State Capture Commission day one: Judge Zondo begs for public participation

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Is Justice Zondo unwittingly conflating what is in public space with the general public having evidence for state capture?

August 20, 2018 was a historic day in a South Africa’s history of the liberation struggle. Significantly so, for 35 years ago on this day the United Democratic Front (UDF) was launched.

In this season it is also the date for the start of the commission established to ascertain if state capture occurred as is generously claimed.  Day one marked as to be expected a low-key event. It was a day in which the commission was sorting out technicalities, processes, a means of documenting the various pieces of evidence in filing for referencing and basic systems of how the commission will function. We heard from the legal representations of among others former President Jacob Zuma, led by Senior Counsel Muzi Sikhakhane who informed the commission that they had received communication from three sources.

The first was on August 3, and the last on Friday 18th, literally 48 hours before the commission’s first sitting. He, therefore, asked that time is afforded for them to engage, and confirmed they have no intention to delay the work of the commission. We also learnt that the commission has access to 120 boxes of information that we must surmise constitute the evidence for state capture.

However, what struck me was to hear the Deputy Chief Justice and chair of the commission Raymond Zondo for a second time in less than 14 days lamenting his disappointment with the utter lack of public participation hitherto, to avail themselves with information to realise the work of the commission. Justice Zondo didn’t mince his words in showing his displeasure at the realisation that the public is not really turned on or attuned to participate. Justice Zondo when he first lamented this state of public non-participation informed us that hitherto eight witnesses to prove state capture had come forward.

It is right here we must register our first challenge with the now sitting commission. Is it the task, mandate and brief of Justice Zondo to pursue the lamenting and inevitable asking for people to come forward with the evidence? Is it his task to solicit in begging for information, or to preside over information submitted and before the commission as attained thus far? If Justice Zondo has to beg the public for their participation shall we surmise that in his legal mind he communicates grave concerns with a process led by his commission that will have to run for almost 18 months on the evidence of eight people bereft of true public participation? Does this not inadvertently cast long shadows of legitimacy over the entire process?

His exact words were: “The response has been quite disappointing. I would like to take this opportunity once again to ask the public to come forward with any information. If this commission is to do its job properly we need evidence.”

How then can Justice Zondo assume the general public knows of state capture? What is the scientific evidence for this assumption on the honourable Justice’s part? Is Justice Zondo seeking to placate us, badger us when we did not invent the construct but a sophisticated group of individuals? Is Justice Zondo expressing veiled fears that the commission may end up in a farce because after a public campaign of state capture as a brow-beaten venture we may just have to listen to eight people that share their accounts, mostly personal, that may, in the end, be refuted?  Is Justice Zondo unwittingly conflating what is in the public space with the general public? Can we remind Justice Zondo when the ANC launched its investigation it concluded that only six people came forward and only three were willing to make a written submission?

Our second challenge remains the expressed fear that the commission may not unearth anything more than what was already entertained in a combination of both parliamentary and NPA processes as led by the media revelations of email leaks. Some of us advocated this constitutes nothing but duplication if the commission was going to sit on the same entertained information. It appears the current evidence before the commission amounts to a cross-section of hearsay and compiled reports by those who already concluded before the advent of their research state capture exists. Hearsay as in the case of key primary witnesses namely Mr Mcebisi Jonas allegedly made an offer of R600m, Ms Vytjie Mentor made a promise of a job, Mr James Maseko who was apparently instructed by former President Zuma to engage the Guptas.  All of the aforementioned in a space of cross-examination may prove refutable.

The hearsay coupled with a host of reports, from among others the Public Protector Advocate Thuli Madonsela’s October 2016 The State of Capture Report. Also, a report entitled “Unburdening” commissioned by the South African Council of Churches (SACC).  In addition, we know of a report compiled by a segment of Academics and lastly a report commissioned by businessman Mr Tokyo Sexwale specifically targeted to look at aspects of his own business interest in the Eskom-Trillian debacle.  In the case of Sexwale’s commissioned report, we learnt that the SC Geoff Budlender could not conclude the report and was categorically clear that further investigations were needed.

In the third instance, what is currently before the commission to define a state capture enquiry remains extrapolated and in utter reliance on media clippings, news reports and books written by certain authors such as Mr Jacques Pauw author of The President Keepers. Let us not forget the Democratic Alliance leader Honourable Mmusi Maimane went to Parliament with this book as his evidence for state capture and made demands on the strength of this book. Let us also not forget this book penned by Jacques Pauw soon had many who claimed or were associated with the book in its actual writing. We saw Minister Pravin Gordhan signing the book with lines of people interested to have his autograph. We heard Mr Ronnie Kasrils being linked with the book and a litany of other politicians who easily can be identified in their own factional kaftans of ANC capital-inspired divided interests. A further cardinal point to note of all the compiled reports before the commission is a rightful claim that none of those tasked with compiling the reports presided over the full gambit of prosecutorial infrastructure to establish a legal case. They remain reports and will only be tested in veracity, authenticity and validity in this commission.

In the fourth place, a key feature of the subject of state capture centres around personalities. Among those is none other than Pravin Gordhan who singularly stands out as the proverbial hunter and gatherer of evidence on state capture. However, his  April 27, statement as interviewed by Christiane Amanpour, of CNN, in which he categorically and unambiguously states he has no information that implicates former President Zuma on either corruption or state capture, except for allegations from some that must be tested in a commission. We also learnt he will not make a presentation as one of the acknowledged eight people that Zondo confirmed have made presentations to appear. The factuality of the latter must still be confirmed.

In the event of this being true, it would prove more than strange since, Gordhan is the ‘nexus’ if we hear him in his pronouncements on state capture as led before the Parliamentary initiated process, public commentary and more so now in his new assignment as Public Enterprises minister. A great part of Gordhan’s public persona in his second coming as Finance Minister and his subsequent second firing, in March 2017, is framed around the crafted messianic role he presents of being a corruption and state capture buster. Gordhan easily accepts credit for his role in uncovering state capture in his current position as a Minister of Public Enterprises.

We must also conclude when President Cyril Ramaphosa in his address to the news editors thanked them for their uncovering of state capture and how he and others had no knowledge of the extent of this. We must surmise he is fed by Gordhan as to the prevalence of state capture, in particular on the SOE’s.

Which brings us to our fifth challenge with this enquiry, the aggregate case load and value for a claim of state capture has naturally shifted to a singular ministry, namely Public Enterprises where most of SA’s State-Owned Enterprises (key among these, Eskom, Transnet and Denel, etc) are located. The challenge with this is that it may just inadvertently confirm that state capture never occurred in any of the three recognised spheres, in a totality of claim so easily bandied around that defines a constitutional democratic state, i.e. the legislative arm, the judiciary or the executive. It appears more and more that corruption may have been prevalent in a specific ministry where most of the SOEs were located. I say “may” because we have yet to hear the corroborating evidence for these allegations. The parliamentary process presented us with less irrefutable evidence since some were not given an opportunity to present, but were summoned as accused and were able to argue their counter-claims.

Lastly, what then are the implications for the Public Protector’s report if the public at large has no evidence of state capture and the totality of the claim is ushered on that of a few who are yet to prove their claims to be true before the commission? Will we, in the end, have to accept that Madonsela was deceived or that she may have deceived SA with her hashed report?

While it is hopelessly too early to make any hard and fast assessment on a final outcome for this commission, we may venture to say a chairperson begging for public participation does not inspire any confidence that state capture may be proven. A chairperson conflating what is in the public space with knowledge in evidence within the general public could be precarious an assumption. On another score, can the chairperson accept that what was entertained in print and broadcast media may not have been anything more than a campaign as some of us ages ago argued when we categorically labelled state capture a hokum argument.

Can the chairperson and his team afford space to engage the etymology and linguistic definition of a construct of ‘state capture’, as a World Bank derivative and in South Africa the end product of a DA-led campaign of three C’s (cadre deployment, corruption and capture) crafted as far back as 2009 to unseat the ANC in proving its president as corrupt? A campaign that even swayed the public protector to adopt the claim of state capture, thus christening it into our public lexicon.

We will watch and follow the unfolding of the events of the commission with bated breath. For now, this was just day one, the first of an anticipated 570 days before a report will be tabled unless the commission comes abruptly to a screeching halt when its eight witnesses are exhausted and the public continues to show no interest in being made responsible to produce evidence for what it never claimed.

It may just be that state capture seems easier talked about as campaign than confirmed in evidence.

Clyde Ramalaine

Political Commentator and Writer