Serjeant at the Bar

Zondo Commission is limited, Ramaphosa must come to the party

2018-08-31 08:01
The chairperson of the Commission of Inquiry in State Capture Deputy Chief Justice Raymond Zondo during a media briefing on May 24, 2018. Picture: Gallo

The chairperson of the Commission of Inquiry in State Capture Deputy Chief Justice Raymond Zondo during a media briefing on May 24, 2018. Picture: Gallo

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We are in the season of commissions of inquiry with both the State Capture Inquiry and the Nugent Commission of Inquiry into SARS now well under way.

The Nugent Commission is probably the easier undertaking in that it is required to focus on one state agency, SARS. Its work to date represents a textbook case of rendering into the public domain that which was known in part thanks to the media and more particularly the Jacques Pauw book, The President's Keepers.

But from the evidence before the Nugent Commission, South Africans are rapidly learning about the widespread destruction of a key institution over the past few years where, as with all manner of corrupt practices, the cost is borne by those who can least afford it.

It now appears that VAT had to be increased by 1% because of a consistent pattern of poor collection of taxes by the institution mandated to do the job. There can be little doubt that the report which will be produced by Judge Robert Nugent will bring much needed clarity as to how this sad decline of SARS was allowed to happen.

Perhaps because Deputy Chief Justice Raymond Zondo is tasked with a far wider and more complex inquiry, the early portents do not appear to be as positive. To date, some of the breathlessly poor reporting on the proceedings notwithstanding, most of the information disclosed has either been published or has for some time been available for analysis in the public domain. That is not the fault of the commission but it does serve to emphasise the limited role that a commission can play in so widespread an assault on a constitutional democracy.

Given that so much of the information that has and will emerge has been published before, the focus should rather be on a sustained level of criminal prosecution. In the same manner as Robert Mueller has gone about his investigation in the USA, a skilled and determined National Prosecuting Authority (NPA) could round on a host of characters who no doubt contributed to the theft of billions of public funds, all of which should have been used to change the lives of millions of disadvantaged South Africans and contributed to the meaningful transformation of the country.

But these rogues are middle men and, if threatened with years of imprisonment, they could in exchange for immunity from prosecution lead the NPA to the key perpetrators and their being brought to criminal book.

Even with the best will and the undoubted forensic skill of the deputy chief justice, a commission can only make recommendations with a view to criminal prosecution. And consider how long a commission tasked with so complex a set of terms of reference will take to formulate its recommendations.

Part of its problem will be the army of highly paid advocates briefed, inter alia by Mr Jacob Zuma, Ms Lynne Brown, the Guptas and Mr Fana Hlongwane, who may seek to cross examine witnesses. In itself that should be allowed because failure of their clients to testify will not only render nugatory an attempt to put a different version before the commission, but an adverse inference can be drawn if they fail to testify. I suspect we can confidently state that no Gupta will be travelling to testify!

But even within these strictures, the legal teams representing those who are the focus of evidence can employ the tried and tested Stalingrad tactics to slow the inquiry and unlike Judge Nugent who only had to deal with Mr Tom Moyane and his legal team, Justice Zondo is confronted with a good percentage of the Bar.

In summary, the solution to the pathology of state capture is for the president to appoint a top notch national director of public prosecutions (NDPP) and to allow him or her to get on with the job of prosecution without fear or favour. In the interim the Zondo Commission will continue to serve an important political purpose of continuing to hold a spotlight on those dark places where the destruction of constitutional democracy was conceived and the implementation of the theft of billions of taxpayers' money took place.

None of these cautions about the limitation of commissions of inquiry tasked with such widely couched terms of reference should come as a surprise. South African history is littered with commissions, the major achievement of which was to decommission widespread public outrage. Take the Truth and Reconciliation Commission (TRC) as an example. The single criminal trial of Eugene de Kock provided greater information of the barbarity of apartheid than did years of the TRC.

With help from government agencies and civil society, Justice Zondo's commission will serve as an important public focus on the disgrace of the past decade. But it is only if the NPA is properly capacitated that the criminal justice system will work to cleanse the country of the rapacious cliques that have plundered it.

That President Cyril Ramaphosa is taking so long to make the key appointment is of some concern. His, and hence the government's, commitment to bringing closure to the past decade will be reflected in who is appointed.

- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.

Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.

Read more on:    sars  |  raymond zondo  |  state capture inquiry  |  nugent commission  |  state capture
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