Chief Justice Raymond Zondo hands over the final judicial commission on the state capture report to President Cyril Ramaphosa. The decision by the Middelburg Specialised Commercial Crimes Court in Mpumalanga to strike off the roll R2.8 billion fraud and corruption case against Koko and eighteen others is indicative of the challenge a pressured NPA is likely to face, the writer says. – Picture: Oupa Mokoena / Independent Media
By Sipho Seepe
Stripped of all the hype, the Judicial Commission of Inquiry into Allegations of State Capture, Corruption, and Fraud in the Public Sector including Organs of State (dubbed Zondo Commission), which took almost four years to complete, and the expenditure of more than R1 billion, has not led to successful prosecutions.
The reasons are not hard to find.
Max Rainer of SchoemanLaw Inc assists us in dispelling exaggerated expectations of what commissions of inquiry can achieve. To paraphrase Rainer: First, commissions of inquiry are distinct from court proceedings insofar as they are inquisitorial. Second, the findings of commissions of Inquiry are not binding in the way that court rulings are. Third, commissions are “able to admit any evidence that may be deemed useful to the inquiry, whereas a court of law may only consider admissible evidence”.
Responding to allegations before the ‘Zondo Commission’ by former Passenger Rail Agency of SA (Prasa) chairperson Khanyisile Kweyama that he had dissolved her board illegally, Fikile Mbalula did not mince his words in what he thought of the Commission. Speaking as the then Minister of Transport, Mbalula argued that the Zondo Commission of Inquiry into State Capture “is a place for everybody to urinate there, because they are bored”.
Mbalula’s crude language was reckless for someone in his position. This, however, does not take away the import of his reading of the nature of the submissions at the commission. Lost to his detractors, and probably unbeknown to him, Mbalula was unwittingly interrogating the efficacy of commissions of inquiry as tools of accountability.
The fact that witnesses are not subjected to rigorous cross-examinations is always a tall order for the prosecuting agencies. It is precisely for this reason that in several instances, the commission has called for further investigations of those implicated in his report. Without further investigations, most of the testimonies and evidence submitted would be of little value to the NPA.
This was evident in the case involving Matshela Koko, the former Group Chief Executive. Even before he was hauled before the court, Koko suggested that the Eskom chapter of the Zondo report should be thrown in the rubbish bin. Koko went further to suggest that Zondo had lost his marbles. Koko argued.
“After reading a significant part of the State Capture Commission Report part IV, I have come to the conclusion that CJ [Chief Justice] Zondo has set up the NPA to fail. For example, see the attached highlights from the report and my affidavit. Justice Zondo has gone crazy.”
Further questioning the credibility of the report, Koko continues. “I was directed by CJ Zondo to submit an affidavit instead of being led by my counsel because he had [run] out of time. To my surprise, Judge Zondo said he did not read my affidavit but only went through the themes. I repeat, Judge Zondo has set up the NPA to fail.”
Taking the bull by the horns, Koko subsequently demanded in December 2022 that the commission must provide evidence that it used to implicate him in state capture. Eight months later, the commission had failed. This was after the commission had failed to file a responding affidavit meant to oppose his review application. For Koko, the Commission has nowhere to hide: “Their degree of freedom is now limited”.
The decision by the Middelburg Specialised Commercial Crimes Court in Mpumalanga to strike off the roll R2.8 billion fraud and corruption case against Koko and eighteen others is indicative of the challenge that a pressured NPA is likely to face.
As Koko correctly points out. “The NPA is doing South Africans a big disservice. You can’t make such allegations, investigate them for more than 5 years, bring me to court, wake me up at six in the morning, and more than 12 months later you’re not ready to go to trial. What we see here is hate crime.”
Koko is not alone in taking the Zondo Commission’s report on review. Accusing the Commission of making decisions on questionable assumptions, Gwede Mantashe, Minister of Mineral Resources and Energy was unequivocal. “I’ll take the report for judicial review … we should take it on review because you can’t have a judicial process that makes assumptions … then it needs to be reviewed judicially.”
The NPA suffered a similar setback in the case of Mr Duduzane Zuma. As I have argued before, this case stands out as one of the most egregious abuses of power. Following a lot of noise from mainstream media, Zuma junior was arrested when he returned to attend his brother’s funeral. He was immediately manacled and brought to court.
It didn’t take long for the case to be thrown out due to lack of evidence. Desperate to get a conviction, Zuma was charged again. This time, for culpable homicide. Once again, the court found him “not guilty of culpable homicide and negligent driving over a fatal car crash, saying prosecutors had failed to prove their case beyond reasonable doubt”.
The failure to secure a conviction in a case involving Mr Koko and Mr Zuma is an embarrassing reminder that allegations and accusations, however damning, are in themselves inadequate to secure a conviction. As Batohi correctly pointed out “the burden of proof on the NPA in criminal investigations is beyond a reasonable doubt, which is a higher burden of proof.”
While the mainstream media has been waxing lyrical about the Commission, the credibility of the Zondo Commission will ultimately be tested in the courts and the court of public opinion. The fact that the Zondo has sought to ignore inconvenient testimonies presented by others, and the selective prosecution of those implicated by the Commission, leaves much to be desired.
As the NPA attempts to follow those implicated in the state capture, it would be wise to heed the advice of the Middleburg regional magistrate Stanley Jacobs. Jacobs advised the NPA to enrol in only matters that are trial-ready. “Matters don’t just get enrolled in the regional court or the high court for purposes of investigation.”
The apartheid government used commissions as tools of diversion. The ‘post-apartheid’ government runs the risk of using commissions as tools for settling political and personal scores.
A case in point is how the Nugent and Zondo Commissions treated certain individuals. For the Nugent Commission, Pravin Gordhan was presented as a squeaky-clean crusader against corruption. This holier-than-thou treatment evaporated quickly when he was subjected to cross-examination during his appearance before the Zondo Commission.
Some of the allegations that he made were found embarrassingly wanting. It took an international journalist to expose Pravin Gordhan’s lack of facts on corruption and state capture. During an interview on CNN on 27 April 2017, veteran journalist Christiane Amanpour asked Gordhan if he had any information that might implicate former President Zuma in any acts of corruption. “No, I don’t have any personal information,” Gordhan said. An embarrassing exposé indeed.
The Zondo Commission report faces the second hurdle of being subjected to judicial review. This is likely to delay the NPA from finalising its process of bringing those who have been implicated to book. The enlisting and recycling of the likes of Paul Pretorius and Matthew Chaskalson to join the NPA fight against graft is part and parcel of the marginalisation of black talent. It is no different to slave plantations where whites are often called to whip blacks into line.
* Professor Sipho P Seepe is a Higher Education & Strategy Consultant.
** The views expressed in this article are those of the writer and do not necessarily reflect the views of IOL or Independent Media