POLITICS
08/03/2018 04:43 SAST | Updated 09/03/2018 12:01 SAST

State Capture? Never Again, Says Judge Zondo

The appointment of the commissioners of inquiry into state capture is a moment of hope after a time of despair.

Felix Dlangamandla
Deputy chief justice Raymond Zondo, flanked by the commissioners he has chosen for his inquiry into state capture. March 7, 2018.

As deputy chief justice Raymond Zondo unveiled the six commissioners who will drive the judicial commission of inquiry into state capture with him on Wednesday, he said his desired outcome was to ensure that South Africa never again experienced the state capture it has suffered.

Minister of Public Enterprises Pravin Gordhan has previously said that capture may have cost the country R100-billion in its most intense period – the country's reputation for good governance was savaged, as economic growth declined over the past decade.

It is unlikely that Zondo's commission can eradicate corruption, but the men and women who will dedicate a lot of this year to uncover what has happened is in itself a triumph of institutional strength and of law over the destruction of institutions in the pursuit of illegal accumulation.

The story starts with the former public protector, who bequeathed to South Africa a report on state capture that she said was incomplete. Because of this, she recommended that a judicial commission of inquiry into state capture be appointed by the then-president, Jacob Zuma, but that the choice of judge be made by chief justice Mogoeng Mogoeng, because the former leader was "front and centre" in the story of corruption.

The result is the inquiry, the full title of which is "The judicial commission of inquiry to inquire into allegations of state capture, corruption and fraud in the public sector, including organs of state."

Zondo will continue to sit as deputy chief justice as the commission's wheels grind into gear in the last two weeks of March, but because the inquiry falls under him, the Constitutional Court serves as the protector of the inquiry and its shelter and home.

The judge who will preside over the exorcism of state capture had an ace up his sleeve when he announced that the former auditor-general, Terence Nombembe, will head investigations for the commission.

Nombembe built the auditor-general's office into the formidable institution it is – one that is independent and fearless in protecting the public rand. He is forensically skilled and knows public finances inside and out. Most of the state capture happened at the interface between public and private lawlessness and involved looting public coffers, especially in the provinces and in the state-owned companies.

Terrence Mncedisi Nombembe

Terrence Mncedisi Nombembe

Nombembe understands that world from his previous perch, and his teams have included not only accountants and auditors, but the best forensic investigators in South Africa. Now, he will assemble a team of crack investigators who will get to work almost immediately.

Zondo called on another top colleague to work with Nombembe on investigation-driven legal cases. Paul Pretorius will head the legal work of the commission.

Pretorius is a quiet legal revolutionary: he was a student activist and is capped as a leading advocate today in a practice that is both varied and principled. His expertise is in alternative dispute resolution, in which he is a global leader. Principled and assiduous, he and Nombembe will make an excellent team.

Paul Joseph Pretorius, SC

Paul Joseph Pretorius

The commission has top legal eagles aboard: the doyen of top silks (senior advocates), Vincent Maleka has been called into service. He has great expertise in commissions of inquiry and as the legal protégé of former deputy chief justice Dikgang Moseneke, and he has all the majestic bearing of his mentor. Maleka brings legal heft and gravitas to the job.

There are two top women advocates who will be drafted into the commission as it shifts into gear: Leah Gcabashe and Thandi Norman. Both have served as acting judges and are members of Advocates for Transformation, so they are likely to insist on a structural and wide understanding of state capture that links apartheid-era economic capture to its current pernicious forms.

Norman worked on the Goldstone commission of inquiry into taxi violence in Eastern Cape, while Gcabashe also worked on the Truth and Reconciliation Commission's amnesty committee.

Thandi Victoria Norman

Google

Everywhere you look, there are inquiries into state capture happening: several running concurrently at Parliament and at least two in the private sector. Zondo says they are likely to cooperate and consolidate the work of these other inquiries to create an omnibus investigation.

The commission will not prosecute, but it can recommend prosecutions – and in order to fulfil Judge Zondo's promise of "never again", witnesses who volunteer evidence can get immunity from prosecution. Reports suggest many of the looters now running scared are making overtures to turn their coats as South Africa's biggest effort to turn the tide on runaway corruption gets underway.

The Guptas are said to be among those making overtures, but if they remain fugitives, Zondo and his team of Capture Busters have powers of subpoena.

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