15 November 2022

On 22 October 2022, President Ramaphosa released, publicly and to Parliament, the government’s response to the reports of the Zondo Commission. The Commission was established by way of a presidential proclamation, and given the enormity of the task of unravelling the extent of state capture and the damaging effect thereof on our democracy, a public response to the Commission’s findings and recommendations by the President was expected in the circumstances. During the handover of the final part of the reports, the President committed to submitting an implementation plan to Parliament, indicating how the government would respond to the findings and recommendations of the Commission.

The various recommendations made by the Commission are, by their nature, not binding on the President and he is under no obligation to accept them. However, the President, in his response, indicated that the majority of the recommendations addressed to the presidency and the executive had been accepted. The President declared that the response “constitutes an ethical, moral and institutional departure from the abuses” that have been revealed by the Commission and made clear that the Commission’s work together with the response and the commitment to its implementation is “a firm and clear indication of the primacy of the rule of law and a demonstration of our democratic system at work”.

Given the voluminous extent of the Commission’s reports, it was expected that the President’s response would have been detailed and comprehensive. Unfortunately, the response does not provide a substantive framework as to how the state capture ‘elephant’ would be eaten. Whilst the response considers the Zondo Commission’s recommendations and puts forward actions that will be taken to implement those recommendations aimed at the executive and the presidency, the proposed actions are vaguely framed without particular specificity.

The President’s response is silent on the role of the ANC, and its machinery – with the cadre deployment policy at the forefront – as a vehicle by which state capture was effected. Neither does the response adequately explain how those members of the executive who have been implicated in state capture will be dealt with. The dual role that President Ramaphosa inhabits – as head of State and head of the ANC – inevitably limits the force with which he, as president of the country, might address the ANC’s state capture proclivities. But, by steering clear of this, the President ran the risk of compromising his response to the findings and recommendations of the Zondo Commission, given that the Commission dedicated much of its reports to the enabling role of the ANC.

Despite these shortcomings, it would be remiss not to acknowledge the significance of the President’s response. The response indicates a commitment of intent to take the country beyond the state capture era. Some of the crucial elements in the President’s response that have the potential to breathe life into the Zondo Commission’s findings and recommendations are highlighted below, including the professionalisation of the public service, making permanent the Investigating Directorate, enhanced protection for whistleblowers and the possibility for real, meaningful electoral reform.

Reforming governance: the public service and state-owned enterprises

The Zondo Commission’s findings revealed that the strategic abuse of the public service was one of the key drivers of state capture. To this extent, the public service appointment and dismissal processes were frequently manipulated to ensure that specific individuals were strategically placed in executive positions at government departments, SOEs and other public enterprises. This facilitated political interference in the operations of these entities and the abuse of executive powers in procurement processes.

Political interference and the lack of transparency, compliance and accountability in, amongst other things, the appointment of boards and executives of SOEs, opened the doors for cadres like Matshela Koko, Brian Molefe, Anoj Singh and Tom Moyane to capture Eskom, Transnet and SARS. These strategic appointments facilitated state capture and led to the operational and financial breakdown of SOEs and public entities.

In his response, the President placed great emphasis on the need to reform governance by professionalising the public service and more stringently regulating the operations of SOEs and other public enterprises. In this regard, the President announced that Cabinet resolved to approve the National Framework towards the Implementation of Professionalisation of the Public Sector. The purpose of the framework is to establish a single public administration that will apply to all levels of government and SOEs. Its implementation will be overseen by the Director-General in the Presidency at national level and by the Directors-General in the offices of the premiers at provincial level.

The framework aims to crystalise the relationship between the political and administrative elements of public service. It is intended that the policy will advance ethical and capable governance and transform and professionalise public administration by ensuring consequence-based management and the appointment of qualified and competent individuals in positions of authority – essentially doing away with the ANC’s cadre deployment policy. The framework specifically focuses on introducing rigorous and formalised processes for recruitment, training, development, performance management and consequence management, for staff at all levels, particularly mid and senior-level managers.

The President also accepted the need to ensure that the appointment process of SOE board members is independent, transparent, merit-based and insulated from political manipulation. The framework also seeks to achieve this. The appointment process for SOE board members will be legislated through the State-Owned Enterprises Bill, which is expected to be finalised during the 2022/23 financial year.

The legislation will be followed by a guide that will delineate the intricacies necessary to ensure a transparent appointment process – including the public’s role in nominating suitable candidates for appointment. Once appointed, SOE board members will have to undergo the induction programme for boards of public entities through the National School of Government. Additionally, boards will have the sole discretion to appoint executive members, and the board members and government executives will be prohibited from playing any role in procurement processes.

Further legislative amendments to the Public Service Act, the Public Administration Management Act, the Public Finance Management Act and the introduction of the Public Procurement Bill have been introduced with the expressed aim of advancing the public service reform agenda.

The Investigating Directorate is here to stay

During the state capture era, a deliberate effort was made to weaken and dismantle law enforcement agencies like the NPA and the Scorpions. By weakening the capability of these agencies, the state capture enablers were able to shield and sustain their corrupt and criminal acts.

The process of resurrecting and stabilising law enforcement agencies has seen the establishment of the Investigating Directorate (ID) as a temporary corruption fighting unit in the Office of the National Director of Public Prosecutions in 2019. The ID’s existence vests in section 7 of the National Prosecuting Authority Act, which empowers the President to establish an investigating directorate by way of a proclamation.

The establishment of the ID has meaningfully contributed to improving the stature of the NPA and its response to state capture has been noteworthy – thus far the ID has enrolled more than 20 state capture-related criminal cases, charged 65 accused persons and obtained freezing orders to the value of R5.5 billion.

To continue combatting state capture, the President announced that the ID would be established as a permanent entity within the NPA. The ID’s investigators will also be armed with the requisite criminal investigatory powers provided for in the Criminal Procedure Act. It remains unclear how the permanent establishment of the ID would be facilitated to ensure its lasting existence and by when this process will be finalised.

Power to the whistleblowers

Whistleblowers played a fundamental role in unearthing the extent of state capture and they continue to play an important role in exposing corruption on a daily basis. Yet, whistleblowers are inadequately protected and are often retaliated against, victimised, abused or killed.

The Zondo Commission’s recommendations addressed to the enhancement of the protection of whistleblowers include proposed legislative amendments to offer whistleblowers immunity from criminal and civil action; to incentivise whistleblowing by awarding whistleblowers portions of monies recovered and to enhance the protection afforded to whistleblowers by aligning the existing legislation with the standards prescribed by the United Nations Convention against Corruption.

To conform with the international legal standard, whistleblowers must be adequately protected against retaliation or intimidation. This would be achieved by adopting measures to ensure their physical protection – which includes the responsibility to relocate whistleblowers, when needed, and to protect their identities and whereabouts – and to provide evidentiary rules that would ensure their safety when giving testimony.

The President emphasised the critical role of whistleblowers in eradicating corruption and fraud and the need to protect whistleblowers at all costs. The President indicated that the Department of Justice is in the process of reviewing the Protected Disclosures Act and the Witness Protection Act, to determine whether the legislation is in line with the Commission’s recommendations and South Africa’s international legal obligations. This process will be concluded by April 2023.

The call for electoral reform

Electoral reform has been on the cards since 2020 when the Constitutional Court handed down its judgment in New Nation, which afforded independent candidates the right to contest national elections. Parliament has since initiated a process to amend the existing legislation that regulates the electoral system.

Civil society at large, as well as the majority of the Minister of Home Affairs’ ministerial advisory committee, called for a complete overhaul of the current electoral system by the adoption of a mixed-member proportional representation system – which would advance accountability between the National Assembly and the electorate. The Zondo Commission echoed this.

Thus far, government has simply ignored the majority recommendation of the advisory committee and the calls by civil society. The National Assembly recently adopted the Electoral Amendment Bill which effects minimal reform and does not address the lack of political accountability that exists under the current electoral system. The Bill is currently before the National Council of Provinces and it is expected to land on the President’s desk by the end of November.

In his response, the President acknowledged the Commission’s recommendation for the adoption of an MMP system that would advance political accountability. The President indicated that he would wait to receive the Bill to determine whether it satisfies the Commission’s concerns, before committing to any further steps. The Bill, in its current form, does nothing to address the Commission’s concerns and, if the President sticks to his promise, the President should reject the Bill and refer it back to Parliament for further deliberation.

By Jos Venter, Legal Researcher, Helen Suzman Foundation.