LexisNexis

State capture in South Africa

Pat Sidley, JohannesburgThursday 13 February 2020

Pic: Deputy Chief Justice Raymond Zondo speaks during the start of the Commission of Inquiry into Allegations of State Capture in Johannesburg, South Africa, 20 August 2018. REUTERS/Siphiwe Sibeko

Deputy Chief Justice Raymond Zondo has become a national hero as he leads a Commission of Inquiry into the remarkable levels of corruption that have further exacerbated the already difficult economic circumstances for most in the country.

At 10am most days, thousands of South Africans switch on the television to one of two channels to watch their favourite judge deal with the country’s stickiest problem. The judge is Deputy Chief Justice Raymond Zondo. The problem: state capture. South Africans use the term to refer to the astonishing levels of corruption in the country that have emerged over the past few years.

According to the Pan South African Language Board, ‘state capture’ was the ‘new phrase’ used most by South Africans in 2018. Tellingly, by the end of 2019, the winner was ‘Zondo Commission’.

Judge Zondo is not regular film star material. He speaks slowly and deliberately with a very deep voice, expresses displeasure without raising his voice and has an unusual air of charm. He was seconded from the Constitutional Court to chair the Commission of Inquiry in Allegations of State Capture, which was launched by President Cyril Ramaphosa.

The hearings have been broadcast live, providing the public with insight into how the country came to be hijacked and robbed of over R 500bn ($35bn). Some experts have suggested the amount may have reached R 1tn ($70bn). The amounts involved have impoverished South Africa and exaggerated the already difficult economic circumstances.

In October, the country’s medium-term budget was presented by the Finance Minister, Tito Mboweni, who had to find a way to deal with South Africa’s state-owned electricity provider, Eskom. The public utility owes billions and resorts regularly to ‘load-shedding’: depriving the citizenry of electricity. Eskom was once a major cash cow, providing one extraordinary family, various consultants and major auditing firms with seemingly endless oceans of cash by using corrupt contracts, creating jobs for pals and fraud. The Gupta family, originally from India, are currently living in Dubai and don’t seem anxious to return to South Africa.

Their reach has been astonishing. The Guptas managed effectively to take over several government departments and ministries through bribes and other means. They attempted – unsuccessfully – to have the then Minister of Finance, Nhlanhla Nene, replaced with his Deputy Minister of Finance, Mcebisi Jonas. The allegation filed to the Zondo Commission stated that the Guptas offered R 600m to Jonas in 2016, with the expectation that he would do their bidding. Jonas declined, and the Gupta family deny that the now infamous meeting ever took place.

Much of the blame has been placed at the feet of former President, Jacob Zuma, who has been closely associated with the Gupta family. Zuma was subpoenaed to testify at the Zondo Commission and reluctantly did so – twice. Zuma gave away little information, instead using the opportunity to tarnish the reputation of several of his formerly highly regarded comrades in arms, calling them ‘enemy agents’. Two have sued, with one, Derek Hanekom, already having won his case and R 500,000 ($35,000) in compensation for defamation.

Zuma also faces charges of corruption concerning an arms deal, but there has been little legal action so far. The former President has repeatedly said he is not guilty of any wrongdoing. He imprudently demanded his ‘day in court’ to clear his name, yet over the years he has frequently forced its postponement. The trial is now scheduled for early this year.

Before the Zondo Commission hearings even began, the press was publishing detailed accounts of the shenanigans surrounding the deals, with daily or weekly reports characterising them as corrupt. One hard drive, said to have originated from a Gupta computer, provided a treasure trove of emails for journalists to further investigate. Several government departments, state-owned enterprises, government officials and ministers have been implicated, though all state that they have done no wrong. The rot has extended so far into the upper echelons of the ruling African National Congress party that President Ramaphosa’s hand in rooting out the problem after he won a general election in May 2019 has been hampered.

In South Africa, Commissions of Inquiry have the power to subpoena witnesses and make recommendations, but cannot enforce them – allowing those accused, in the media and by the Zondo Commission, to claim they are innocent until proven guilty in a court of law. The public are frustrated, and are clammering for answers as to why the law has not been used to put the culprits behind bars, especially since many have been identified, along with details of their alleged crimes, in the media. Part of the answer to that question also lies within state capture.

Lawyers and Chief Justice Mogoeng Mogoeng, who have taken up the allegation that the judiciary has been captured, refute it strenuously.

‘One has to be careful with this,’ says Gilbert Marcus SC, a senior advocate at the Johannesburg Bar. He points to the role of the judiciary in dealing with the many cases that have found their way to court, as well as several other Commissions of Inquiry that have recently heard evidence of corruption.

One of these Commissions was appointed by President Ramaphosa to inquire into the South African Revenue Service, which, along with several officials and Commissioner Tom Moyane, were found seriously wanting. International consultant Bain & Co was found to have changed an efficient operating model in 2015 into one that did not work. Moyane was fired, and so was the consultant. Yet none were prosecuted for criminal offences.


Lawyers and Chief Justice Mogoeng Mogoeng, who have taken up the allegation that the judiciary has been captured, refute it strenuously


The courts have not heard many criminal cases on this issue. One criminal prosecution involved the Estina Dairy Farm in the Free State province, which robbed a community of work and provided millions of rands for Gupta associates to take a choir to India. This case, well documented in the press, was found not to have had sufficient evidence for a successful prosecution. Since then the Public Protector, South Africa’s ombudsman Busisiwe Mkhwebane, has investigated and found no fault on the part of the then Cabinet Minister implicated in the scandal. But the Public Protector is a controversial figure, widely seen as part of Zuma’s backup. The Zondo Commission has since re-investigated Estina and its business, implicating several more provincial officials in wrongdoing. At the time of writing, nothing further has been done to prosecute.

Marcus is wary of tarnishing the judicial processes of the country. ‘The judiciary is one of the few institutions that have not been affected by state capture,’ he says. When asked further about the lack of criminal prosecutions, Marcus points to the former head of the National Prosecution Authority, Shaun Abrahams, seen widely as weak and who has since been replaced. Other advocates who have faced the courts were pronounced unfit for office but are yet to be heard by Parliament.

By the time the President replaced officials in the prosecuting authority who are thought to have been ‘captured’, the kitty was bare. At the end of 2019, the Part Appropriation budget had to provide the authority with an extra R 1.3bn ($90bn) to help its dire situation.

Pat Sidley is a freelance journalist. She can be contacted on pattykate@icon.co.za