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The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State, otherwise known as the Zondo commission, is expected to move into third gear this year. As with the Truth and Reconciliation Commission, South Africans hope for full disclosure and an understanding of the magnitude of governance malfeasance over the past few years.
Although the commission is a necessary tool to uncover the truth, the real outcome might not match the expectations that have been created by this overarching inquiry. As such, it has a real possibility of not delivering what it promises. The problems lie with the design, scope and possible recommendations that might emanate from the hearings.
The commission was established to inquire into, make findings on, report on and make recommendations guided by former Public Protector Thuli Madonsela’s State of Capture report, relevant legislation, policies and guidelines, as well as the order of the Pretoria High Court on December 14 2017 under case number 91139/2016.
Although the terms of reference hold the possibility of giving South Africans a full view of state capture, the design of the commission and consequent proceedings have the potential to render it a navel-gazing exercise.
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First, although one sympathises with Deputy Chief Justice Raymond Zondo’s assertion that he needs more time to do justice to the terms of reference, South Africans expect immediate action as a result of the testimony at the inquiry. The view that law enforcement agencies do not have to wait for the commission to conclude its business before instituting criminal and civil proceedings is somewhat misplaced because any investigation will benefit from fully ventilated and tested evidence at the inquiry.
So we are likely to experience a real “prosecutorial stalemate” in the next 18 months. Law enforcement agencies will tell us they are unlikely to conclude investigations and initiate prosecutions because some of the evidence is still being presented at the inquiry.
Second, the commission missed a real opportunity to zoom into the State of Capture report and complete the task that Madonsela set out to achieve.
Why is it, in the design of the inquiry, that we cannot divide the hearings into two distinct phases? Phase one could have covered Madonsela’s report; phase two would cover the wide range of testimonies and evidence presented at the inquiry.
The risk is that we have a wide-ranging open-ended inquiry that is neither thematic nor categorised in any logical manner.
The commission needs to sharpen its focus and give South Africans confidence that the outcome will lead to public accountability and respect for the rule of law. This must happen sooner rather than later.
Third, the sequencing of the witnesses is a real concern. On what basis are witnesses “invited” to present evidence. Although the evidence is important, how does it link in a direct and systematic way to state capture? Why have we not yet heard the testimonies of Malusi Gigaba, Des van Rooyen, Brian Molefe, Dudu Myeni and others? These are the real alleged actors in the state capture project.
Yes, it is refreshing to hear the testimony of former mineral resources minister Ngoako Ramatlhodi.
South Africans want to hear directly from the people involved why the Transnet locomotives contract was inflated in the procurement process.
Fourth, in as much as the ANC denies it, the inquiry is about the mismanagement of the country by the party over the past decade, so the inquiry is unlikely to escape the possibility of assuming a political dimension. In an election year, it runs the risk of being appropriated for political gain.
The ANC will not be able to run a successful election campaign in the middle of a state capture inquiry. Imagine former ministers Fikile Mbalula and Malusi Gigaba testifying at the commission today and conducting an election door-to-door campaign tomorrow. What will this do to the ANC’s brand?
A way to ensure that the campaign is not derailed is to suspend the hearings for a few months before the elections. However, should this happen, the credibility of the inquiry will be severely undermined. It would give credence to the view that it is not insulated from political interference.
Finally, the commission needs to reassure South Africans that it is not a money-making machine for lawyers. As with all institutions established by government, it needs to account for the resources at its disposal. The first step in the process would be to publish a mid-term performance report, including the earnings of senior officials of the commission. South Africans deserve to know the real cost of democracy.
Mogano is an independent management consultant and Ngobeni is a book publisher
