The Zondo Commission into State Capture has resumed with renewed vigour and a promise to streamline proceedings in the ten months left of its mandate. At the re-opening of the commission, Judge Raymond Zondo indicated that he was going to ask members of Parliament what they did to prevent state capture and there was a warning to corrupt officials that they should stop putting their careers first. But what South Africans want to know is: when are we going to see people in orange onesies and when are those who are toying with the commission going to be held to account? Constitutional law expert Professor Pierre de Vos and journalist and editor Max du Preez, known to be like pit bull when it comes to uncovering the truth, told the BizNews Midweek Catchup webinar that there is enough evidence to prosecute some big fish for state capture. They also weigh in on how long they think Public Protector Busisiwe Mkhwebane will remain her position. – Linda van Tilburg
The Zondo Commission into State Capture may have dug up truths of how those in power abused state resources since it commenced in August 2018, but there are doubts whether the evidence that Mr Justice Raymond Zondo unearths could actually lead to successful prosecutions.Â
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Judging from how former President Jacob Zuma has managed to avoid being tried for the allegation that he received a bribe from a French company for the arms deal for a decade, South Africans are not holding their collective breaths in anticipation of the first prosecution of a big fish for state capture.Â
But constitutional expert Pierre de Vos and political analyst Max du Preez told the BizNews Midweek Catch-up webinar that they believed that the Zondo Commission will lead to prosecutions and have named the ANC official they believe is most likely to be first in line.
Prof De Vos said the problems with the Hawks is that they do not have the skills or the money to go after everybody involved in state capture. “If they have to do that, it will cost billions and billions of rands because those people who stole the money, have money to defend themselves and they will keep the best lawyers.”
If you want to be a little bit optimistic, you can say that the Zondo Commission is finding some evidence and so if we can get the Hawks to do their job, at least some of that evidence could be used to prosecute one or more of the big guys. It might not be a complete waste if that is the route they take, because the evidence that is uncovered before Zondo and the prosecuting authority can use that as a starting point for further investigation.
The problem is that with the really big fish, the evidence against them is not as clear. It’s not as solid because they use middlemen. Jacob Zuma always got somebody else. They never wrote anything down, it’s always a phone call or whatever and so it is not so easy. The way that they work, is that it’s usually one level down who do the dirty work and so that makes it more difficult for anybody of real significance to be prosecuted. If I had to put my money on anyone, it would be Ace Magashule (ANC Secretary-General).
I see no world where Ace Magashule will not be prosecuted. I’m sure if they really refused public prosecution, Gerrie Nel will pull something out of the bag. The prima facia evidence against Ace Magashule is just too big, there are lots and lots of stories. I think the evidence against Mosebenzi Zwane (former Mineral Resources Minister) is overwhelming because it was blatant; he was personally involved in procuring stuff for the Guptas.Â
Then you get to Bosasa, there’s some low hanging fruit. I would say Nomvula Mokonyane (former Minister of Environmental Affairs), people who received money. You remember that Schabir Shaik got 15 years for some of this stuff and some of this is similar. Mokonyane talked money; there is no doubt about it in the form packets of braai chicken. Then the big question is; will Julius Malema and Floyd Shivambu be prosecuted. Again, there is a lot of prima facia evidence strengthened by the fact that Shivambu and Malema stubbornly resist suing Pauli van Wyk for defamation. I have seen some of that documentation. The Daily Maverick did not publish those things without really being on solid ground.
So, I think we will see some, we are already seeing the VBS people, we are seeing Transnet people, there will have to be some Eskom people, Denel people, some of the information is strong enough. Some of the big guys will get away; but the political impact of prosecuting some-one like Ace Magashule and Mosebenzi Zwane will be massive. I think we can rest assured that they will try and use the same tactics as Zuma who has been avoiding his court date for a decade.
Shamila Batohi said last week, she said, we are aware of the danger of people just dragging these court cases out and we are looking at ways of preventing it. On the Eskom and Transnet front; even from the investigations in Parliament, people like Anoj Singh and Brian Molefe. There was an awful lot of evidence of their corruption. When you are talking of that kind of corruption, it is like Steinhoff. I can’t see Steinhoff going to court in the next 10 years because it’s highly specialised. You don’t get a detective to go and ask a few people something and take a few fingerprints. You need real serious expertise to decipher these cases. That may take years. Steinhoff, as far as I know, they’re making no progress with Steinhoff. They hope to rely on the Germans and the Americans to do it for them. It’s just simply too complex for them; that is the problem with some of these cases.Â
The National Director of Public Prosecutions admitted at the end of June that South Africa was not winning the fight against corruption and said the problem was a lack of investigators and prosecutors, but could the Special Investigating Unit be President Cyril Ramaphosa ‘secret weapon’ or perhaps  private prosecutors like Gerrie Nel be a catalyst for action by the government?
I would say people like Anoj Singh or Brian Molefe, again if they don’t get to them; people must know that I am no Agriforum farm; I am a very enthusiastic critic, but I’m beginning to wonder if this idea of having someone like Gerrie Nel hovering somewhere, saying if you don’t prosecute, we will. If that wasn’t a bit of a carrot and stick thing that will work. The other trick that they wanted to pull earlier, is to use the Special Investigations Unit at SARS for the three, four or five extremely wealthy billionaires in the Zuma camp involved in all those things. We know that their tax affairs are not in order because we can actually go and look at that; we have the capacity. That is going to be the strategy; the old idea if you can’t get to the big guns; get them on taxes. It was one of the reasons why it was dubbed the rogue unit and a massive propaganda campaign was launched against it, that lasted  for years. In fact, it was only a couple of weeks ago, I think, that we saw the final nail in the coffin of the rogue unit story. But that was the other possibility. There is no such specialist investigative talent at present at SARS. I criticised them about 18 months ago and then they came to see me and took strong exception and said, listen, we are the only clean guys around. We were never captured.
It is a unit that is acting at the behest of the president, so they can only investigate if the president issues the proclamation. So, on paper, this could be Cyril’s secret weapon. I think they might be right that they are clean. But the problem is, once again, it’s a bit like the Zondo Commission. Once they make the report; it is supposed to  go to the prosecuting authority who is supposed to prosecute. And then finally, we don’t always hear the report because Cyril gets it and sometimes doesn’t make it public. Zuma didn’t always make the reports public. And secondly, once the report has been received; it gathers dust and nobody does anything about it.
For me, what is a little bit strange, with these kinds of cases, specially the more complex cases; what prosecutors often do; they make a plea bargain with one of the parties involved. So, to go after the bigger fish, they make a plea bargain with one of the underlings and that person will then testify against the other one.
So, you basically let somebody off; then they truthfully testify. The judge can then confirm the plea bargain. We haven’t seen that. There was a story that one of the people in the VBS case; they had negotiated a plea bargain, but in the end, he didn’t abscond; he didn’t break ranks. And so, for me, the interesting thing is that all these people seem for reasons. Either they may not be scared of the NPA or for reasons to do with loyalty or fear from consequences from their own side; there have not been any people who jumped ship to assist the prosecuting authority in exchange for their own freedom, which is quite a strange phenomenon; that is not so easy to explain.
The previous Public Protector, Thuli Madonsela, was one of the triggers for the Zondo Commission of Inquiry, but her successor Busisiwe Mkhwebane appear to be on a different mission, with Public Enterprises Minister, Pravin Gordhan and President Ramaphosa in her sights. She has been dealt several legal blows. The latest was when the Supreme Court of Appeal dismissed Mkhwebane’s leave to appeal the 2019 judgement that ruled that her ‘Vrede Estina Dairy Farm‘ report was unconstitutional and invalid. There have been calls from many quarters to have her removed, but only Parliament can end her term. Max du Preez says Parliament’s inability to sit because of the Covid-19 pandemic has given her more time in office.
We had Thuli Madonsela, she was a saint and she was one of the triggers for the end of the state capture era. We never considered that her replacement might be a problem rather than the solution. She quickly became a proxy for the Magashule faction, blatantly, absolutely blatantly so, not only in her work, but on social media, the parties she attended, political statements she was making. She was hook, line and sinker in the RET (Radical Economic Transformation) faction. She started, as we all know, chasing after Ramaphosa and Pravin Gordhan and she lost case after case. She lost another one again last week, humiliatingly so. Nobody in public life had been slandered like her in the higher courts of our land in the history of South Africa. Yet there she is, because she has the backing of the EFF and of the Magashule faction. Cyril Ramaphosa was bargaining that the process to impeach her was going to be in Parliament in February and he had the ANC caucus lined up, and it was going to be done by June-July, and she would be kicked out, but she’s still very much there because parliament could not sit because of Covid- 19.
Clearly from a legal perspective, there’s more than enough to get rid of her. There is protection for her and rightly so, because the public protector needs to be protected from rogue elements wanting to remove you just because you are making uncomfortable decisions. So, there need to be grounds for removal and there clearly are huge grounds.
The case from the constitutional court downwards says she’s dishonest and incompetent. She’s a liar, she lied to the court. This is a slam dunk. The big problem is there needs to be 60%, two-thirds of the members of the National Assembly need to support this. You basically need the whole ANC caucus to support it. She is probably going to use the Zuma impeachment judgement to say that this vote needs to be secret. I don’t know what’s going to happen, but it can turn interesting from the perspective of internal ANC politics, if there is a secret vote to have her removed and some ANC-members vote against the removal.
