Raymond Zondo on Parliament and State Capture – perhaps he had a constitutional duty to speak out

27 Jun 2023

The lackadaisical approach by the other two branches of the state to implementing the State Capture Commission’s recommendations prompted the wrath of the Chief Justice. And his frustration echoes that of many South Africans.

The comments by Chief Justice Raymond Zondo on the first anniversary of his handing over the final reports of the State Capture Commission of Inquiry have ruffled feathers within the legislature and the executive. The presiding officers of Parliament have requested an urgent meeting with him. The principle of the separation of powers between the three arms of the state has been invoked to suggest that Zondo has overstepped the mark. Has he done so?

While the Constitution does not explicitly refer to this cardinal democratic doctrine, let alone seek to define it, some guidance can be found in the constitutional principles that were part of the Interim Constitution, which said: “There shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness.” Therein lies its purpose which finds expression among the foundational values of the Constitution.

It has been argued by Parliament that since Zondo is Chief Justice and head of the judiciary, he should not reflect on their performance. But it is not as simple as that. There is no rigid delineation of powers between the three branches. The overriding thrust of the principle is to prevent the concentration power in any one branch – the mechanisms of checks and balances are intended to mediate that. The tensions that may arise are in fact an indication that the checks and balances are being exercised. If any of the branches adopts a supine attitude it undermines the whole scheme.

Read more in Daily Maverick: Parliament is incapable of preventing another State Capture bid, says Chief Justice Zondo

Apart from being the current Chief Justice, Zondo presided for more than four years at the Commission of Inquiry into State Capture and is in a better position than most of us to understand its impact and ramifications for our democracy. He expressed his dismay that there had been little progress in implementing the recommendations he had made in his reports. In particular he lamented the failure of Parliament to respond with a sense of urgency, repeating the question he has posed before: Would Parliament be able to respond any differently if State Capture were to confront us again? What would it do differently?

It is left to civil society organisations and the media to once again keep the spotlight on the commission’s report and its recommendations.

President Cyril Ramaphosa tabled his government’s response to the State Capture Commission’s reports in October 2022, in a submission to Parliament. He listed what the government would do to implement the recommendations. The reality is that very little has been achieved to date.

Legislation to enhance the protections afforded to whistle-blowers and to make the Investigating Directorate (ID) in the National Prosecuting Authority a permanent structure has yet to be brought before Parliament. The result is that whistle-blowers continue to be victimised, and the ID is unable to offer long-term contracts to attract the skilled expertise it needs. The President has committed to assessing the position of the members of his national executive who were implicated in the commission’s reports – it is unclear whether any progress has been made. What is clear is that no one has been removed from office as a result. These are just a few examples.

Similarly Parliament tabled its implementation plan following the commission’s report and the President’s response on 31 January 2023. It too sets out a mechanical process of how the President’s plan would be monitored and how Parliament itself would implement the 16 recommendations directed at it. The latter focused primarily on Parliament’s core oversight and accountability mandates. The commission concluded that it was Parliament’s deficiencies in this regard that were at least partially responsible for a culture of impunity setting in, leaving the perpetrators of State Capture immune from any form of rebuke or accountability.

Zondo proposed that the National Assembly establish a dedicated committee to oversee the Presidency. Given the role that former president Jacob Zuma played in State Capture, the importance of such a structure should be a no-brainer. Yet the assembly has kicked for touch, deciding instead to investigate the issue further, and will be undertaking study tours to countries such as the UK and France! The assembly also mandated its various portfolio committees to report back to the house at quarterly intervals on tasks assigned to them. No such reports have been tabled as yet.

Despite talking a good game about dealing with State Capture, words are not being turned into deeds. To many it represents a pattern of inaction following various commissions of inquiry or other pronouncements by expert bodies. This is particularly so when the commission named several senior figures from the ruling party, and those with close links with the ruling party, as persons implicated in State Capture.

It is left to civil society organisations and the media to once again keep the spotlight on the commission’s report and its recommendations. While State Capture as it was brazenly practised during the Zuma era may have dissipated, large-scale corruption continues to plague us with ever-increasing links to organised criminal syndicates. It may be morphing into something more deadly and difficult to eradicate.

Read more in Daily Maverick: State Capture 2.0: The corruption warning lights are flashing on the SA political patronage system

It is therefore in this context that we should locate the remarks made by Chief Justice Zondo. It is this lackadaisical approach by the other two branches of the state that prompted the wrath of the Chief Justice. His frustration echoes that of many South Africans who see the impact of this inaction in deteriorating socioeconomic conditions.

It must also be recognised that the Chief Justice has a responsibility to promote and strengthen the rule of law. Not only did State Capture undermine the rule of law, but the failure to address it further threatens it. Perhaps Zondo had, not just a responsibility, but a constitutional duty to speak out.

South Africa’s constitutional democracy was put to the sternest test by State Capture. Of the three branches of the state, only the judiciary emerged with its reputation intact. The presiding officers of Parliament should pause to reflect on that before they meet the Chief Justice this week. DM

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