The President’s final accounting to the Zondo Commission

Building on the concessions, the mea culpas and the various benefits of that exact science called “hindsight”, it is now possible for the evidence leaders at the State Capture Commission to ask the hard questions when President Ramaphosa reappears wearing his Head of State hat.

SA has signed up for the UN Sustainable Development Goals. This laudable action binds the state to put in place the various strategies to end poverty, hunger and need in the world. UN SDG#16 in particular envisages strong institutions of government.

Not a damaging festival of cadre deployment. Instead, honest to goodness merit-based appointees in government who are dedicated to carrying out the lawful policies of the government of the day in a manner that respects the values and principles applicable to the public administration and implements the constitutional imperatives for open, accountable and responsive governance under the rule of law.

In this way a state that truly respects, protects, promotes and fulfils the rights guaranteed to all in the Bill of Rights will emerge from the wreckage left behind by the departing cadres who have so unsuitably been deployed in the state to advance the national democratic revolution of the ANC instead of doing their constitutional duties.

Cyril Ramaphosa has been nominally in charge since December 2017 when he won a fiercely contested battle for leadership of the ANC. He has been president of the country since 2018. The attempted capture of the state and the extensiveness of the looting under his predecessor have been common knowledge since well before his ascent to leadership. Indeed, he was deputy president of both the country and the ANC during the second term of the Zuma presidency.

No looters, no capturers of the state and no kleptocrats have been brought to book by the limping criminal justice administration since Ramaphosa’s ascent to leadership. The loot of state capture remains unrecovered. The UK and USA are doing more to rein in the excesses of the Guptas than has been done in SA.

Paralysis, fear, lack of suitable expertise and the lack of the political will required to counter corruption are in evidence in all corners of the state and the state-owned enterprises.

The president needs to be quizzed on what he actually plans to do to correct the weaknesses in the criminal justice administration that have emboldened the covidpreneurs during his presidency.

A vague attempt to recover some loot by Eskom against Brian Molefe and others was so amateurishly pleaded that the case is now bogged down in exceptions that will procedurally delay it and which will doubtless necessitate amendments too.

At least Eskom tried, which is more than can be said for most other looted entities. There is more than a trillion rand potentially involved, an amount that could be put to good use in the delivery of services by the state and for the purpose of reducing the excessive burden of state debt.

SA is also a signatory to the UN Convention against Corruption. It has been domesticated in our law and obliges the state to keep in place adequately independent anti-corruption machinery of state.

The SA state is also obliged to comply with the judgments of the Constitutional Court in the Glenister litigation. The criteria for a dedicated anti-corruption body are laid down in binding fashion by that court. Specialised and properly trained personnel who are independent of the executive and resourced in guaranteed fashion are supposed to enjoy secure tenure of office as they go about dealing with the corrupt.

Too little has been done on Ramaphosa’s watch to comply with the judgments and with the international obligations of the state. The urgency of the matter (stressed by the NEC of the ANC in its 4 August 2020 resolution) seems to have passed his cabinet by.

Indeed, there is no evidence that the call by the NEC to establish an independent, stand alone single entity with multi-disciplinary skills that specializes in “dealing with” the corrupt has been acted on by the president or his cabinet.

Calls by the opposition and civil society for the creation of a new Chapter Nine entity, going back to 2012 and repeated regularly since then drew the extra-ordinary response from Ramaphosa that the idea (around since 2012) is “refreshing” and that he would “mull it over”.

By SONA in February 2021 he could get no further than a statutory body answerable to parliament, not the executive. This is an inadequate response, the Scorpions were a statutory body and they were summarily closed down by the will of a simple majority in parliament. Had they been a chapter nine body this step would not have worked and the whole state capture project would have failed in the face of tenacious and independent work by the Scorpions.

The president needs to be quizzed pertinaciously on the failure of his government to take urgent remedial steps to address the weaknesses in the criminal justice administration brought about by the Zuma state capture project. He needs to commit to a constitutionally compliant way out of the mess left behind by the capture of the SAPS and NPA.

Ramaphosa’s defence of cadre deployment also needs to be revisited as a manifestation of the unwillingness of government to comply with section 195 of the Constitution. There has been a signal failure to comply with the sub-section that reads: “Good human-resource management and career development practices, to maximise human potential, must be cultivated”.

Cadre development and deployment has had the effect of bringing SOEs to their knees and has crippled service delivery by the state. Preferring cadres to non-cadres is a form of unfair discrimination and is also an unfair labour practice.

The plans to terminate this illegal and unconstitutional practice need to be discussed fully with the president in the hearings in which he participates. The constitutional dispensation does not permit the nuances for which he pleaded when giving his initial evidence on behalf of the ANC.

The original sin of the ANC was not to negotiate in good faith for the creation of the new constitutional order in SA. Sleight of hand led to the deal, regarded in the ANC as a beach-head toward its national democratic revolution, while other negotiating parties regarded it as the binding supreme law that the Constitution is expressed to be in its own provisions.

Paying lip-service to the rule of law and the Constitution while pursuing the aims and objectives of the NDR is at the root of the malaise in the country.

These issues need to be ventilated if the Zondo Commission’s recommendations are to have the focus required to restore SA as a constitutional democracy rather than a country on the downhill spiral towards the NDR’s hegemonic control of all the levers of power in society.

Examples of the pernicious features of ANC policies and practices that are inconsistent with the Constitution abound. Inconsistency with the Constitution renders the conduct and laws involved invalid.

Here are a few of the more glaring areas that need to be explored by the evidence leaders in the context of getting to the bottom of state capture and healing the wounds it has caused in SA by making suitable recommendations to end the malaise of corruption.

A heavy burden rests upon the shoulders of the evidence leaders in the Zondo Commission hearings. It is vital to get to the bottom of the inconsistency of the NDR with the Constitution. Only in this way can the fertile breeding grounds of future state capture projects be neutralised by draining the swamp in which the deeply and darkly unconstitutional NDR is bred.

Paul Hoffman SC is a director of Accountability Now.