Many South Africans have already drawn their conclusions regarding the judicial Commission of Inquiry into Allegations of State Capture, corruption and fraud in the Public Sector, including Organs of State. The inquiry was meant to be broad in scope. This, however, was not to be.
It didn’t take long before it was reduced to a poorly orchestrated public flagellation of the former president, Jacob Zuma, and those considered to be his associates. The inquiry was exploited to the full by those who used it as an opportunity to settle their personal and political scores.
Just a few months into the inquiry, one of the star witnesses, Mcebisi Jonas, cautioned about the risk of the commission being misdirected.
Jonas warned: “The danger, I would still argue, with the process of state capture – can I use the term to ‘over-Zumanise’ it? To think that it was about Zuma, that would be the biggest mistake. It is bigger. It is structural. It is systemic. You will miss the point if you do that.”
Sadly, this advice fell on deaf ears. For reasons best known to him, the chair of the commission threw caution to the wind. He allowed his obsessive dislike of the former president Zuma to get the better of him.
As the commission draws to a close, many of those implicated have promised to take it on review. The chair of the commission faces the prospect of being totally discredited. Four years later, and almost R1billion of expenditure spent or wasted, questions arise on whether it was worth it.
In its wake are more than 300 civilians who died during the greatest social unrest the country has experienced since 1994. The Zondo Commission will always leave a bitter taste to the affected families. What started as a quarrel around matters of fact between Zuma and the chair of the commission was mischievously elevated into a constitutional matter.
Whichever way one seeks to describe the July 2021 social unrest, looting spree, thuggery or insurrection, there is no doubt that it flowed from the actions and decisions related to the commission. Any writing and/or assessment of the commission will be incomplete without mentioning the lives that were lost.
The incarceration of Zuma without trial by the Constitutional Court is reminiscent of the dark days of apartheid. Its unfairness notwithstanding, Zuma was at least subjected to a trial under the apartheid system.
We can find consolation, and not comfort, from the fact that at least two judges of the Constitutional Court disagreed with the majority judgment.
They went as far as to suggest that the majority judgment was driven by frustration. The two judges went further to accuse their colleagues of acting in a manner that is not only unlawful but also unconstitutional. The chair of the commission’s ill-advised commentary on the outcomes of political contestation in the ANC exposed his lack of discernment.
In doing so, he single-handedly undermined the work of the commission. The leader of the EFF, Julius Malema, could not have been more precise in his description.
“The Chief Justice is too forward and has got no limits, and he thinks that judges are untouchable. That’s why he has given himself a responsibility to enter even a political terrain. What do judges have to do or say regarding the outcomes of political conferences? Zondo is a factionalist that supports Ramaphosa’s second term. That’s why it is so necessary for him to put that Ramaphosa’s election in the ANC rescued us from where we were because he’s effectively saying if you don’t elect Ramaphosa this December, we going to be in trouble.”
Different parties have since promised to lay charges of misconduct against Justice Zondo at the Judicial Service Commission. He has since been appointed as the country’s Chief Justice. This is seen as a reward for misdirecting himself in the commission. The commission’s report calls for further investigations.
Even here, the recommendations are not seen as consistent. Questions have been raised as to why he had asked President Cyril Ramaphosa to review the position of Zizi Kodwa in government, but has not done the same with regard to Minister Gwede Mantashe. This is despite having made almost similar adverse findings regarding both.
It is only in a few instances that the commission has asked for specific individuals to be charged. The manner in which the commission was conducted opens it up to being subjected to judicial review. Implicated individuals have since promised to do exactly that.
As we have seen with Pravin Gordhan, who proved to be a disgrace, most of the testimonies are likely to collapse under serious cross examination.
It does the commission no favour that some of the submissions, such as those of Brian Molefe and Matshela Koko, were arguably swept under the carpet to ensure that Ramaphosa comes out as a knight in shining armour.
Molefe has specifically argued that it was under Ramaphosa, as chair of Glencore, that “Eskom management and Glencore were in the process of subverting section 38(1)(c)(i) of the PFMA. The amount that Glencore wanted Eskom to pay for their original mistake of not doing due diligence was R8bn.”
As fate would have it, Ramaphosalinked mining company Glencore has since pleaded guilty to multiple charges of market manipulation, bribery and corruption in New York. This development gives credence to the accusation that the commission has deliberately ignored submissions that do not conform to a dominant narrative of State Capture.
In narrowing its focus on a few individuals, the commission has done the country a disfavour in not looking at the corruption that has been taking place for the past 40 years. In his statement to the commission, Molefe argued that “it is a pity that this Commission on State Capture missed an opportunity to investigate the nature of the cost plus mines and 40-year contracts.
This, I find to be strange, given the fact that Tegeta supplied less than 4% of Eskom coal, while in 2015, four other companies supplied more than 80% of Eskom coal to the value in excess of R40bn per annum (with 40-year contracts).”
The commission ended, focusing on misdeeds by black people. In doing so, it has enabled white companies to escape scrutiny. As we move into the future, Zondo is likely to spend his two years as Chief Justice in the courts defending his reports and also having to fend off charges of misconduct.
In the bigger scheme of things, the commission has been useful in distracting us from some of the most pressing issues of our time – deepening poverty, unemployment and inequality ranking as highest in the world, lack of economic transformation and landlessness.
Eskom, the entity mandated to provide reliable energy, is on its knees. Load shedding is the new norm. Ramaphosa has since shifted gear. He no longer promises that it will be resolved. He can only promise that we will be told when to expect it.
In the meantime, state-owned enterprises, necessary for building the socioeconomic infrastructure, are being auctioned to the private sector. Focusing on arresting individuals will certainly make some of us feel better, but it will never resolve our historic challenges.
The commission may have been captivating. But in the bigger scheme of things, it was a mere sideshow.
* Seepe is the Deputy Vice-Chancellor of Institutional Support at the University of Zululand