State Capture Inquiry and the pendulium of facts versus fiction continues…

Deputy Chief Justice Raymond Zondo who heads up the Commission of Inquiry into state capture. PHOTO: Karen Sandison/African News Agency(ANA)

Rosa Parks stands as a symbol of Black resistance because she refused to give up her seat to a White man. Yet many have tried to create the illusion that she did not want to give up her seat, not because she was resisting, but simply because she was tired. Parks later had to address this misrepresentation and stated as fact in her biography that she remained seated because she was definitely in defiance. 

Since November 2016, days before her term in office ended, South Africa has been engrossed with notion of state capture, first written about by former public protector Thuli Madonsela. The “State of Capture” report, according to media reports, suggested corruption as well as the specific capture by a specific family of the executive arm of the state. The report suggested that a Commission of Inquiry be set up to investigate these claims of state capture.

Former President Zuma challenged the remedial action stated in the report. He was by now Constitutional Court aware that these remedial actions were not optional and could only be reviewed by a court of law. President Zuma’s contention though was not so much around the contents of the report, for he never objected to the establishment of the Commission, but rather pertained to the procedures of establishing the Commission of Inquiry. By early January 2018, President Zuma had announced the establishment of the Commission, as set out by the public protector’s report.

There were as many commentators who were critical of the report as there were those who supported and defended it. Some academics wrote a document called “Betrayal of the Promise – How South Africa is Being Stolen”. Another wrote a response to this titled: “In Defence of the Academic – State Capture and the Failure to Deconstruct Apartheid’s Shadow State”.

In August 2017, following on from the academics who wrote the “Betrayal of the Promise” document, Professor Anton Eberhard and Catrina Godinho, based at the University of Cape Town’s Graduate School of Business, compiled a booklet called: “Eskom Inquiry Reference Book”. Even though the inquiry was not only into Eskom but all state owned enterprises, Eberhard would later make a presentation to the parliamentary portfolio committee on public enterprises based on this reference book.  

Sadly, like the document “Betrayal of the Promise”, the “Eskom Inquiry Reference Book” was not based on primary research but was simply, in the main, a gathering of media reports and other information that was already in the public public domain. “Betrayal of the Promise” did indeed examine the concept of “state capture” but, as the response “In Defence of the Academic” pointed out, it was also conceptually challenging. 

“In Defence of the Academic” was both critical towards the public protector’s report for she too would hopefully admit that her investigation was scant at best and based on media reports and hearsay. Picking up from this standard, “Betrayal of the Promise” was no different in that it simply went after hearsay and unsubstantiated media reports.

As a result, now that the Commission of Inquiry has been established, it comes as no surprise that the presiding chairperson, Deputy Chief Justice Raymond Zondo, would appeal for persons to come forward and even more so for those who have testified before the commission or submitted documents to come with evidence substantiating their allegations.   

Quoting Chairperson Zondo in whole is useful when he said: “…I have been making this call…and want to repeat that there must be a number of ministers in the present and previous cabinets who must have some knowledge of things that happened. I am saying, please come out to help the commission…there must be a lot of senior officials in government, in the NA [National Assembly], NCOP [National Council of Provinces], who know things that fall within the terms of reference of this commission.”

Zondo went on with his appeal: “…we ask them to come forward. I also just want everyone to know that just because we have been inviting them to come forward, doesn’t mean that because they do not come forward, this commission will not get to know what they know. Commission will investigate, and there will be appreciate the importance of this work for the country.”

In other words, the chairperson of the Commission of Inquiry seems to be in a very precarious situation where allegations have been made but little to no evidence exists to substantiate these allegations. All the commission has been able to do hitherto is catch headlines; headlines that the public protector and academics, such as Erberhard, based their work on. 

The country is none the wiser as to what were the circumstances which facilitated the cause of state capture and, like the parliamentary portfolio committee inquiry into public enterprises, it seems that one family, who have long left our shores, has been the focus of this commission. 

Again, as academics such as Steven Friedman will contest, South Africa concentrates too much on agents rather than on structures. It is for this reason that the people who championed state capture seem to be nowhere near the commission themselves to provide evidence. Should not Advocate, now Professor, Madonsela have been the first to present her findings at the Commission and present to the Commission what she had based her report on? Or is it because she herself knew that her report was as done as fast as it was flimsy? 

Given that we are basing our inquiries on newspaper reports, a meeting was reportedly held on 13 December 2015, days after President Zuma appointed Des van Rooyen as the finance minister, at which the then president was apparently summoned and facilitated by three members of the Top 6 of the ANC. The meeting also had minister/s and business people present. When will the commission hear of the instructions given to the president at this meeting and does this meeting and the instructions not constitute state capture? 

The reality of course was that state capture was a rally slogan in the lead up to Nasrec 2017. The Commission of Inquiry, now proving to be a headache for the ANC as members on both slates have been fingered, was meant to happen before Nasrec not before the elections. At best, if state capture exists then its roots can be found as far back as the Broederbond, and, at worst, it simply never existed. Yet now “evidence” needs to be created to support that perception that some are dealing with state capture. 

The challenges we have in capture and within our public enterprises in particular were not peculiar to the Zuma administration nor were they something that was new. Look and the Mandela and Mbeki era, where handfuls of businessman were endowed with government contracts and contacts. Even the apartheid regime had to bail out state owned enterprises before a number of them were sold off before 1994. 

As with Rosa Parks, we have been subjected to an illusion and South Africa is the poorer for it. Taxpayers money has been spent on the parliamentary inquiry, a price tag that we have yet to hear of, while the Zondo Commission has been priced at costing us at least R230 million. The political football that some insist on playing is costing us millions. Is this not state capture?

Bernard Joseph is the Provincial Chairperson of the EFF in the Western Cape