More action required to prevent repeat of state capture

The first anniversary of the submission of the Zondo commission report to President Cyril Ramaphosa has been cause for much reflection among South Africans on the country’s descent into large-scale looting. It is also a moment to reflect on the many battles fought to try to curb its descent and examine what has been done to prevent a repeat of such a downward spiral.

In his keynote address at a Human Sciences Research Council (HSRC) colloquium to mark the anniversary, chief justice Raymond Zondo cautioned that South Africa has not changed substantially enough to assure citizens state capture will not recur or that corruption is being brought under control. He was particularly stinging, with good reason, in his criticism of parliament, saying it enabled state capture in the Zuma era and “I have seen nothing that has changed” as far as the legislature is concerned. He went so far as to suggest it is unwilling or unable to deal with corruption and if another state capture project emerged, our elected representatives will be unable “protect the people’s interests”.

Unfortunately, many commentators interpreted Zondo’s comment to mean nothing has been done about corruption since the commission’s report. While attendees at the colloquium seemed to agree not enough has been done to address the problems highlighted by the report or its recommendations, “nothing” is not the correct word in this context. As the HSRC’s Gary Pienaar and Corruption Watch’s Karam Singh pointed out in their presentations, a lot has been achieved, though we should be demanding more.

Even as we justifiably point out that certain senior politicians implicated in state capture retain their positions in government, and that there has been no progress in a number of areas the commission highlighted, we have to admit that there has been tangible progress on several levels, according to Pienaar and Singh. This includes financial management and audit reforms in the public sector and state-owned enterprises; lifestyle audits for people in public administration; the process of amendments to a number of laws, including the Public Administration Management Amendment Bill, Public Service Amendment Bill and Public Service Commission Amendment Bill; various public-sector reforms; development of a tracking mechanism for disciplinary measures against delinquent SOE employees; parliament considering models by which it can exercise oversight over the president and presidency; huge increases in fines for errant auditors; and a decision to overhaul public procurement. 

In addition, law-enforcement agencies have been granted freezing or preservation orders amounting to R12.9bn, of which R4bn has been recovered, and Sars has collected almost R5bn in unpaid taxes as a result of the Zondo commission.

The National Prosecuting Authority (NPA) is investigating 34 cases related to state capture arising from the commission and, from these, 10 civil matters are in process. About half a dozen cases have been concluded, with culprits receiving sentences ranging from eight to 15 years.

Of course, a large number of the commission’s 350 recommendations have not been addressed or considered, and as Zondo and other speakers at the colloquium warned, every delay in implementing them facilitates continued corruption and threatens another round of state capture. This raises the question: is there will in the ruling party, government and parliament to address these?

We take comfort in the role that the judiciary played during the state capture years.

Zondo’s broadside against parliament related to one recommendation in particular, one he believes might be the most important preventive measure: the establishment of an independent body to deal with corruption. In justifying this recommendation, he said it was necessary because parliament can't be trusted to do the job.

Zondo is widely regarded as beyond reproach in terms of his integrity and rigour in dealing with his commission. That he was subsequently appointed chief justice should give South Africans some comfort. We also take comfort in the role the judiciary played during the state capture years. It is true that without that branch of the state remaining resolute, we might still be mired in a well-organised state capture project.

We should remember, however, that judges and judiciaries are not inherently good and are not, by nature, defenders of the people. Our judiciary was a stalwart against state capture because of the individuals who refused to bend to political pressure and illicit financial incentives. Yet if the case of former judge Nkola Motata and the sanction of the Judicial Service Commission handed to former chief justice Mogoeng Mogoeng are an indication, South Africans need to be as wary of the judiciary as we should be of the other two branches of the state: the executive and legislature. International experience, including in established democracies, of judiciaries being subject to political pressure and political agendas should also make us wary of blindly trusting the judiciary. Can we forget that the US supreme court is always a political football kicked around between the two major parties?

We need also to remember that while the judiciary did serve as the final unwavering pillar against state capture, other sectors of society were critical in exposing it, keeping it in the public eye, mobilising against it and ensuring it was brought before the judiciary. This group included political formations; businesses; civil society organisations, including research institutes; churches and foundations; and various media and investigative journalists. Other media, including the public broadcaster, helped enable the capture project. Though we sometimes prefer not to remember this, there was a period, perhaps too brief and too late, when parliament too, including ANC members, refused to give in to the pressure of the executive and the Presidency.

The lesson is, in the words of Zondo: “The people must take their destiny in their hands.” To protect the rights and interests of our people, there is no better alternative than an active, fearless, even rebellious, citizenry.

* Jeenah is a senior researcher at the Mapungubwe Institute for Strategic Reflection (Mistra)