Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
5 May 2022

ANC and Ramaphosa’s choice on State Capture report findings — self and party or the good of the country?

It is not surprising that the publication of every volume of the report of the Commission of Inquiry into State Capture has invariably been followed by threats to have its findings and recommendations reviewed and set aside by the courts.

While any court review of the Zondo Commission findings and recommendations would be of limited legal significance, it could become an effective tool to discredit the report politically — especially if any part of such a review is successful.

Ultimately, what will matter most is whether the President and the ANC choose to put their own interest and that of their party above the interest of the country by ignoring the commission’s findings and refusing to implement its recommendations.

I can’t imagine that more than a few thousand South Africans have read the first four volumes of the report on State Capture (consisting of more than 3,200 pages) from cover to cover.

Those who have done so would know that the report paints a devastating picture of the mendacity, cowardice, greed and arrogance of many of the main culprits who have facilitated the institutionalisation of industrial-scale corruption inside the ANC, in government and in the private sector.

While the basic facts of this story are by now familiar to most South Africans, I am not sure that the full extent of the catastrophe can be fully comprehended without reading the entire report.

Reading through the latest instalment of the report, what struck me most was not the extent of the criminality recounted, but how often and how badly many of those implicated in corruption and other forms of wrongdoing lied to the commission.

The report also illustrates the corrosive impact that ANC hegemony has had on our public morality, and the self-serving moral cowardice this engendered in so many people who were in a position to do something about it, but turned a blind eye.

The description of the members of the captured Eskom board in Volume Three of Part Four of the report, captures the problem as follows:

I found all the board members who testified to be unimpressive witnesses. It seemed to me that each of them looked to see which way the wind was blowing and then went along with whoever was perceived to be the most powerful actor, or the actor who could do the individual board member the most harm if that actor sought vengeance for an act of perceived disloyalty or disobedience.

The two volumes of the report dealing with the “capture” of Eskom detail the many ways in which seemingly honest and diligent Eskom executives at first attempted to accommodate the unlawful instructions of those more powerful than themselves, including former president Jacob Zuma, former minister of public enterprises Lynne Brown and Gupta lieutenant Salim Essa.

When forced to choose between their job and their principles, many (but thankfully not all) at first seemed to believe they could remain on the right side of the law and of history while holding on to their jobs by bending the rules and going along with the criminal crowd without taking active part in criminal conduct. Inevitably their reputations were damaged in the process. (President Cyril Ramaphosa faces a similar problem after his term as deputy president and now as president of the ANC.)

Whatever its faults, the report has made it very difficult for those who defend Jacob Zuma, Cyril Ramaphosa and the entire ANC — and the rogues’ gallery of other crooks implicated in corruption and other acts of moral turpitude — to do so with reference to the relevant facts, partly because the report contains a minutely detailed account of the evidence uncovered by journalists, whistle-blowers, reluctant witnesses and commission investigators, often corroborated by witnesses, documents, cellphone records and leaked emails.

This is perhaps why several implicated individuals have not attempted to counter the factual findings made against them, but rather defended themselves by claiming that they will take the report on judicial review. (As far as I am aware, none of these threats has so far materialised.)

To understand why any review of the report — while potentially politically advantageous — would be of limited legal significance, it is necessary to recall that the findings and recommendations of commissions of inquiry are not legally binding on the president, the National Prosecuting Authority (NPA) or the courts.

The Constitutional Court confirmed this in 2000 in President of the RSA v South African Rugby Football Union.

The Constitutional Court later explained in Madigiwana v President of the Republic of South Africa that the purpose of a commission of inquiry is to “determine facts and to advise the president through the making of recommendations”. But commissions of inquiry could also serve a deeper public purpose, and serve as a mechanism to realise the constitutional values of accountability and transparency.

Of course, presidents often appoint commissions of inquiry to politically manage a crisis or some or other scandal, hoping that the appointment of a commission will convince voters that the government is taking the problem seriously, while limiting the scope of the commission’s work to avoid real accountability and transparency.

If the commission nevertheless makes damaging findings, the president is likely to ignore the report in the hope that voters would have forgotten about the whole thing. (This is what Jacob Zuma attempted to do when he appointed the Marikana Commission and the Arms Deal Commission — although in the latter case, the chair of the commission was so inept at covering up wrongdoing that his report was later reviewed and set aside by the high court.)

The State Capture Commission has so far recommended the criminal prosecution of more than 130 people implicated in wrongdoing. While the Hawks and the NPA probably do not have the financial resources, technical expertise and time to build winnable cases to prosecute all 130 people on the list, such prosecutions will have to be based on the evidence, which will not miraculously change or disappear if a court reviews and sets aside all or parts of the commission’s report.

It would therefore be misguided for implicated individuals to approach a court to review and set aside findings made against them, believing that this will necessarily protect them against criminal prosecution.

But judicial review of all or parts of the report could be politically advantageous. This is, first, because it may help to delay their removal from the Cabinet or provincial executives or their suspension/expulsion from the ANC or their removal from leadership positions within the organisation.

And as corrupt leaders have long attempted to judicialise political morality by invoking legal processes to avoid responsibility for their actions, a successful review of some parts of the report might make it more difficult for President Ramaphosa to implement those recommendations aimed at enhancing executive accountability, weakening the patronage networks on which the political power and influence of many ANC leaders depend, and professionalising the civil service and reducing the ability of connected elites to milk the tender system for personal or party political gain.

Of course, it is not entirely clear that President Ramaphosa will be willing to implement any of the commission’s recommendations if this will disadvantage him politically or the party he leads, or threaten the financial and other interests of his allies or potential allies inside and outside the party.

This raises the question of whether judicial review of the report (or parts of it) has any chance of success.

On the face of it, the attack most likely to succeed would be one directed at the lawfulness of the establishment of the commission. This is because the case law suggests that the power to appoint a commission of inquiry falls within the discretion of the president and that the Public Protector did not have the power to direct the president to appoint such a commission and to order that its chairperson be selected by the Chief Justice.

The high court rejected Zuma’s application, and I wrote at the time that the high court might have got it wrong (see here and here), although some other legal academics disagree with my view.

But there is a catch. A review of the report grounded in the principle of legality must be launched without undue delay based on an assessment of whether or not the delay is reasonable. (Reviews under the Promotion of the Administration of Justice Act must usually be launched within 180 days.)

Given that the commission has already completed its work, and three-and-a-half years have passed since the appointment of the commission, it is difficult to imagine a court finding that such a review had not been unreasonably delayed.

And based on its judgment in State Information Technology SOC Ltd v Gijima Holdings, it is highly improbable that the Constitutional Court would set aside the State Capture Commission Report because its appointment was unconstitutional, as this would not be just and equitable.

Judicial review of specific findings contained in the State Capture report are also unlikely to succeed. This is because in terms of the principle of legality, the applicant would have to show that the commission exceeded its mandate or that its findings were irrational. Rationality review should not be confused with an appeal on the merits and is an extremely high standard to meet.

It is not sufficient to convince a court that specific findings made by the commission were likely wrong, as a court cannot review and set aside parts of the report because it disagrees with the findings or reasoning and would have made different findings or would have assessed the credibility of witnesses differently. While I would not be surprised if the various volumes of the State Capture Commission Report contain mistakes, and while some of its conclusions could be debated, this would be neither here nor there — as long as parts of the report are not irrational.

Although one never knows what might arise at a later stage, I have not spotted anything in the 3,200 pages of the report currently available to suggest that parts of it are vulnerable to rationality review.

But this is not the end of the matter.

Those implicated in criminal conduct, abuse of power and dishonest and unethical behaviour would still hope to avoid any consequences for their conduct, either because the Hawks and NPA lack the resources and skills to build winnable cases against all those recommended for prosecution, or because the President and the ANC leadership refuse to implement most or all of the recommendations made by the commission, because they have chosen self and party over country.

2015 Constitutionally Speaking | website created by Idea in a Forest