Ralph Mathekga

Commissions of inquiry stalling legal action against alleged criminals

2019-01-28 11:14
Commission into state capture. (Deaan Vivier, Gallo Images, Netwerk24, file)

Commission into state capture. (Deaan Vivier, Gallo Images, Netwerk24, file)

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Our commissions of inquiry are not there to investigate forward-thinking ideals about what we want in our society. They are there to do the job regular institutional mechanisms have failed to do, writes Ralph Mathekga.

Last week Monday as I was about to reach for my popcorn to enjoy another episode of Angelo Agrizzi's horrible testimony to the Zondo commission of inquiry into state capture when it dawned on me that the situation is actually more tragic than we seem to understand. 

Agrizzi reminds me of Tony Soprano, the character played by James Gandolfini in the award winning American mafioso drama The Sopranos. Who would want to miss explosive details about a criminal tender enterprise alleged to be run by the kingpin uncle Gavin Watson? 

READ: Mpumelelo Mkhabela - SA's dial-a-judge democracy

That morning, last week Monday, I was disappointed to learn that Agrizzi's testimony was scheduled to start late at 12:00 due to a security threat. I decided to flip through the TV channels and realised that there were two new inquiries that were about to debut on our screens the very same morning. 

One inquiry is about the fitness of Nomgcobo Jiba and Lawrence Mrwebi to hold office at the National Prosecuting Authority (NPA). The inquiry is led by retired Constitutional Court judge, Justice Yvonne Mokgoro. 

The other commission that debuted on our screens was the inquiry into what went on at Africa's largest fund manager, the Public Investment Corporation (PIC).  The PIC inquiry is led by Judge Lex Mpati. We will soon run out of judges and retired judges to head commissions!

The picture that crystallised that morning is that South Africa has three commissions underway on the same day; with two kicking off simultaneously. This cannot be normal at all; it signals a deeper crisis. 

We have so many commissions that we are becoming desensitised to the meaning of a commission of inquiry, or a standalone inquiry, for that matter. For some, the commissions are an indication that something is being done about our problems. Thus, commissions on their own show a nation at work, a solid attempt to deal with the deep-seated lapses in our society. President Cyril Ramaphosa even said that the commissions should be allowed to do their jobs before action can be taken against alleged wrongdoers.  

From this point of view, we should be happy we have commissions and we should thank those who allowed them to be in place. In other words, we must shut up and appreciate the mere fact that there is a commission in the first place. This condescending view fails to take into consideration the chief reason why commissions are instituted in South Africa. 

Commissions of inquiry are established simply because the normal processes of addressing challenges have failed to the extent that an inquiry must be set up in a way that it is protected from the regular institutional mechanism that exists within the state to deal with these challenges. 

For example, the reason why we have a state capture commission is not because we want to be educated about the network of corruption. We have the commission simply because the criminal justice system, the main function of which is to investigate and stop wrongdoing, has collapsed. In our case, our commissions are not there to investigate some forward-thinking ideals about what we want in our society. Our commissions are there to do the job that our regular institutional mechanisms of conflict resolution have failed to do. 

Therefore, our commissions are not nice-to-have expeditions about the future truth or something of that nature. Our commissions are an acknowledgement that our systems have failed. Our commissions are urgent in their nature and are an admission that we are in a crisis. 

When you are in a crisis, Mr President, you act in a way that shows that you appreciate the urgency. Hence, I decided to put away my popcorn last week Monday after realising we are in such a crisis that we have multiple commissions underway. It is because of this sense of crisis that there is no luxury to wait and allow for the commissions to finish their jobs before action is taken to remedy the situation. 

As the Zondo commission is underway, some measures can be taken against alleged perpetrators before the commission finalises its job. Taking action based on notes that would have emerged from the commission is not to violate due process in the sense that such action will be based on some form of due process even outside the commission. The truth is that, if we fail to act where the situation dictates, we then become accomplices to continuing wrongdoing. 

My understanding of South Africa's criminal law is that it does not require us to allow alleged perpetrators to fully complete their crime before they are brought to book. Neither does the law dictate that we should receive a complete explanation about the crime that is underway before we take measures to stop it. An indication that someone has committed crime is sufficient to bring action against the alleged perpetrator, particularly where the evidence is laid bare. 

The argument that we have to wait for commissions to wrap up before taking action against alleged perpetrators is simply being too indulgent.  

- Ralph Mathekga is a senior researcher at UWC's Centre for Humanities Research, and author of When Zuma Goes and Ramaphosa's Turn.

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Read more on:    cyril ramaphosa  |  state capture inquiry  |  corruption


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