‘It’s a mistake to think that state capture was only about Zuma’
PRESIDENT Cyril Ramaphosa could not miss an opportunity to rush to the parliamentary scene of a crime. A less excitable head of state would wait for reports from responsible department officials and ministers before commenting on an unfolding investigation. But that would not be in keeping with a presidency marked by cheap publicity stunts. This is so when there appears to be political mileage to be gained.
Arguably, a stampede to a crime scene is excusable where there has been a massive loss of life. Ramaphosa made one to Phoenix following the social unrest in July. God knows why, despite many promises, he is yet to go to Marikana.
It is in such unguarded moments when he plays to the gallery that Ramaphosa makes inane comments. The memorable ones include describing last year’s social unrest as ethnic mobilisation, and an insurrection.
Media reports suggest that during the State memorial service, he portrayed the former apartheid party leader FW de Klerk, who has blood on his hands, as a man who fought for the rights of the oppressed.
The handover of the report on the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector State Capture provided Ramaphosa with another opportunity to present himself in the most favourable light.
“This is a defining moment in our country’s effort to definitively end the era of state capture and to restore the integrity, credibility and capability of our institutions, but more importantly, our government.”
If only it was that easy. One would have thought the scandal regarding the personal protective equipment procurement did not take place under his watch. The picture Ramaphosa presents stands in glaring contrast to how ordinary South Africans perceive his administration.
According to an 2021 Afrobarometer survey, many South Africans think corruption has worsened under his administration, with 64% saying it increased in the last year. More damning is that 53% of those surveyed think his office is also implicated. The outcome of the local government elections and the fact that Ramaphosa was repeatedly booed are consistent with the findings of the survey.
Ramaphosa enthused about how the report lays the “foundation for greater transparency, accountability and ethical conduct within all state institutions and across society”. Big and good talk. Again, if only it was that easy.
Greater transparency was nowhere in sight when Ramaphosa hurriedly asked the courts to seal the files that shine a light on the funding related to his campaign for the presidency of the ANC. Early in his campaign, Ramaphosa told everyone who cared to listen that we needed to get to the bottom of Gupta emails. That was vintage Ramaphosa.
That talk disappeared with lightning speed when his own personal emails surfaced. Ramaphosa approached the courts to seal emails that would call his ethical stance as a leader into serious question. The courts, which routinely pontificate about how transparency is sacrosanct in a democracy, granted his wish. It is no accident that ordinary people have little trust in the judiciary as well.
Indeed, the very Afrobarometer survey referred to earlier reveals that up to 32% of South Africans believe members of the judiciary are involved in corruption. Interestingly, the so-called civil society that is quick to demand transparency and openness miraculously discovered that “silence is golden”.
Ramaphosa’s pontification regarding his administration’s commitment to deal with corruption comes two weeks after the leaking of a recording which suggests that he is possibly guilty of contravening the Prevention and Combating of Corrupt Activities Act12 of 2004.
In the recording, which has been authenticated, Ramaphosa can be heard saying: “We also know as ANC cadres that in some cases state money has been used in some campaigns, we know that we will not talk about it, to the extent Comrade Tony, where some comrades even said that, well, let’s investigate all campaigns and not just one”.
The Act is crystal clear as regards a person in the position of president, in that it places “duty on certain persons holding a position of authority to report certain corrupt transactions”.
Ramaphosa admits not to have done so. As they say, talk is cheap.
The above socio-political context has implications to how the report on state capture will be perceived. As the good book says, those without sin should be the first to cast the proverbial stone.
The opposition parties have already called for heads to roll. The ANC will find itself in a conundrum. Justice cannot be done selectively. All those implicated in any form of corruption should face the full might of the law. There can be no holy cows.
The societal implications are dire. First, a lot of energy will be spent in court cases. The cases can run for years and will certainly contribute to tensions in the governing party.
Second, attention will be diverted away from many critical issues such as the need to address racial inequality and to bring about economic justice.
Third, as we stated elsewhere, “limited by its own terms of reference, the commission is unlikely to disrupt this white hold over state contracts. In all likelihood it will divert attention away from the state of white domination over state contracts and tenders.
“Ironically, in the end, the commission may be complicit in ensuring that whiteness remains as the permanent marker of state procurement.”
In considering the report, we need to ask ourselves whether the moonlighting by Judge Raymond Zondo as a chief justice while still completing tasks for the executive, which happens to be considering his candidacy for chief justice, is constitutional.
The separation of powers principle is enshrined in our Constitution. In the case of SA Association of Personal Injury Lawyers v Heath 2001(1) SA 883 (CC), the Constitutional Court deemed the appointment of a high court judge to lead a special investigation unit, established in terms of the Special Investigating Units and Special Tribunals Act 74 of 1996, as incompatible with the Constitution.
The Constitution requires that a commission appointed by the executive remain exclusively under the control of the executive.
There are other legal considerations worth pondering. First, Justice Zondo submitted his report to Ramaphosa, who has ultimate discretion to accept or reject its findings. Given that state capture deals largely with procurement, the sealing of the CR 17 funding campaign leaves us in the dark. We are in no position to know the identity of the funders and to determine from public records whether these funders have been rewarded with government tenders.
We know, however, that opposition EFF member of Parliament, Tebogo Mokwele, admitted to receiving funds from Ramaphosa’s CR17 campaign. Mokwele later resigned in an effort to “save the integrity of the EFF”.
From the very inception, Justice Zondo’s appointment while still actively serving as a Deputy chief justice is a gross violation of the principles laid down by the Concourt in the Heath judgment.
The Constitution vests in the president the exclusive powers to appoint a commission, but that power was usurped and the judiciary became enmeshed in performing the exclusive executive function.
Second, it is undeniable that crucial to the discharge of this judicial duty is that the courts be and be seen to be independent. But that has now been brought into question by the fact that Justice Zondo resumed his judicial duties while the tasks he was performing for the executive were unfinished and his reports are still being written for the executive as we speak. This act of moonlighting clearly negates the principle that he can be seen to be independent while acting at the behest of the executive.
Third, Justice Zondo is actively pursuing his candidacy for chief justice of the country and the man considering his candidacy is Ramaphosa, who was implicated in corruption by testimony of some witnesses. Not only is Justice Zondo managing CR 17 damage control, but he creates an impression or an appearance that he may exonerate Ramaphosa in a quid pro quo where he will get the chief justice position.
Fourth, indications are the report is heavily slanted against Zuma-aligned persons and is helpful to Ramaphosa in his battle for political survival in the ANC. The appointment as chief justice may just be the reward Justice Zondo wants.
There will be other issues of fact that will be contested. The report speaks, for instance, of the former president Jacob Zuma fleeing from the Commission. In doing so, it mischievously seeks to underplay or ignore the fact that the former president had decided to subject Justice Zondo’s refusal to recuse himself for judicial review. Far from resolving political tensions in the governing party, we can expect more turbulence.
There are those that will get political mileage out of the report. This type of expediency and opportunism has not worked before, and it is unlikely to.
If we are to move forward in dealing with state capture, we may want to heed the warning shot from the former deputy minister of finance, who also happens to have been chief whistle-blower. In his second appearance before the Zondo Commission on State Capture, Mcebisi Jonas had this to say: “The danger, I would still argue, with the process of state capture – can I use the term to ‘over-zumanise’ it? To think that it was about Zuma, that would be the biggest mistake. It is bigger. It is structural. It is systemic. You will miss the point if you do that.”