABC. Zondo announced the Commission has issued over 700 notices under Rule 3.3. These notices tell people that they have been named in a witnesses’ evidence, and that they could be implicated. It is then up to the letter's recipient to determine if they are implicated, detail this and provide a comprehensive reply. They have 14 days to notify the commission if they want to apply for leave to cross-examine the name-dropper.

This week, Zondo announced the planned extension of the commission beyond February 2020. Already, the work has exceeded the 180 days stipulated in the remedial action of the Public Protector’s 2016 report, which was the catalyst for the commission.

“Our lifespan at the moment goes up until the end of February next year but it’s clear that we are going to have to apply for an extension,” he told eNCA’s Dan Moyane. “We still have a lot of implicated persons who have to be given a chance to give evidence,” Zondo said on Thursday.

Zondo noted that “many of those are not applying for leave to cross-examine and challenge evidence that is given, but despite that there are some that we will call” because of their position in government or society, or the seriousness of the allegations against them.

Zondo says in certain cases, where necessary, the commission will subpoena witnesses. “Right now we are busy making plans to make sure that a lot of implicated persons come to the commission,” he said on television.

He also commented on the absence of preliminary reports on the commission’s work to date, which counts among criticisms of the process. “I would have liked to have already released some interim reports, but one has got to be careful,” said Zondo.

If the high court grants the extension Zondo now seeks, oral evidence could run until the middle of 2020. Thereafter, he wants at least six months to work on the report. If all goes according to plan, the State Capture Inquiry report could be on the President's desk by late 2020, early 2021. It will be the belated outcome of the contested remedial action in the public protector’s State of Capture report of 14 October 2016.

There are, of course, many ironies to the process. Former president Jacob Zuma affected the commission and the Terms of Reference appeared in the Government Gazette on 25 January 2018. This, weeks before he resigned, and after Zuma fought the remedial action through the courts.

Zuma is easily the commission’s most prominent witness to date, if not the most helpful. He was recalcitrant and withdrew his co-operation on the last day of his July testimony before Zondo managed to smooth things over. Zuma is now expected to return at a later stage.

While the hearings constitute a great public arena, a key theatre piece in the era of the New Dawn administration, Cyril Rampahosa’s most public scandal since becoming President derives from the testimony of former Bosasa Chief Operations Officer (COO) Angelo Agrizzi. In January, Agrizzi testified on a R500,000 transfer, allegedly at Chief Executive Officer (CEO) Gavin Watson’s instruction, into an account associated with Ramaphosa’s son, Andile Ramaphosa.

The funds were destined for Ramaphosa’s campaign to lead the African National Congress (ANC). His son’s company Blue Crane Capital was, at one stage, in partnership with African Global Operations, previously known as Bosasa, on a smart cities project. Andile Ramaphosa said in late March that a R2-million payment “was not money for me, it was money for the business”. He added: “I want to categorically state it was not a gift or a favour.”

In a statement signed on 2 July 2019, President Ramaphosa addressed the commission on his interactions with the Gupta brothers and individuals associated with Bosasa. He disclosed that Watson and another Bosasa executive attended the 2018 wedding of Andile Ramaphosa in Uganda.

“I have no recollection of any interaction with them at the event,” wrote Ramaphosa of Watson’s presence at his son’s wedding. He also highlighted that over 1,000 people attended the nuptials, up to 200 of whom had flown from South Africa to Uganda.

Ramaphosa has since faced parliamentary questions and scrutiny from Public Protector Advocate Busisiwe Mkhwebane over funding for his 2017 presidential campaign. Mkhwebane found Ramaphosa breached the Executive Ethics Code and misled Parliament. Ramaphosa is challenging her report.

The idea that ANC leadership campaigns (and, indeed, those of other political parties) are run on ideology alone without cash changing hands seems implausible. As long as that strain of political patronage remains an open secret, proper accountability is a lost cause.

It is worth remembering the commission is inquisitorial and not prosecutorial in nature. There is a palpable yen (among those South Africans convinced State Capture, corruption and fraud occurred) for the suspected perpetrators to be prosecuted.

That task falls to the National Prosecuting Authority (NPA) under National Director of Public Prosecutions (NDPP) Advocate Shamila Batohi. Bathohi said that on her arrival the NPA was like a house on fire and she is cognisant of the “massive credibility challenges” it faces.

Evidence at the commission, including that of former NDPP Mxolisi Nxasana, shows the NPA was systematically weakened by political interference. Hundreds of NPA posts are vacant and money is tight.

In order to successfully prosecute cases related to evidence before the commission, which both an NPA unit and the Office of the South African Revenue Service (Sars) Commissioner are monitoring, indictments must be developed with cooperation from overseas law enforcement agencies.

For such cases to succeed, there must be an emboldening climate Parliament and the NPA, an impartial judicial system that runs like a well-oiled machine, and a surplus of expertise. Skilled prosecutors must fastidiously execute their work, supported by reliable witnesses and watertight evidence, including detailed asset tracing and financial flows traced across the global financial system.

In late 2018, the NPA withdrew charges against eight people accused in the Estina Dairy Project matter in the Bloemfontein Regional Court. The provisional retreat shows the risks of instating charges in a gung-ho fashion before a solid case has been established. After a year of postponements, the NPA fell on its own sword. It is a mistake not to be repeated.

This week, on the same day Zondo visited three television news studios to discuss the Commission, judgement was handed down regarding another Commission’s findings. A full bench in the North Gauteng High Court set aside the Seriti Commission’s findings.

The court found “it is clear that the commission failed to enquire fully and comprehensively into the issues which it was required to investigate on the basis of its terms of reference”. The decision offered a timely reminder that commissions of inquiry are not beyond reproach or, indeed, legal contest.

Kamwendo of the SABC asked Zondo about the ruling. He responded, “We must be careful not to have a situation where next time a judge is asked to chair a commission he or she says, ‘I don’t want to put myself in that situation where I could end up being sued and I must pay costs I because I erred'.”

“So, it’s a question of where we draw the line. You can’t say it should never happen, because you don’t want people to abuse power,” continued Zondo.

Proceedings resume at 10am on Monday, 26 August 2019. DM