Uncommon sense: Ben Cronin got it wrong — if anyone can get to the root of State Capture, it is Judge Zondo

Let me start by saying that I don’t disagree with all of the sentiments expressed by Ben Cronin in his article “Common cents: The State Capture Commission is itself a symptom of State Capture” (Daily Maverick, 31 May 2021).

But unfortunately, Cronin has based some of his conclusions on misinformation, and I fear that if left without correction such misconceptions may well be absorbed into the public narrative.  

He writes “this commission (Zondo) is in fact itself part of the steady and ceaseless liquidation of the state — which is the true cause of this phenomenon of ‘State Capture’.

“The well-funded commission, which uses private legal inputs in the form of attorneys and advocates who charge by the hour, is duplicating an existing state function, namely that of investigating and prosecuting individual crimes. Rather than looking into the systemic cause of State Capture, it seems preoccupied with the escapades of ‘capturepreneurs’. 

“As this liturgy of quasi-litigation goes on, the real state entities tasked by our Constitution with investigating and prosecuting acts of crime are steadily defunded, depopulated and increasingly rendered defunct.”

It is true that many state institutions have been gutted of their former capacity. It is very likely that the seeds of State Capture as we know it today were sown long ago, during the apartheid era. It is a tragedy that the National Prosecuting Authority (NPA) has been starved of the funding it so badly needs in order to properly do its work.

And I do agree that a well-funded and professionally run civil service could contribute toward preventing future State Capture. But unfortunately, such a robust civil service will remain nothing but a naïve pipe dream if we are to believe that it can be achieved simply by giving it more money. In fact, I believe that if Cronin had paid more attention to the underlying story and definition of State Capture in the South African context that has been emerging from beneath the narratives expressed at the Zondo “reality TV series” rather than relying on his oversimplified version of an outdated World Bank definition of State Capture and his own misplaced assumptions, he would be slow to make such a suggestion.

State Capture in the South African context, after all, is not just a synonym for the privatisation of state institutions. Nor is it another word for many individual acts of corruption. As was once described to me by Paul Pretorius SC when the Zondo Commission first started: if stealing water were an act of corruption, State Capture is the process of stealing the tap.

I assure you that the commission’s understanding of State Capture in the South African context has evolved even further since then, for this is part of the commission’s very purpose: to understand what happened, how it happened, and how it can be prevented in the future.

Far from a story of the perils of privatisation itself, the story of State Capture in South Africa is a tale far more complex and nuanced than that. Told through the narratives of individual witnesses, we have seen patterns start to emerge of public institutions systematically repurposed to serve the interests of a few private individuals. There were some civil servants who tried desperately to do their jobs as professionally as always in the face of this repurposing. Some of them were brave enough to become whistle-blowers. All these whistle-blowers were victimised. Most lost their jobs. Some lost their lives.

For some of the victimised individuals, the Zondo Commission has been the first platform where their stories could be heard. For those who have been implicated, the commission has given them a non-punitive platform to put forward their version as well. Some of them were driven by ambition and the quick road to wealth and success that a captured state could offer.

But in some cases, those implicated in the web of State Capture have themselves been victims: having had their lives and their livelihoods threatened should they not play along. History has shown us that good human beings can do bad things when they are placed under certain kinds of pressure. The South African State Capture story is no exception. The question of how to prevent it in the future, therefore, requires far more than simply providing better funding for the civil service. 

It worries me, therefore, that Cronin could make the assumption that the Zondo Commission is simply duplicating the work of the NPA, and at great cost. I know that it is a common misconception that the commission is some form of court with the power to prosecute individuals. But it most certainly is not. As stated by JA van den Heever, the then chairperson of the Durban Riots Commission:

“The proper function of a commission of inquiry is to find the answers to certain questions put (by the State President) in the terms of reference. A Commission is itself responsible for the collection of evidence, for taking statements from witnesses and for testing the accuracy of such evidence by inquisitorial examination — inquisitorial in the Canonical, not the Spanish sense.” (As cited in Bell v Van Rensburg 1971 3 SA 693 (C) at 707, translation by J Middleton in “Notes on the Nature and Conduct of Commissions of Inquiry: South Africa” at 257).

The Zondo Commission’s specific terms of reference (and the matters on which it must ultimately report to the president) can be found here.

What Cronin should immediately notice about these terms of reference is that nowhere is the commission mandated to hold individuals accountable, nor to secure the prosecution of these individuals. In fact, examination of the underlying causes of State Capture is a far more apt description of the commission’s mandate. As such, there is no duplication of work between the commission and the NPA as alleged.

That being said, it should be noted that evidence uncovered in the course of the commission’s investigations has already been shared with the SIU and the Hawks. Cronin may well imagine that when the commission concludes its hearings at the end of this month that the vast wealth of evidence gathered (both led and unled) would just disappear into the ether, but he would be mistaken. In all likelihood, this evidence will be handed over to the newly established Investigative Directorate of the NPA for them to pursue the prosecution of individual cases of corruption while the commission completes its own task of writing its report for the president.

As such, all that “well-funded” work will not have been wasted.

And on the issue of funding: yes, it is true that private legal counsel and investigators who have been employed by the commission charge at an hourly rate. It is also true that the commission could likely have been more efficient with its resources. But that is something that could have been achieved with better planning, and unfortunately, the nature of the commission’s work did not allow for that.

Initially, the commission was only meant to run for six months. If you read the terms of reference, what is clear is that some specific instances of State Capture were known at the time they were drafted: whistle-blowers such as Vytjie Mentor and Mcebisi Jonas had already come forward. Part of the work of the commission was to invite other whistle-blowers to come forward so that the commission could get the full picture of the nature and extent of State Capture.

It could not have been known at the time how many would come forward, and how extensive the commission’s work would be to properly fulfil its terms of reference. Hence the extensions, and the need for further work to be done. And these extensions were not always expected by the fiscus — therefore it is a mistake to assume that the commission has always been “well-funded”.

In fact, it should be noted that the private legal practitioners who work for the commission do so at a fraction of their ordinary fee, and many have given up their practices to do so. Counsel and attorneys who work for the commission are paid the already discounted state attorney rate, minus a further 20% discount on average. The fee was fixed in 2018 and has not been increased since then.

Then, for a period last year, even that double discounted rate was further discounted by up to 33%. As a result, the commission has benefited from the skills and experience of some of our best private practitioners at a fraction of their normal cost. And despite this, many of these practitioners have waited six months or more to be paid for work done.

I do understand that despite these discounts, the cost of the commission has been high. It may well be that the state could get better value for money in future by establishing a permanent state-funded Commissions Office to conduct such inquiries. But we do not have one yet. What we do have, however, is a commission of inquiry chaired by one of our country’s sharpest judges and staffed by some of our finest independent legal minds who have spent the past three years trying to unravel the web of the uniquely South African State Capture story.

If anyone will be in a position to find the underlying cause of the State Capture disease and answer the question as to how to prevent it from happening in the future, it will be Deputy Chief Justice Raymond Zondo. DM