The State of Capture Commission is not a gallery of public opinion. It is a judicial chamber governed by and beholden to the basic precepts of law. The presumption of innocence, until proven guilty, the principle of reasonable doubt and the rules of evidence are sacred. But currently, the reliance on hearsay, an unsteady judicial Sherpa, is plunging the Commission into crisis. Senior counsel and member of the Bar Vuyani Ngalwana has written about how the ‘’rule of law is being abrogated by the rule of the media”.
The malady of State Capture must be effectively dealt with, without fear or favour, and without reasonable doubt, on the back of fact, not allegation. This Commission is not the first judicial Inquiry to find itself caught in an avalanche of allegation. Lest we forget, we have been here before.
After 16 years of media onslaught on Former President Thabo Mbeki around allegations of fraud, corruption and impropriety or irregularity in strategic defence procurement, Mbeki’s accusers could not produce the required evidence. The Seriti Commission cleared Mbeki of any culpability in the Arms Deal. By then the former President had been found guilty in a court of public opinion.
Truth can be easily trumped in the plot of propaganda. It took an international journalist to expose Pravin Gordon’s lack of facts on corruption and State Capture. During an interview on CNN in 2016, veteran journalist Christina Amanpour asked Gordhan if he had any information that might implicate President Zuma in any acts of corruption. “No, I don’t have any personal information’’.Gordhan said. An embarrassing expose.
While media headlines have shouted out about bombshells and revelations of the testimonies at the Commission, the real bombshell has been the paucity of substantial evidence or any new disclosures. Vytjie Mentor’s allegation that she was offered the position of Public Enterprise Minister by Ajay Gupta, on behalf of former President Jacob Zuma, was a mouthful of hearsay. Her memory lapse, a cause for concern; illustrated further through her failure to distinguish Brian Hlongwa from Fana Hlongwane, as one of the alleged meeting facilitators. The demonstrably false claim that she alerted Jesse Duarte, the ANC’s current Deputy Secretary, on this alleged meeting, does her no favours in terms of reliability. Nor does the threat by ANC Minister, Gwede Mantashe to sue Mentor over some of her testimony which he refers to as ‘manufactured facts”.
The testimony of former Deputy Finance Minister, Mcebisi Jonas is equally suspect and factually clumsy. Jonas claims he was offered the job of Finance Minister, a bribe of R600m and threatened with death by one of the Gupta brothers, who Jonas initially identified as Ajay Gupta, but later expressed uncertainty about the identity of the brother with whom he had met. It would be a giant leap of faith for any court to entertain such an admission.
Curiously Jonas never reported this alleged meeting to the authorities; citing a lack of faith in the Hawks and the police. By not reporting, Jonas defeats the ends of justice according to Section 34 of The Prevention Of Organised Crime Act of 1988. Section 34 is clear on statutory duty. It states that ‘any person who holds a position of authority who knows or who ought reasonably to have known or suspected that any other person has committed an offence of corruption as defined in the Act or the offence of theft, fraud, extortion, forgery…must report such knowledge or suspicion to any police official’.
In her testimony, Phumla Williams, acting government spokesperson accusing Faith Muthambi, former Minister of Communication, of ‘’torturing’’ her in the workplace. William’s testimony speaks to a human relations or labour matter not to the issue of State Capture. Her testimony may well be true, but there is no trace of any lodged complaint. Further, her accusation of Muthambi’s looting of Government Communications Information Services (GCIS) has little credence as Muthambi received clean audits from the Auditor General. Unless of course, Williams is suggesting that the Auditor General’s Office was involved in criminal misconduct or mischief.
What about Themba Maseko? “My brother, there are these Gupta guys who need to meet with you and who need your help. Please help them”. According to Maseko, these words were uttered by former President Jacob Zuma to him in 2010 when he was CEO of GCIS. Let’s give Maseko the benefit of doubt. Even if former President Jacob Zuma did say this, this is hardly evidence of State Capture. ’’Help’’ is no code word for state plunder or capture. Public servants such as Maseko are routinely called on to help members of the public and organisations.
In the public sector, help has different meaning; it may mean supplying those requesting help with relevant information, directing them to specific departments or explaining specific processes or procedures. It is hardly inappropriate then for the former President to direct a media related query to Maseko who was heading up GCIS at the time. This alleged conversation is by no means an indictment of Zuma’s complicity in State Capture, nor can it logically be interpreted as an instruction to facilitate or to license looting. There are many probable interpretations of what was said. Strangely while claiming to have been a victim for his steadfast ethical stand, Maseko failed to pursue legal recourse available to him.
The National Treasury’s acting chief procurement officer, Willie Mathebula, presented alarming testimony where he pointed out that as much as R400bn could be lost to corruption annually. This is a damning indictment of the extent of State Capture. But his failure to disclose the nature and distribution of this titanic loss across government departments and state owned enterprises or of the beneficiaries involved, means that we are none the wiser how this relates to the Guptas.
Senior bank executives have given testimony on the closure of Gupta accounts, and the alleged intervention of the ANC. Interestingly, Standard Bank’s affable letter to the ANC after their meeting provides a different texture to that presented at the Commission. Addressed to the ANC’s Secretary General a day after the meeting, the letter thanks the ANC for a cordial, constructive engagement. The letter clarifies that the meeting was called by the ANC ‘’not for the purpose of discussing Standard Bank’s relationship with any particular customer(s)’’ but rather to enable the ANC to obtain ‘’a better understanding of the process and criteria applied by Standard Bank in entering into and terminating banking relationships with its customers, especially when politically exposed persons (PEP’s) are involved’’.
This letter, alone, negates much of the testimony. Enough said. The admission by the Chief Executive of Nedbank that escalating media reports on the Gupta family influenced the bank’s decision to terminate this particular business relationship is testimony of the power of the media.
As testimony continues, we must not lose sight of the fact that justice vests in legal scrutiny not public prejudice. In a court of law, the overwhelming predominance of circumstantial evidence in the testimonies presented at the State of Capture Commission would be dismissed with much deserved scorn. The unexamined statements presented at the Commission must be viewed with suspicion until testimony is corroborated by fact and documentary evidence. The precept of reasonable doubt requires explorations of gaps, inconsistencies, alternative or other plausible explanations.
The Gupta emails may provide some durable documentary evidence into the Commission. So too would the admission of other reported emails that show how money is illicitly transferred to foreign tax havens by business elites in our country. In the fullness of time, evidence of State Capture may well be presented and proven beyond reasonable doubt.
Those that are culpable must then face the full might of the law, based on hard, undisputable evidence. But for now, all that is evident is incredulous, inconsistent and logically delinquent testimony. This is an affront to legal precept, process and principle. The ‘eyes wide shut’ defence of such testimony by media analysts and the intelligentsia is a conspiracy against common sense and a public shame.
Professor Sipho Seepe is an academic and political analyst and Heller a communication strategist and analyst