POLITICS

State Capture: Zondo Will Have To Make Deals With Devils

There’s not much wrong with the terms of reference for the Zondo commission of inquiry into state capture. But the Guptas have a head-start. And that’s bad.

26/01/2018 06:10 SAST | Updated 26/01/2018 11:04 SAST
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Deputy Chief Justice Raymond Zondo... the commission of inquiry into state capture will have to box clever.

ANALYSIS

The actual proclamation of the Zondo commission of inquiry by President Jacob Zuma reads: "In terms of section 84(2)(f) of the Constitution of South Africa, 1996, I hereby appoint a commission of inquiry... and appoint Honourable Mr Justice Raymond Zondo as its chairperson."

Zuma, found by the Constitutional Court to have breached the Constitution in the Nkandla judgment, fingered as a central figure in the public protector's state capture investigation and himself the subject of corruption charges, enacts the commission thus: "Given under my hand and the seal of the Republic of South Africa at Pretoria on this, the 23rd day of January two-thousand-and-eighteen."

Underneath his elaborate signature, it reads: "By order of the president-in-cabinet."

Zuma, this country's fourth democratic head of state, will now officially be probed by a judicial commission of inquiry forced upon him after more than a year of legal and political wrangling.

As if Zuma had a choice. As if he had driven the exercise so that he may "order" it, or wanted the deputy chief justice to chair it. Or, for that matter, as if he respects "the seal of the Republic of South Africa". He did not want the commission of inquiry, he certainly did not want to be told by the chief justice whom he needs to appoint as its chairperson, and he has shown scant respect for his custodianship of the state.

Zuma, this country's fourth democratic head of state, will now officially be probed by a judicial commission of inquiry forced upon him after more than a year of legal and political wrangling. On top of this, he is also likely to face 18 charges related to 783 counts of corruption, fraud, racketeering and money-laundering soon.

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Deputy President Cyril Rampahosa at the World Economic Forum at Davos this week.

It is untenable, and the ANC should do as the BBC's Zeinab Badawi suggested to Deputy President Cyril Ramaphosa on HARDTalk on Thursday: say, "You must go, and you must go now."

The Zondo commission's terms of reference seemingly cover the 11 main issues that former public protector Thuli Madonsela identified as needing further investigation in her "State Of Capture" report. They pertinently say that the commission must be guided by the report and the recent high-court judgment, which reinforced Madonsela's findings.

Although the terms do not specifically refer to Duduzane Zuma, Eskom or Tegeta, it is clear that those issues will be investigated. Gratifyingly, the offers that Mcebisi Jonas (former deputy minister of finance) and Vytjie Mentor (former ANC MP) say were made to them by the Guptas will specifically be investigated. The same goes for the Guptas' purported efforts to strong-arm Themba Maseko, government's former communications chief, to spend money on The New Age, the family's mouthpiece.

But the Guptas and their stooges are clever. They've had enough time to get rid of the evidence; they've had more than a year to prepare . . .

Zondo will run a tight ship; he will have enough resources and he will have the power to enter and search premises.

But the Guptas and their stooges are clever. They've had enough time to get rid of the evidence; they've had more than a year to prepare for the inevitable, because they knew the Zuma party wouldn't last forever.

By now, thousands of pieces of documentary evidence have probably been shredded, emails deleted and servers destroyed, invoices altered, travel arrangements backdated, shelf companies dusted off, addresses changed, money moved offshore, pictures erased from smartphones, company books doctored, gifts and bling alibied, public servants bought off and stories concocted.

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Clever . . . Ajay and Atul Gupta.

The Zondo commission has six months to investigate and report. It won't be able to finish the job in such a short period of time and will have to be strategic in its assault. Zondo must appoint a capable, driven team led by expert investigators and evidence leaders – such as advocates Nthutuzeli Vanara and Kevin Malunga – to ensure we get a head on a stake.

If we want the big fish, we're going to have to deep fry the smaller ones.

But South Africans will have to prepare for deals being made with devils. Section 204 of the Criminal Procedure Act gives indemnity from prosecution if someone incriminates himself while giving evidence, provided it is done fully and honestly.

For Zondo and his squad to coerce those mid-level to senior bureaucrats who had to do their principals' dirty work to help them, in the absence of invoices and receipts, the carrot of a get-out-of-jail-free-card will be pretty juicy.

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Malusi Gigaba on the day he was sworn in as minister of public enterprises in 2010.

Take someone like Siyabonga Mahlangu, who was an adviser to Malusi Gigaba, now minister of finance, but formerly the minister of public enterprises, under whose watch the rot at state-owned enterprises started. He lured Brian Dames, then Eskom CEO, to meet with the Guptas, who allegedly wanted to talk about coal contracts and money for The New Age. He also travelled to India with Duduzane Zuma and Tshepiso Magashule, Ace Magashule's son. Both Zuma and Magashule (junior) work for the Guptas.

Another Gigaba adviser, Thamsanqa Msomi, seems to have been the Guptas' "fixer" in the department of home affairs, helping with visas for family and business associates, the #GuptaLeaks emails revealed.

It will be bureaucrats such as Mahlangu and Msomi who will need to be squeezed and cajoled to tell the story of state capture. They know what, where and when it happened. If we want the big fish, we're going to have to deep-fry the smaller ones.