As the Zondo Commission starts winding down, we need a way to give its recommendations teeth

by | Mar 10, 2021 | General | 0 comments

Opinionista • Paul Hoffman • 7 March 2021

Among the measures needed to make sure the Zondo recommendations don’t gather dust, the dysfunction in the criminal justice administration needs to be addressed. Current structures have been hollowed out and partially captured. This will take years to address as many ‘saboteurs’ are hiding in plain sight within the ranks of the SAPS and NPA. They will have to be weeded out.

Now that Deputy Chief Justice Raymond Zondo has successfully secured a three-month extension of the life of the Commission of Inquiry into State Capture he has chaired so patiently and for so long, there is time and space available to complete the arduous work of taking evidence and to prepare the report he has been tasked with completing. Hopefully, there will also be funding.

It needs to be borne in mind that the findings of fact of any commission of inquiry of the kind the deputy chief Justice chairs are not of a binding nature, nor do they, in themselves, entail consequences for those fingered in the final report. In similar vein, the recommendations that any such commission makes do not have to be accepted by the president or the executive branch of government.

They may be noted, ignored, rejected or accepted. Even if accepted, that does not necessarily mean that they will be implemented. The recommendations of the Farlam Commission on the Marikana shootings calling for the demilitarisation of the police were accepted by the Zuma administration, but have yet to be implemented despite their acceptance.

The work of the RET faction of the ANC before, during and even after the Zuma administration ended has brought the country to within an ace of becoming a failed state. The very notion of radical economic transformation of SA’s mixed economy into an apparition of the National Democratic Revolution (NDR) is enough to scare off foreign investment, dry up local investment and send the country into the downward spiral to failure as a state.

The efforts to nationalise the Reserve Bank, the notion of expropriation without compensation and the hopelessly dear National Health Insurance scheme are all reminders that ANC policymaking leaves a lot to be desired.

Jacob Zuma, architect of a network of patronage extending from lowly ANC branches to the boardrooms of SOEs, Cabinet and the Gupta and Watson empires, sees nothing wrong with what he has wrought. His hollow apology to the nation for violating his oath of office to feather his nest at Nkandla is consistent with his defiance of a Constitutional Court order that he obey the summons of the State Capture Commission. This drama is still playing out in the court, the tea-drinking at Nkandla and in the serried ranks of MKMVA “troops”, those dancing and prancing in the streets outside the courts and Nkandla in defence of the RET fighting positions taken on issues arising at the State Capture Commission.

The evidence presented to the commission is overwhelmingly to the effect that there have been concerted attempts to repurpose the state to serve the greed of the Guptas, the Watsons, the RET leadership and many others. There have been steps taken in Parliament to facilitate these machinations: the dissolution of the Scorpions, an efficient and effective corruption-busting unit in the National Prosecuting Authority, ushered in an era of unsuitable appointments designed to protect the looters and to create a culture of corrupt activity with impunity. The laws regulating the Hawks were tailored to ensure that impunity prevails.

SOEs became the site of looting on a grand scale. Departments of state were subverted and the public procurement processes were bent to suit the will of the looters and the public, especially the poor, suffered and still suffer the consequences. Let the nation not forget that the swimming pool at Nkandla was morphed into a “fire pool” during the parliamentary process meant to hold those responsible to account.

What then is the deputy chief justice to do about fixing the mess created by those bent on the capture of the state?

Certainly, there will be recommendations that the criminal justice administration will take many years to process. Tracking down and trying the looters is a necessary exercise in retribution and to discourage those desirous of reviving the excesses of State Capture. The civil recovery of the loot is an urgent priority, given the bareness of the cupboard at Treasury.

What reforms are needed to ensure that there is not a repetition of State Capture?

The best-practice way of addressing this unfortunate culture is via the urgent establishment of a new Chapter Nine institution to investigate and prosecute grand corruption.

The conflicting value systems at play within the ANC-led alliance need to be addressed. Fealty to the Constitution, our supreme law, and to the tenets of the NDR cannot endlessly coexist. The NDR is inconsistent with the values of the Constitution. The pursuit of a revolution is bound to undermine the nascent democracy in SA.

Too many leaders in the alliance pledge allegiance to the Constitution but practice the NDR in their daily activities. Some are even in the national Cabinet. Scrapping the NDR is required. This step was urged on the ANC by the late Kader Asmal years ago. But, like a married man who keeps his childhood sweetheart as his mistress, the ANC pretends (and swears) to be true to its bride, the Constitution, while flirting and consorting with its first-love mistress, the NDR. This habit can only end in tears.

There are concrete recommendations available to the SCC that could bring about the demise of State Capture.

The idea of integrity testing for all senior appointments in the public administration and on the boards of the SOEs will go a long way toward weeding out the potential looters. Willie Hofmeyr introduced integrity testing with polygraph machines in the Special Investigating Unit years ago and it has served the unit well. Rogue SIU investigators and management are as rare as hen’s teeth.

The NDR-inspired practice of cadre deployment in the SOEs and the public administration must also end. Even the president seems to think so. A merit-based system of appointments as contemplated in section 195 of the Constitution is preferable to cadre deployment. It will end the conflicts of interest in which cadres find themselves when faced with choices between the NDR and constitutionally compliant activities. In addition, ending cadre deployment will render non-cadres eligible for public service, thus exponentially increasing the pool of available talent.

The dysfunction in the criminal justice administration needs to be addressed. The inability of current structures to deal with the corrupt is due to the hollowing out of the institutions and their own capture by elements true to the looters. This sad state of affairs will take years to address as many “saboteurs” are hiding in plain sight within the ranks of the SAPS and NPA. They will have to be weeded out over time; a painstaking process that will take longer than the period available to address the consequences of the culture of impunity for corruption that grew in the Zuma years and still flourishes in his mind. So much so that he feels free to defy the orders of the highest court in the land.

The best-practice way of addressing this unfortunate culture is via the urgent establishment of a new Chapter Nine institution to investigate and prosecute grand corruption. The criteria according to which it needs to be structured and to operate have already been set in the Glenister litigation. Turbo-charged Scorpions (or Eagles who fly higher, see further and go after bigger prey than Hawks) are needed. Clothed with secure tenure of office, led by integrity-tested specialists with properly trained staff, fully resourced in guaranteed fashion and able to act without fear, favour or prejudice; they are needed right now as covidpreneurism flourishes.

The NEC of the ANC agrees with the previous paragraph, if it seriously meant its resolution announced on 4 August 2020.

The steps announced during the State of the Nation Address 2021 suggest that the Cabinet has yet to get to grips with the requirement of secure tenure of office, but in other respects appreciates the need for independence in the anti-corruption entity it has in mind, an entity which will report to Parliament. The spectre of executive influence, interference and even control of the entity needs to be dealt with in the manner prescribed in binding terms by the Constitutional Court.

If the Zondo Commission recommends:

  • An end to cadre deployment in the public administration and SOEs;
  • A start to integrity testing as done in the SIU; and
  • A new Chapter Nine institution to investigate and prosecute grand corruption;

then there is every prospect that State Capture will be history rather than an ever-present threat to our nascent democratic project; an aberration which, in the words of the court, “threatens to fell at the knees all we hold dear”. DM

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