Joining state capture legal dots is arduous task
One of the scariest parts of the Oscar Pistorius murder trial was the cross-examination of neighbours who had heard Reeva Steenkamp scream.
Pistorius’s advocate Barry Roux did his best to discredit the state witnesses who testified that they heard a woman’s “terrible screams”.
Roux questioned the witnesses on the screams they claimed they heard, whether they could be sure they came from a woman or a man, and how they could tell that the person screaming was frightened.
He argued that the evidence of Dr Johan Stipp could not be relied on because he said in the witness box that the screams were fearful and emotional but his initial statement to police did not mention this. The defence strategy was enough to make you think twice about doing your civic duty and reporting such things to the police.
Having to testify under oath and being subjected to crossexamination must be one of the most nerve-wracking things a person can endure.
The inquiry into state capture has had riveting days of testimony as former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor gave details of their interactions with the Guptas, and Ajay Gupta’s alleged offer to make them ministers.
While Jonas’s evidence was concise, Mentor’s was a meandering journey from China to Saxonwold – via Hong Kong, Cape Town and OR Tambo International Airport.
Judge Raymond Zondo was provided with unnecessary descriptions of the luggage of one of the Zuma wives in Hong Kong, the ornate décor of a bathroom in the Guptas’ Saxonwold compound and which curry Mentor prefers.
Mentor is an animated character with a colourful social media presence. She clearly struggled to limit her testimony to pertinent details and acclimatise to the legal context. She made curious claims and will probably have difficulty making aspects of her story stand up if she is subjected to cross-examination.
But there are important factors about the inquiry to consider. Constitutional law expert Pierre de Vos says the commission is an inquisitorial process not a court of law, so the same rules do not apply. He says the witnesses are not expected to prove or disprove anything but their versions need to be corroborated.
Something like the exact identity of which Gupta brother Jonas and Mentor spoke to might not need to be established as in a court but the witnesses need to be shown to be credible, said De Vos.
But the commission cannot also be a big gossip session. Witnesses are called to assist the commission find out what happened, not to prove anyone’s guilt. This is the reason those implicated in evidence do not enjoy the automatic right to cross-examine witnesses and have to apply to do so.
The commission’s legal team wants Zondo to set conditions on those wanting the “privilege” to cross-examine to ensure that implicated parties make themselves available to testify.
At the end of the process, the commission must answer the questions set out in the terms of reference, including whether the phenomenon of state capture did exist. It is probably quite difficult to prove a phenomenon legally. In this case, much of what happened was perpetrated through the operation of a shadow state.
While the media, civil society and academics have done a lot to “join the dots”, doing so through a legal process is a lot more arduous. With the commission expected to run for up to two years, it is impossible to draw conclusions yet.
Mentor’s encounter with the Guptas allegedly took place in 2010 and she only spoke out about it after Jonas came forward in 2016. She has no records to prove what happened and is clearly fuzzy about some of the details.
Jonas spoke out five months after he allegedly met Ajay Gupta and his version was recorded by his lawyers when it was fresh in his mind.
It will be fascinating to see whether former president Jacob Zuma, his son Duduzane and the Gupta family come to the commission to testify and how they corroborate their versions.
What this inquiry should not do is discourage people from testifying. Those who witnessed the systematic plunder and kept silent up to now should feel assured that they will not be lambs to the slaughter if they step forward.
With all the high-powered legal teams represented at the commission and the process playing out live on television, testifying could be unnerving. But the commission should not instil a sense of foreboding among potential witnesses, as the Pistorius trial did.
Ultimately, everyone should be driven by a common purpose to expose the rot and restore the integrity of the state.
THE STATE CAPTURE COMMISSION IS AN INQUISITORIAL PROCESS NOT A COURT OF LAW THE WITNESSES ARE NOT EXPECTED TO PROVE OR DISPROVE ANYTHING