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Squaring up for a fight: State Capture Report must be protected at all costs

Heinrich Böhmke
By Heinrich Böhmke
12 Feb 2023
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The Constitution assumed the best of our leaders, the Zondo Commission report exposed the worst. Now there’s a raft of complicated review applications against it and all the gains the commission achieved could be reversed if these legal manoeuvres are allowed to play out in the way some implicated parties seek to achieve.

The Constitution was forged about 30 years ago. Although it is difficult to rave about it now as we stand on the brink of state failure, it once gave hope to millions. It promised that our laws would be just and fairly implemented, favouring no class, or gender or political party.

Things went horribly wrong under State Capture. Parliament and the executive ignored statutes carefully crafted to fund and enable delivery. The ANC didn’t care that monies were improperly disbursed, as long as the kickbacks flowed.

ANC patrons grew fat on misappropriated monies. This is why all around us infrastructure has collapsed. Eskom and Transnet gifted billions to the Guptas and their ilk.

Nepo-syndicates stormed provincial procurement projects, like hyenas approaching a carcass. Many municipalities have no money for power, water, roads or sewerage pipes because it has all been stolen.

That is where the Zondo Commission report comes in. In many ways, the report is the Constitution 2.0. The Constitution assumed the best of our leaders, the Zondo Report exposed the worst.

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Constitutional law has long emphasised reining in state power in the name of fairness and equality. The report has reminded us that Lady Justice holds a sword too. In excruciating detail, the report describes the capture of our state. It identifies scores of people implicated in corruption. It thus enables accountability for these grievous crimes.

President Cyril Ramapahosa has said he wants the Zondo Commission to succeed in its work. He has said that the ANC now repudiates corruption and embraces the need for stern consequence. Yet the government’s treatment often suggests an ambivalence to the commission, which has always had to fight for its existence.

Throughout its life there were attempts at curtailing funding. This was not curtailing exorbitance, but smacked of curtailing a workstream’s lines and depth of inquiry. Towards the end, the Zondo Commission simply ran out of money, not scope.

Legal brawl


Now we hear that rafts of complicated review applications are being left to the State Attorney to defend. Not only is the State Attorney grossly overburdened, but the opaque rosters by which it appoints counsel does not select for legal punch.

And a legal brawl this is going to be. The reviews are not a R500,000 Road Accident Fund claim. Depriving the report of the best possible defence has a feel of more of the same, a calculated curtailment of outcomes, a continuation of administrative antagonism on the part of the Department of Justice or sections thereof.

The Zondo Commission is an administrative body, now practically defunct. The precious fruit of its labour is now held under the Department of Justice. The department ought therefore to be responsible for funding the protection of this rich store.

It is obvious that the report should enjoy the most robust defence. Its integrity is at stake and we should trust the commission’s own sense of how these attacks must be thwarted. Unfortunately, the best legal capacity lies in the private sector. If this is where relief lies, so be it.

Although there are only a dozen review applications, the points raised can affect scores of other findings and recommendations.

Assuming the reviews are wrong in law, not only should they be promptly dismissed, but dismissed by heads of argument so thorough that the resulting judgment withstands the very last petition for leave to appeal. 

An even partially successful review could affect the implementation of certain recommendations. It could also delay the resolution of criminal cases.

Discrediting the commission


Some of these reviews are highly politicised. For example, Arthur Fraser seeks to reestablish the credentials of his tenure as head of the State Security Agency by making outlandish claims, such as that the commission was an instrument of a foreign power.

This stuff, unless successfully challenged, struck out or explicitly swiped aside in a judgment, has the potential to discredit the commission in the eyes of the public.

The nitty-gritty of these applications by people with deep pockets and top lawyers must be similarly vigorously defended. All the gains that the commission has achieved could be reversed if these legal manoeuvres are allowed to play out in the way these implicated parties seek to achieve. 

This is not only a billion-rand investment in rebooting the constitutional order that is at stake. It is the constitutional order itself.

Minister of Justice and Correctional Services Ronald Lamola would not want to be the one who dropped this ball. His department has an obligation to fund the commission to do its work properly, till the very end.

The courts have, in fact, enjoined the government to do so through several necessary extensions in time. Surely this obligation includes reviews. 

A ghastly possibility


There is another possibility behind the Department of Justice’s lacklustre defence of the report so far. It is too ghastly to contemplate. This is that the ambivalence towards the commission flows from the ANC’s implication in serious wrongdoing itself.

Perhaps, after Ramaphosa’s direct rivals were removed from contention by State Capture prosecutions, the reformatted ANC would not mind if prosecutions of the rest ran out of steam.

If the commission did happen to be discredited, whole lists of cadres who feature in Volume 6 of the report could once again be deployed (or pacified) as board members, ambassadors, deputy director-generals, committee heads in Parliament and even Cabinet ministers.

These are the sort of positions they are presently denied given the adverse findings and recommendations of the report under the current political mood. But, as I said, this is too ghastly a fate for the report — and for the Republic — to contemplate right now. DM

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