Sunday Times

MZANSI’S SAVIOUR

Now Madon­sela is gra­ciously wait­ing for Zondo

- By CHRIS BAR­RON South Africa Politics · South Africa News · Crime · Feminism · African Politics · Politics · Social Movements · Society · Thuli Madonsela · Stellenbosch University · Jacob Zuma · State Security Agency · African National Congress · Gupta family · God · Dubai · Cyril Ramaphosa · Pravin Gordhan

Thuli Madon­sela, whose State of Cap­ture re­port in 2016 led to the Zondo com­mis­sion, wanted the in­quiry into state cap­ture to be done and dusted, with its find­ings and rec­om­men­da­tions wrapped up, in 180 days, she says.

Deputy chief jus­tice Ray­mond Zondo ap­plied to the high court for a two-year ex­ten­sion over and above this, so ei­ther he wasn’t seized with the same sense of ur­gency, or the for­mer pub­lic pro­tec­tor and now law pro­fes­sor at Stel­len­bosch Univer­sity was be­ing wildly op­ti­mistic.

Why did she think six months would be enough?

“Be­cause I’ve been an in­ves­ti­ga­tor for about seven years. I know what it takes to de­sign an in­ves­ti­ga­tion, ex­e­cute it and make find­ings.”

Who could blame Zuma?

Madon­sela, de­scribed by for­mer Bri­tish am­bas­sador to SA Robin Ren­wick as “the per­son who saved SA”, has a soft voice and gen­tle de­meanour, and it’s easy to see how the then pres­i­dent Ja­cob Zuma might have been be­guiled into en­trust­ing her with the pub­lic pro­tec­tor’s job in 2009.

Who could blame him for think­ing she’d be putty in his hands?

But ques­tion her judg­ment, in this case on the amount of time she’d have needed, and you strike a rock.

“I’d have been able to do it within that space of time. We’d have com­pleted it in six months if we had the re­sources.”

This is not an in­dict­ment of Zondo and his team, she says. “I was pub­lic pro­tec­tor and trained in such in­ves­ti­ga­tions. Be­fore that I was a re­searcher.”

There’s a dif­fer­ence be­tween be­ing a lawyer and be­ing a re­searcher, she says.

“As a re­searcher your job is fact-find­ing. This sharp­ens your teeth. So I am trained in such in­ves­ti­ga­tions. I know how to in­ves­ti­gate cor­rup­tion.”

The com­mis­sion was es­tab­lished only in May. Staff selec­tions were held up by the ap­par­ent need for them to be vet­ted by the State Se­cu­rity Agency.

“I wouldn’t have rec­om­mended that,” she says. “As our in­ves­ti­ga­tion re­vealed, the State Se­cu­rity Agency was part of the tainted ma­chin­ery and ob­vi­ously would not have been un­hos­tile to this process.”

The vet­ting “took for­ever”.

“That was un­for­tu­nate. I don’t think vet­ting was nec­es­sary.” Es­pe­cially when speed was “al­ways of the essence”. “Cor­rup­tion is a crime, and the first thing you need to do when you start a crime in­ves­ti­ga­tion is to se­cure the crime scene. The longer it takes to start the process the harder it is to se­cure.”

Se­cur­ing the crime scene in this case would mean se­cur­ing data, en­sur­ing com­put­ers are not thrown away and mak­ing sure no-one sends money out of the coun­try or sells com­pa­nies that may have been in­volved in crime or bought with the prof­its of crime.

The de­lays mean that as­sets and money have been taken off­shore and a lot of data will have “dis­si­pated”. Much of it is in com­put­ers, so you need to se­cure the hard drive, she says.

“There’s a course called ‘sharp­en­ing your teeth’ where you’re taught all this.”

Then the long, drawn-out tes­ti­mony of the wit­nesses. “In­stead of wor­ry­ing about whether [for­mer ANC MP] Ms [Vytjie] Men­tor can re­mem­ber what she ate that day — I can’t re­mem­ber what I ate last week, and she has to re­mem­ber what she ate in 2013 and we make her look ridicu­lous be­cause she can’t — or whether she can re­mem­ber if it was Ajay or Tony or Atul [Gupta] … it doesn’t mat­ter.”

Ever-so-slightly amused

The pain could have been avoided and time saved, she says.

“With data tri­an­gu­la­tion we wouldn’t sub­ject Ms Men­tor to this ridicu­lous test. We’d use mod­ern tech­nol­ogy.”

Just in case you think she’s crit­i­cis­ing the good judge, she quickly, in her soft, im­pec­ca­bly po­lite, ever-so-slightly amused way, puts you right.

“With due re­spect, although I have my views on how such in­ves­ti­ga­tions need to be done, it would be grossly im­proper of me to start ques­tion­ing the method­ol­ogy and dis­cred­it­ing the ap­proach of the com­mis­sion.”

She says Zondo never asked her how she thought she’d be able to do the job in six months when he felt he needed six months and two years.

“I sup­ported them giv­ing them­selves a two-year ex­ten­sion with the un­der­stand­ing that the two years pro­vide just an outer dead­line to make sure they’re not put un­der pres­sure. I still hope that they can fin­ish this process in a year.”

Even that seems long given the ev­i­dence the com­mis­sion al­ready has in front of it, con­tained in her 355-page re­port, 200,000 Gupta-leak e-mails, par­lia­men­tary in­quiries and ex­ten­sive re­port­ing by some of the best in­ves­tiga­tive jour­nal­ists in the world.

“That’s not ev­i­dence, that’s data that needs to be con­verted into ev­i­dence. Its au­then­tic­ity needs to be ver­i­fied.”

She au­then­ti­cated a lot of it in her re­port, but she’s “a dif­fer­ent body”, she says.

“It would have been a dif­fer­ent story if they had re­quested me to present my ev­i­dence. It would have gone in im­me­di­ately as pure ev­i­dence, then they would have cross-ex­am­ined me about how I got that ev­i­dence.”

That could have speeded up the process, she says.

Should the com­mis­sion have called her?

Zondo ‘needs to au­then­ti­cate the prima fa­cie case’

“I don’t want to say what they should have done. It would be grossly in­ap­pro­pri­ate if you’re jus­tice Zondo and you read that the per­son who did half the process is now play­ing God and say­ing you should be do­ing this her way.”

Hav­ing said that, she be­lieves it is “im­por­tant for the sta­bil­ity of the South African state” for the com­mis­sion to fin­ish its work as quickly as pos­si­ble.

“Be­cause there is prima fa­cie ev­i­dence in my re­port that el­e­ments of the state were cap­tured and re­pur­posed to drive the process of ac­cu­mu­la­tion by a par­tic­u­lar fam­ily.

“If that is true it means the rot will con­tinue for the next two years or be­yond.”

Zondo needs to au­then­ti­cate the prima fa­cie case that was made in her re­port and de­ter­mine if it is true, she says.

“We need to stop the rot. Also, if we take too long we won’t get any of the money back.”

Repa­tri­at­ing it from Dubai or wher­ever is al­ready go­ing to be ex­tremely com­pli­cated.

Based on the anec­do­tal ev­i­dence she had, a lot of the Gup­tas’ money was in cash, not all of it was in banks.

Zondo also needs to get on with it be­cause “it’s im­por­tant that we re­store the rule of law. If lead­ers are seen to get away with break­ing the law then ev­ery­body dances around the rule of law.”

There are signs of this wher­ever you look, she says.

“There is a grow­ing law­less­ness, and you want to put an end to that.”

While mov­ing ahead with haste the com­mis­sion “wants to be sure” that once its find­ings are made peo­ple will not take them on re­view, so that they can be im­ple­mented with­out de­lay.

She says one of the rea­sons she de­cided there must be a com­mis­sion of in­quiry is that she wanted to sub­ject the is­sue of state cap­ture to the court of pub­lic opin­ion.

It gives peo­ple an op­por­tu­nity to hear those in­volved speak for them­selves

“Peo­ple may not be so­phis­ti­cated in terms of un­der­stand­ing le­gal prin­ci­ples, but peo­ple know the truth. When it is fin­ished they will know what hap­pened.”

She hopes ev­i­dence will be ready to go straight to the Na­tional Prose­cut­ing Au­thor­ity (NPA).

“It is the con­cern of most of us that not just the NPA but a lot of the law en­force­ment and pub­lic ac­count­abil­ity in­sti­tu­tions may have been cap­tured.”

To limit the dan­ger of cap­tured el­e­ments within the NPA de­lay­ing the pros­e­cu­tion process, she says Pres­i­dent Cyril Ramaphosa needs to quickly ap­point a na­tional direc­tor of pub­lic pros­e­cu­tions.

“I wish it had hap­pened yes­ter­day. I do hope the de­lay is due to the fact that the pres­i­dent is se­lect­ing the most trust­wor­thy, the most com­pe­tent and the least con­flicted per­son.”

She sus­pects it is tak­ing so long be­cause there “isn’t an ob­vi­ous per­son” who sat­is­fies these cri­te­ria.

“We want some­one who on the one hand is knowl­edge­able but who on the other has avoided cap­ture. There isn’t a big pool to choose from.”

She says the most star­tling rev­e­la­tion for her so far is that the banks met the ANC at Luthuli House over their clos­ing of the Gupta ac­counts. She hadn’t known about that, but she doesn’t be­lieve that on its own this is ev­i­dence of ANC com­plic­ity in state cap­ture.

ANC can­not not be on trial, she mim­ics

The ANC “bul­lied” the banks, which she says was “not right”. But it wasn’t the first time the ANC had “bul­lied busi­ness”.

She has a fit of the gig­gles when asked to re­spond to the as­ser­tion by Zizi Kodwa, ANC leader in the pres­i­dency, that the ANC was not on trial be­cause it made the Zondo com­mis­sion hap­pen, so how could it be on trial?

“‘The ANC can­not not be on trial,’” she says. “If it is not on trial for com­plic­ity then it is on trial for sleep­ing on duty. It’s about ac­count­abil­ity.”

She doesn’t have enough data to say that the ANC was aware it was aid­ing and abet­ting state cap­ture by the Gup­tas when it bul­lied the banks.

“There’s this nar­ra­tive that says when a big en­tity goes down, in this case a TV sta­tion and me­dia house, there are so many fam­i­lies tied to that, and the im­pact on an econ­omy that is al­ready un­der enor­mous pres­sure is some­thing that as the gov­ern­ment you can’t ig­nore. You might hate the Gup­tas, but you might hate job­less­ness more, so you in­ter­vene.

“I don’t have enough in­for­ma­tion to know what the ANC lead­er­ship knew and what they didn’t know. But I do know they had an op­por­tu­nity to in­ves­ti­gate and they chose not to. Why, we don’t know. They had an op­por­tu­nity to sup­port a com­mis­sion of in­quiry be­fore a court of law.”

A lit­tle bit cyn­i­cal

SA would have been in a dif­fer­ent space to­day if the ANC had given her the sup­port and re­sources she re­quested, she says.

For a start, many of the as­sets the Gup­tas have sold, hid­den or moved off­shore would still be here.

“We would have con­cluded this process while Gupta as­sets were still in Gupta hands.”

She says she’s be­come “a lit­tle bit cyn­i­cal” about the em­pha­sis in the crim­i­nal jus­tice sys­tem on send­ing peo­ple to jail. “When some­body has taken money from com­mu­ni­ties the pri­mary con­cern should be get­ting that money back, with in­ter­est.”

For­mer fi­nance min­is­ter Pravin Gord­han, now min­is­ter of pub­lic en­ter­prises, es­ti­mates that state cap­ture cost the econ­omy R100bn.

“Think how we could lever­age those stolen re­sources to earn more re­sources. For me the great­est pain is that the bulk of those re­sources has gone off­shore. Peo­ple go to jail and then come out and en­joy the fruits of their crime.

“My pri­or­ity if I were still in this process would be to get back the money from all the role­play­ers. Every­thing, in­clud­ing your house, must be taken. That will send a far stronger mes­sage that crime doesn’t pay than just send­ing peo­ple to jail.”

Madon­sela turned down top job of­fers from the World Bank, the United Na­tions, sev­eral South African uni­ver­si­ties and a ma­jor law firm, in favour of chair­ing the fac­ulty of so­cial jus­tice at Stel­len­bosch.

One of her goals is to pro­mote “democ­racy lit­er­acy” among stu­dents so that no longer will they be “conned” by cor­rupt po­lit­i­cal lead­ers.

The stu­dents at Wal­ter Sisulu univer­sity who cheered Zuma re­cently did so be­cause “they don’t un­der­stand how democ­racy works. We need young peo­ple who are democ­ra­cylit­er­ate so that al­low­ing some­body who let them down so badly to come back as a hero will never hap­pen again. We need to in­cul­cate democ­racy lit­er­acy so that peo­ple can see when things go wrong and step up be­fore things go hope­lessly wrong. When the red flags start show­ing, peo­ple should jump. Not when the boat has sunk.”

Cor­rup­tion is a crime, and the first thing you need to do when you start a crime in­ves­ti­ga­tion is to se­cure the crime scene

My pri­or­ity… would be to get back the money from all the role­play­ers. Every­thing, in­clud­ing your house, must be taken

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 ?? Pic­tures: Esa Alexan­der ?? For­mer pub­lic pro­tec­tor Thuli Madon­sela is now a pro­fes­sor of law, hold­ing a chair in so­cial jus­tice at Stel­len­bosch Univer­sity.
Pic­tures: Esa Alexan­der For­mer pub­lic pro­tec­tor Thuli Madon­sela is now a pro­fes­sor of law, hold­ing a chair in so­cial jus­tice at Stel­len­bosch Univer­sity.
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