Guest Column

State capture: A commission without a plan

2018-03-11 06:06
Deputy Chief Justice Raymond Zondo. (Alex Mitchley, News24)

Deputy Chief Justice Raymond Zondo. (Alex Mitchley, News24)

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While there is much to commend the team that Deputy Chief Justice Raymond Zondo has assembled to conduct the judicial commission of inquiry into state capture, we must not become complacent in assuming that it is “job done”.

The involvement of former auditor-general Terence Nombembe and experienced advocate Paul Pretorius SC to head the investigations and legal teams will ensure the work is professional, robust and vigorous.

However, there are aspects of Zondo’s initial announcement on Wednesday that point to gaps, oversights and potential weaknesses which must be closed and overcome. Prominent among these is the crucial issue of time frames.

Zondo stated the work of the commission could not be completed in 180 days as envisaged and that he was consulting the presidency to amend this. It must be remembered that this period formed part of the remedial action in the Public Protector’s State of Capture report, which was subsequently made an order of court, in former president Jacob Zuma’s failed bid to review the remedial action.

The high court ordered that the commission “is to complete its task and present its report with findings and recommendations to the president within 180 days”. This cannot merely be amended through a discussion between Zondo and the president; the court order must be varied through due process.

Zondo must surely motivate why he is unable to complete the task in the period provided and why such an extension is required and – this must be done openly and transparently in the public interest.

It was disconcerting that Zondo slipped in comments the investigations would start “in a few weeks” and hearings “in a few months”. With a strict time frame in place, greater specificity is essential.

Zondo suggested the commission’s work would be deemed to commence on March 1 whereas it was appointed on January 25, the date of its announcement in the Government Gazette.

The enormity of the tasks facing the commission cannot be underestimated but we must also acknowledge they are not starting from scratch.

The terms of reference state that the commission shall be “guided by the Public Protector’s State of Capture report” and list nine issues that are to be investigated. Seven of these issues were covered, albeit not conclusively, in the public protector’s report. Zondo did not explain or articulate how he interprets the terms of reference and how he intends to approach them.

The issues to be investigated include improper influence over members of the executive and officials in organs of state or state-owned enterprises; whether the Guptas offered Cabinet posts to Mcebisi Jonas and Vytjie Mentor and whether Zuma was complicit in this; whether the Guptas were aware of Cabinet changes before they were announced; unlawful conduct by members of the executive or state functionaries in awarding tenders to Gupta-related entities, including mining licences and advertising in the New Age; whether ministers or deputies improperly intervened in the closing of banking facilities for the Guptas; whether Des van Rooyen’s two advisers who accompanied him on his weekend shift at Treasury were properly appointed.

The two broader aspects of investigation relate to corruption in the awarding of tenders and contracts by public entities and government departments.

These are areas that may well require more than six months to unravel. However, a start could be made by calling for information and evidence from the public on these matters.

To reduce the workload of the commission the Hawks and the National Prosecuting Authority, should, where sufficient evidence exists, bring perpetrators of corruption and state capture before the courts. There are some encouraging signs but more needs to be done by these bodies.

It would be acceptable for the commission to categorise and prioritise how the issues before it will be dealt with. With the additional information now in the public domain as a result of the #GuptaLeaks email dataset and evidence tendered before Parliament’s own inquiry into state capture, it must surely be realistic and possible for findings and recommendations in respect of some of these issues to be finalised within six months.

In this respect, it would have been useful had the Deputy Chief Justice set out the framework for the commission’s work, including the rules of the inquiry; when public hearings would be held and which topics they would cover; and how members of the public could make submissions and disclose evidence to him.

Civil society organisations have already done much work to uncover state capture and their participation in the commission must be encouraged. In addition Zondo should assure us that adequate funds have been made available to execute his mandate.

In his next media briefing, Zondo should provide greater clarity on these matters.

He highlighted the fact that the inquiry will help South Africans understand the depths of state capture. It must also identify those responsible for it and ensure that they are held accountable. The success of the commission will depend on the support of ordinary South Africans and that support will be determined by the levels of openness and participation.

- Naidoo is the executive secretary of the Council for the Advancement of the South African Constitution.

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