Zondo must now lead to real change

He was horrified about what he learned of the ANC and government — and we should be too

Zondo has landed. Finally. And it skewers not one, but two presidents. With a resounding thump, all 5 400-odd pages of it, an encyclopaedia of systemic corruption and its underlying causes and dramatis personae.

History has been made and recorded — and with a big sigh of relief, not least from Chief Justice Raymond Zondo himself, who, for four years, has carried a difficult mission upon his broad, but human, shoulders.

But has it really landed? On the desk of President Cyril Ramaphosa certainly, with myriad attendant and consequent responsibilities and expectations. But with the nation? Will it enter society’s consciousness?

It is not merely about communications and meaning and accessibility. It is also about accountability for those implicated in the report, and for those, like the president, who now bear the responsibility to act upon its findings and recommendations.

People are asking whether Zondo matters and whether it will lead to real change. These are the right questions. Although much of the reaction in response to the publication of the final instalments of the Zondo report on state capture last week has been to focus on who has been implicated and the issue of their likely criminal prosecution, the more important issue concerns the underlying causes of state capture and the weaknesses in the system that allowed it to happen.

The answer is a political one, not a legal one. Never again should be the rallying cry.

Arresting a steep and rapid ascent into the dark hellscape of state capture requires political activism as well as legal and institutional measures and reform. South Africa has a long history of moving on from grave events just a little too easily. Political activism and pressure will be essential to ensure that Zondo leads to real change. This is why it needs to land with society. It needs to be relevant and important to people across all social groups so that the systemic reform that a proper response to Zondo requires is not side-stepped or shunned by those with the power to take the necessary action.

One of the main weaknesses with the report, therefore, is the lack of a narrative thread. Stories always matter, especially with complex matters. Few people will read the main body of the reports so a really good executive summary was essential. It was promised; curiously, it was to be the final report. But Report VI, Volume IV is a disappointment. It is a summary of the main findings and recommendations. It is a useful checklist and, thereby, an accountability tool for those who intend to hold the feet of those in power to the fire — to make sure that they attend to all of the findings and recommendations.

But even the summary report is largely unreadable. And, more problematically, acontextual.

In the first paragraphs, for example, one is thrown right into the heart of Dudu Myeni’s Zuma-enabled and wholesale theft of SAA. But there is no storyline. It is impossible to tell what happened and why.

This is a missed opportunity. Let me illustrate what I think is missing. When Argentina’s equivalent of the Truth and Reconciliation Commission completed its work in the early 1990s, it invested in a popular version of its report, titled Nunca Mas (Never Again). Years later it is still a bestseller. It really did land.

It may not be too late for Zondo. A little coalition of interested individuals and organisations need to get together to fund and commission an unofficial, popular version of Zondo — published in all South African languages, widely distributed, and with podcasts and other social media dissemination. It could be game-changing.

What else will make a difference and determine whether Zondo leads to change? The spotlight in the short term will be on the National Prosecuting Authority (NPA). This is inevitable and appropriate. Remedial justice and reform also requires personal accountability.

Many of those implicated will try to muddy the water with spurious and, occasionally, slightly more serious legal challenges to the state capture report and its findings. What much of the media reporting has not made clear is that none of these challenges will make any difference to the question of whether the NPA proceeds with investigations or prosecutions.

Why? Because the NPA is free to investigate or prosecute wherever it sees fit. Regardless of the findings and recommendations of Zondo, it must conduct its own investigation in every case to satisfy itself that there is sufficient evidence and a reasonable prospect of a successful prosecution.

It cannot rely, per se, on evidence adduced in front of the state capture commission; that evidence should, in many cases, help the NPA along the way. It cannot be relied on in the prosecution itself but it signals the way forward.

This is why Zondo generally recommended that further investigation be conducted. He was signalling his view that X or Y may well have committed a crime. But, ultimately, the NPA must make its own mind up.

Some of these cases will yield quick results. Others may fail or take years. Some of the big fish will be caught — which why some of them have been flapping so desperately in recently times and, in some cases, playing their biggest and probably final cards — most obviously Arthur Fraser with his #farmgate revelation.

Beyond the criminal accountability front there are the systemic reforms that must be addressed. How and why did the system fail? Where and what were its weakest links?

These will attract less spectacle and commotion but will matter more in terms of long-term institutional remedial action — from electoral reform to parliamentary oversight to anti-corruption agency design to public appointments and cadre deployment to dodgy donations to powerful politicians to public procurement procedure.

All of these recommendations will have to be carefully considered. In some cases, Zondo rather strayed out of his lane. Although he no doubt learnt a lot about the murky side of politics over the past four years, some of his recommendations demonstrate a shallow understanding of politics. His bald recommendation that South Africa should switch to a presidential system (that is, with a directly elected president) is at best clumsy and illthought-through and, at worst, naive and misguided.

Nonetheless, his approach is understandable. He was genuinely horrified by what he learnt about the toxic relationship between the ANC and the body politic. One does not even have to read between the lines to see that he wants to insulate the public service and, thereby, the public from the contaminating influence of the ruling party.

It was this shock and anger that drove Zondo towards taking a maximalist view of his brief. In this, and in the depth and decisiveness of his findings, Zondo exceeded all expectations. We should not complain about his sense of public service and his willingness to shoulder such a deep responsibility.

Jacob Zuma certainly underestimated Zondo — his second serious misjudgment when appointing a judge to high office. As with Mogoeng Mogoeng, Zuma calculated that the appointee would be either meek or malleable. That is one of the reasons Zuma did not complain too much at the time about Zondo’s appointment. He thought Zondo would be slow and ineffectual, and therefore would not threaten his interests.

He was wrong. Zuma is properly nailed by Zondo. But so, too, in a different way, is Ramaphosa, who is not implicated in terms of specific culpability, but is found, in effect, to be at least partially politically responsible.

Ramaphosa came to the commission and said two things: one, I didn’t know what was happening; second, I stayed in office to prevent worse things from happening. Ramaphosa can’t have it both ways. Zondo has called him out on this contradiction.

Time and again, Zondo finds that Ramaphosa could have stepped in, but either turned a blind eye or dithered — in one case, Arthur Fraser, opting to wait and see how the commission would handle it.

This approach, Zondo finds, was an abrogation of political responsibility. The onus is now on Ramaphosa to redeem himself. He has four months to report to parliament on how he will respond. Knowing him, he will come back and say that he is considering the issue or has appointed a task team or some other committee.

That will not be enough. In addition to the thanks of a nation, Zondo deserves to be treated very differently by the government. If Ramaphosa’s response is weak then he must be condemned; he will not deserve a second term. The president must understand that it is his leadership that is in the spotlight now. As Ramaphosa himself said, Zondo is a defining moment — for the president and South Africa’s democracy.

Beyond the criminal accountability front there are the systemic reforms that must be addressed. How and why did the system fail?

Richard Calland is an associate professor in public law at the University of Cape Town.

The views expressed are those of the author and do not necessarily reflect the official policy or position of the