Will President Ramaphosa act on any of the Zondo Commission’s findings?

27 Dec 2021

The impacts of the findings and recommendations of the Zondo Commission of Inquiry into State Capture were the story of 2021. And they will be the story of 2022.

At midnight on 31 December, it will be 1,438 days since the Commission of Inquiry into State Capture was proclaimed on 23 January 2018.

Judge Raymond Zondo will miss the December 31 deadline to deliver the final report of the Commission of Inquiry into State Capture to President Cyril Ramaphosa, but the commission’s secretary, Professor Itumeleng Mosala, will go to court before the end of December to seek a postponement.

Zondo plans to complete an interim report by the end of December, part two of an interim report by the end of January, and part three by the end of February when it will finally shut up shop.

The report that bears his name will make Judge Raymond Mnyamezeli Mlungisi Zondo the person of 2022 even before the year starts. The public awaits the report with bated breath after three years of hearings and was often spellbound by the stories that emerged.

The National Prosecuting Authority and the Investigating Directorate, which will take the baton of prosecuting the cases that the Zondo Commission has uncovered, are waiting too.

And President Cyril Ramaphosa and the ANC have been put under scrutiny by the Zondo Commission, both as a party and a government. When asked about progress against the fight against corruption, Ramaphosa often replies he is awaiting the Zondo Commission report. Daily Maverick readers gave Ramaphosa 2/10 on fighting corruption in a reader survey.

Shape-shifting findings

The commission will make findings on:

How much corrupt networks brought influence and inducement to bear on the National Executive, including deputy ministers;

Whether or not former deputy minister Mcebisi Jonas and former ANC MP Vytjie Mentor were offered bribes and executive jobs by the Gupta family;

Whether former president Jacob Zuma had a role in making these offers;

Whether the president disclosed appointments to the National Executive to the Guptas or others before being formally announced by Zuma;

Whether members of the National Executive, public officials or employees of state-owned entities (SOEs) breached the Constitution or other codes by facilitating the award of tenders to benefit the Guptas or any other family, individual or corporate entity;

The nature and extent of corruption in government;

The nature and extent of corruption in the awarding of contracts and tenders to companies, business entities or organisations by government departments, agencies and entities;

Whether laws were broken in the awarding of contracts, mining licences, government advertising in the Guptas’ The New Age newspaper and other government services in the business of the Guptas; and

Whether any ministers or deputy ministers unlawfully or corruptly or improperly intervened in the closure of the Gupta-owned companies’ banking facilities.

When Zuma signed the proclamation to install the commission on 23 January 2018, he set it a sweeping mandate. So, while it initially had a much shorter intended lifespan, Zondo kept going to court to request more time and to the Department of Justice to request more money. It became such a meme that the commission even featured in the Joburg Theatre’s annual Christmas pantomime, Cinderella, when a character made a crack about its cost and delays.

The Zondo Commission has cost more than R1-billion, but it has negotiated more than this amount back from McKinsey, the global consulting giant, paid R864-million to Eskom and SAA, and R870-million to Transnet.

Investigators, lawyers and other staff have gone for months without being paid as the state bureaucracy put the brakes on its costs. In June 2021, Zondo said that the commission has probably saved South Africa billions more than its costs. “[Ultimately], the commission’s work can’t be measured in rands and cents,” Zondo said. “We have to make sure looting doesn’t happen again. If the looting repeats itself, it would be a serious indictment on us as a country.”

Reams and reams of evidence

Over the years, the Zondo Commission sat hearing testimony in 429 hearings from hundreds of people. More than 779 videos were broadcast or streamed. The testimony is contained in 429 transcripts on 276 reams of paper to tell the story of corruption in South Africa. If laid out, it would cover Manhattan, said the commission’s secretary, Professor Itumeleng Mosala. In the final report, Judge Zondo and his team of former judges, analysts and researchers have to pull together all the testimony to analyse it and make findings and recommendations. The impacts of these will be the story of 2022.

They were the story of 2021 too.

In June 2021, the acting chief justice, Judge Sisi Khampepe, said the vigour with which Zuma peddled his disdain for the Constitutional Court would inspire others. A majority judgment sent Zuma directly to jail for contempt of court after ignoring numerous summonses to appear before the Zondo Commission. Zuma’s jailing caused protests that transmogrified into looting and violence unprecedented in SA’s recent history.

In the end, more than 300 people died, many in Phoenix, in vigilante violence that almost took the province into a race war. Thousands of people were arrested, but neither the police nor the National Prosecuting Authority is any closer to understanding how the conflagration occurred. What is clear is that Zuma’s jailing was the catalyst. Arthur Fraser freed him on medical parole no sooner than he had been jailed in the Estcourt prison, but his jailing was a historical event that is a long tail story that started at the Zondo Commission.

Even though he had proclaimed the start of the commission, Zuma was forced into doing so. Ahead of his jailing in July 2021, in a speech at Nkandla, he said he had warned the ANC against the inquiry, as it would open a can of worms. Zuma appeared at the commission twice but refused to answer the 40 areas of concern that lawyers had marked out in the capture map. Zondo will make the report without accounting for what had gone wrong in the decade he was in charge.

The Constitutional Court’s minority judgment was critical of Zondo. “The court laments the invidious position the Constitutional Court has been placed in by the commission,” said Judge Leona Theron, with Judge Chris Jafta concurring. Zondo should have used criminal proceedings as permitted by the national Commissions Act to force Zuma to respond to the summons, she argued. “The commission transformed the case into one between the Constitutional Court and Mr Zuma, and not one between the commission and Mr Zuma,” Judge Theron wrote.

The commission had laid criminal contempt charges against Zuma, but the Hawks made no progress on the case, reflecting the politicisation of the criminal justice system. This factionalism in crime-fighting was one of the themes explored at length by the commission and is an area on which it is likely to make recommendations.

Waiting for recommendations

One of the most keenly watched recommendations in the Zondo Commission report is likely to be about the set of hearings in January 2021. The acting director-general of the State Security Agency (SSA), Loyiso Jafta, blew the lid on the capture of intelligence and revealed how R9-billion had been looted in false flag operations and the creation of a shadow network of spies.

Together with intelligence officials who testified from an off-site venue and kept their identities anonymous, Jafta revealed how the Zuma administration had used the SSA to build a private army for the head of state. He said that weapons were also unaccounted for in addition to funds being stolen.

When Ramaphosa appeared as the final marquee witness shortly after the outbreaks of the July violence had stopped, the commission’s legal head, Paul Pretorius, had tough questions for him.

Former State Security Minister Ayanda Dlodlo had not renewed Jafta’s contract at the SSA, and the clean-up Operation Veza he had started was stopped in its tracks. Jafta wanted to hand documents to the Investigating Directorate’s Hermione Cronje but they were docked and locked by another intelligence boss.

“The importance of these events came to the fore in July [2021]. I am drawing no conclusions but putting forward propositions. Under lock and key in July were the lists of operatives, the arms details. It would be unfortunate if those activities had a role in the events of July. It’s not an unreasonable proposition, is it?” Pretorius asked the President. To which Ramaphosa replied: “It is a proposition, not unreasonable.”

The commission is also likely to make far-reaching recommendations about the state tender system, the governance of SOEs, the use of middlemen in state contracts, the criminal intelligence system, the powers of the President, the design of Cabinet collective responsibility, among numerous others.

The report and the recommendations will be a moment as crucial as the handover of the 3,500-page Truth and Reconciliation Commission (TRC) report to President Nelson Mandela in 1998.

But 23 years later, the unfinished business of the TRC is still a dominant theme, with prosecutions and policy changes still outstanding. Young activists question the value of the TRC, which plotted a way out of the past for South Africa by offering truth-telling as a form of justice. Such a theory would not pass muster today.

How will the Zondo Commission avoid the pitfalls of its commission report falling into similar traps where administrative and political inaction does not sully its years of work?

Over to President Cyril Ramaphosa

The answer to that problem lies with the Presidency. Once Zondo hits send on the report, the responsibility for action will lie with Ramaphosa. Daily Maverick has not been able to ascertain when it will be released publicly or by whom. Zondo has run the commission as a public process, which has been its power. The nation was able to follow witness testimony. Applications to be heard in camera like that by star witness Norma Mngoma were dismissed because transparency was crucial, Judge Zondo ruled.

He has a responsibility to transparency to ensure that the report is made available to the public, but that is where things get murky.

The report will belong to Ramaphosa, as the Presidency set up the commission. Its release to the public depends on how quickly the President hits the send button. The recommendations are likely to hit the ANC like the Omicron variant has shaken the world.

Ramaphosa also tends to hold on to reports, as he did with the Digital Vibes report of the Special Investigating Unit. Daily Maverick has revealed how the R150-million Digital Vibes public health communications contract was a front for massive enrichment by former Health Minister Zweli Mkhize and a coterie of friends and family.

Until the public cry for transparency got too loud, and it began to look like Ramaphosa was protecting political interests, the Presidency said that the report would only be released after comment had been received by all those implicated in it.

If Ramaphosa follows that line of rationale with the Zondo report, it will not see the light of day. The Commission expects that its report will be taken on review by any number of the individuals against whom findings are made. If it is not released quickly, civil society will likely approach the courts to get access to the report using the promotion of access to information laws.

Because the Zondo Commission took so long to complete its work, the public has grown impatient that prosecutions did not flow from the revelations of wrongdoing.

The snail-slow National Prosecuting Authority and its State Capture Investigating Directorate are finally picking up the pace on State Capture-related prosecutions, which must flow from the commission’s work. Late in December, the Defend our Democracy campaign also started a campaign to get the Guptas repatriated to South Africa from Dubai, where they are said to be holed up. But with a UAE national, General Ahmed Nasser Al Raisi, now the President of Interpol, that is likely to be a long campaign.

What happens to his report is likely to be a factor when Zondo is interviewed as one of the four candidates for the position of Chief Justice in February. He is expected to face questions about why he did not use the commission’s powers to summon Zuma more quickly than he did, which drew the Constitutional Court into the ambit of work that at least two judges felt was not in its interest or scope.

The Zondo Commission was a brave and unprecedented judicial inquiry into corruption by any country. But 2022 will determine whether it will be a process that is consigned to the history books or one that is acted upon to make a substantial difference to the lives of South Africans. DM168

This story first appeared in our weekly Daily Maverick 168 newspaper which is available for R25 at Pick n Pay, Exclusive Books and airport bookstores. For your nearest stockist, please click here.

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