Keeping probe on point and on time may be more difficult than expected

Legal formalities may also hinder investigative purpose of inquiry’s massive, broad-ranging terms of reference

If the meandering and at times tortuous testimony of former MP Vytjie Mentor is to be the yardstick of the Zondo Commission we are going to be in for a lengthy and frustrating process. The essence of her evidence was about Ajay Gupta (or it could have been Atul) offering her a cabinet appointment as public enterprises minister in exchange for her influencing key decisions at SAA to benefit the Guptas’ business interests, and whether former president Jacob Zuma was aware of and colluded in that offer.

Yet we were treated to a labyrinthine account of obscure details about staircases, bathroom mirrors and dates of Facebook posts.

It is therefore no wonder that Deputy Chief Justice Raymond Zondo, who is heading the Commission of Inquiry into State Capture, Corruption & Fraud in the Public Sector (the Zondo Commission) has sought from the High Court a two-year extension to the timeframe for the commission to conclude its work and report to President Cyril Ramaphosa (assuming he is still in office then). That’s on top of the six-month period stipulated in the terms of reference.

There is a growing sense that the work of the commission is haphazard, with no cohesion between the legal team and the chairperson or between the legal team and the investigating team. Zondo often gives the impression that he is hearing much of the evidence for the first time, yet affidavits have been filed and there is a trail of documentation in the public domain.

There is a blanket of legal formality over these proceedings, masking its true purpose as an investigative or inquisitorial process where the search for the truth is paramount rather than adherence to strict legal prescripts.

It is indisputable that the commission has a mammoth task ahead of it, with nine discrete terms of reference to be covered, seven of which emanate from the public protector’s State of Capture Report in 2016. They range from narrow issues such as whether Mcebisi Jonas and Vytjie Mentor were offered cabinet positions by the Gupta family, to the nature and extent of corruption in the awarding of tenders by stateowned enterprises and government departments.

It is therefore fair and legitimate to ask whether the mandate of the commission could indeed be executed in six months. That raises the question of whether Zondo has engaged with the former public protector, Thuli Madonsela, to gain a better understanding of her report and specifically why she believed the commission (which she proposed) could complete its work in 180 days. It is worth recollecting that Madonsela had asked Treasury for an additional R3m to conduct her investigation into state capture, while the bill for the Zondo Commission reportedly stands at about R250m! Her expectations regarding R3m and 180 days may well have been wildly optimistic, but no harm could have been done in eliciting her views.

In an affidavit before the High Court challenging the extension, the Council for the Advancement of the SA Constitution (Casac) argues that Zondo has not explained “how the 24 months will be utilised by the commission of inquiry in future to complete its work”. We have challenged Zondo to explain why a 12-month extension would not suffice. No clear work plan has been tabled by the commission outlining how it will deliver on its mandate.

The real possibility exists that a further extension may be requested in future, negating the evident urgency in dealing with allegations of state capture and the imperative of rebuilding public trust in institutions of state, especially those in the criminal justice sphere. Zondo does not begin his work from scratch – there is the State of Capture report, the evidence produced before various parliamentary inquiries into Eskom, Transnet and the SABC, academic studies, and hundreds of gigabytes in the #Guptaleaks emails and extensive media reporting on these allegations.

Casac’s challenge to the 24-month extension provides Zondo with the opportunity to explain how this trove of information has been assessed, analysed and categorised in respect of the terms of reference, what gaps in information they reveal, and how they intend acquiring that additional information. The question to Themba Maseko last week to provide names of public servants who could assist the commission reveals the failure of the commission’s team in this regard. They are the ones who should be providing Zondo with that answer. Yet the commission has merely called for the public to come forward with information without directing us to the issues that need to be addressed. While openness, transparency and fairness should be the hallmark of a public commission, they should promote rather than hinder its work.

Zondo has yet to rule on how crossexamination of witnesses is to be conducted – the rules of the inquiry make it clear that crossexamination is a privilege and not a right. He must use this power to ensure that those implicated do not abuse the time of the commission.

He has allowed the commission to be sidetracked by entertaining a “request” from lawyer Comfort Ngidi to join the investigating team. Although this request has been withdrawn, Ngidi, a well known Zuma sympathiser who led the charge against Madonsela’s Nkandla report, is the attorney representing the commission in seeking the extension of its timeframe. With Zuma centrally implicated in state capture, the commission should maintain a safe distance from anyone associated with him. Zondo cannot afford the integrity of the commission, and public confidence in it, to be undermined so easily.

In contrast, the Nugent Commission into the SA Revenue Service (Sars), albeit with a much narrower mandate, is speeding ahead despite the procedural roadblocks Tom Moyane and Jonas Makwakwa have sought to place in its way, and their use of Stalingrad tactics. The information contained in existing reports on Sars have evidently been evaluated, and informed the focused questioning witnesses have faced, and there is a clear plan to meet its reporting timeframe of November 2018.

While the media and public are feasting on the spectacle of the public hearings and the juicy nuggets of anecdotes that are aired, we must not allow that to distract us from also holding Zondo and his team to account. As we state in our affidavit: “The commission is unique to any other commission before it, as it concerns the hollowing out of state resources by private actors acting in concert with public officials, for their own benefit, at the expense of the state. State capture was and remains an issue of national importance that requires urgent and immediate redress.”