Over the past couple of months, the Zondo Commission of Inquiry into State Capture has been subjected to criticism over its alleged bias against certain witnesses and advancing a political agenda. Its detractors contend that DCJ Zondo and the Commission are engaged in politicking and selective targeting, advancing a narrative of State Capture at the expense of certain individuals that have fallen out of favour with the powers that be. This criticism is seen by many as a weak defense by individuals aligned to former President Jacob Zuma, around whose tenure as head of state the inquiry is centered and whose aim is to undermine the credibility of the Commission in the eyes of the public, thus rendering its findings questionable.
It must be noted that since its inception, the Zondo Commission has faced criticism of its work and agenda. To cite a few examples, former Minister Nomvula Mokonyane raised concerns relating to her right to procedural fairness and the deviation of the Zondo Commission from its own rules. Former SARS Commissioner Tom Moyane also raised issues around the right to cross examination. Recently, in a leaked voice clip from the African National Congress’ (ANC) top 6 meeting held in March 2021, Deputy Secretary General Jessie Duarte lamented the Commission as taking on a prosecutorial stance against several witnesses including Jacob Zuma. The leader of the Economic Freedom Fighters, Julius Malema has also criticised the Commission for pursuing a factional agenda, though it cannot be said this is in defense of Jacob Zuma.
The defenders of the Commission, including various political and civil society formations such as the Defend our Democracy movement have praised the Commission for exposing the extent of rot and corruption within our public institutions. They have argued that the attacks on Judge Zondo are unwarranted and sought to undermine the Commission’s eventual findings. In 2020, the Black Lawyers Association stated its support for Zondo and the work of the Commission, arguing that criticisms against the Commission served to undermine its work. Recently, the South African Human Rights Commission has also defended the work of the Zondo Commission and stated that it is essential in ensuring that those responsible for corruption are held to account and, hopefully, to deter all those considering such acts in the future.
It would be fallacious, however, to interpret all criticism against the Zondo Commission as purely political. To the contrary, there have been noted contradictions in the way the Commission has conducted its work which deserves critical assessment. The treatment of certain witnesses by the Commission’s evidence leaders has been highly questionable at times. Witnesses such as Mcebisi Jonas and Minister Pravin Gordhan were given a relatively easy ride and allowed to make unsubstantiated allegations against certain individuals at the Commission. On the other hand, we have witnessed Judge Zondo adopt a hardline stance against witnesses such as former PRASA CEO Lucky Montana and former Eskom CEO Brian Molefe. While Gordan was permitted to ‘connect the dots’, Molefe was lambasted for doing the same.
The expansion of the Commission’s mandate beyond former Public Protector Thuli Madonsela’s state capture report has opened it up to the kind of criticism and speculation it faces currently. Madonsela’s state capture report limited its focus to alleged state capture by the Gupta family and Zuma. The report cautioned that there be no room to expand the Commission to include what was never investigated by the public protector’s office.
However, in January 2018 Madonsela’s successor, Busisiwe Mkhwebane argued that Judge Zondo be awarded powers to expand investigations to any relevant allegations of state capture that was brought forward in the inquiry – a bid which eventually proved successful. In July 2020, President Ramaphosa, with the support of the Zondo Commission, amended the terms of reference again by allowing state agencies to access information from the inquiry to support criminal investigations.
The extended mandate of the Commission beyond Madonsela’s 2016 state capture report, which now allows it to investigate any allegation of state capture made and support investigations by state agencies, has inadvertently opened it up to the kind of criticism it currently faces. In a recent interview with Daily Maverick, Madonsela stated that expanding the reach of the Commission was a mistake which has resulted in the Commission failing to conclude its work four years later after its inception.
Indeed, the criticism waged against the Commission places it in a precarious position. Due to the nature of its work, the delivery of the Commission’s mandate has an exceedingly public dimension. This places the Commission in the unenviable position that its work will not be judged on the veracity of its processes and findings, but rather public perceptions about what it ought to have done or not done. Cast in this light, it remains to be seen how the Commission’s final findings report will be received.
Written by Siseko Maposa