THE LAST WORD

THE FINAL ZONDO REPORT

The final report of what has commonly become known as ‘the Zondo Commission’ (The Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State) was handed to State President Cyril Ramaphosa on 22 June 2022.

By Peter Bagshawe.

This was the culmination of four years of hearings, previous reports, extensions of the Commission term, sidebar proceedings in various reports, and a painstaking sifting and evaluation of evidence led. Current Chief Justice Raymond Zondo, who must be commended for the undertaking as Commission Chair, presented an evaluation of political, public, private, State and Ministerial actions within the scope of the Commission that is unique. The Report is a rich source of information and, despite criticism of the editing as evidenced by stylistic differences indicating multiple writers, cannot be reviewed here.

Following on from the final report being delivered, two opinion pieces were published. In the Daily Maverick “Thuli Madonsela: South Africans should question whether State Capture is really over” gave perspective to the Commission and interestingly, posits that the scope of the Commission was too widely cast. Nevertheless, the Commission has concluded its business and the Report, recommendations and findings are now available. Writing in ANC Today, Pule Mabe, the African National Congress’ National Spokesperson and Head of the Department of Information and Publicity, gives a perspective on the Commission and the party’s support of and interaction with the Commission, as well as comments on the action of members of the African National Congress. Arising from these opposing stances, two areas of the Report are of interest: firstly the question of cadre deployment, which links into executive appointments and action/inaction and, secondly, the role and actions of the State Security Agency (SSA) arising from cadre deployment.

Cadre deployment is not an area of investigation that is obvious within the Commission’s initial scope as of manifest importance. However, on analysis, it is central to the success of several actions undertaken that directly gave rise to the success of State Capture. Of interest is the finding of the Commission, after review, that cadre deployment (and the longstanding Deployment Committee’s actions) was both illegal and unconstitutional. In order to achieve a balanced political-administrative interface, the Constitution requires, in summary, a professional and ethical public administration which is efficient, economic, and effective in its utilisation of resources, and acts in a manner that is impartial, fair, equitable and without bias. Central to this would be fit-forpurpose departments with fit-forpurpose staffing operating within the scope of their mandates. Here the core tenets of equality in the treatment of candidates, transparency, accountability, and fairness would be essential. The existence of the Deployment Committee and the manner of its operation are contrary to each of these. A former Public Enterprises Minister gave evidence before the Commission that the Deployment Committee made decisions which led to the inability to appoint fit-for-purpose candidates at Transnet.

Evidence given by African National Congress Chairperson Gwede Mantashe and President Ramaphosa was to the effect that the Deployment Committee did not have the power to decide on appointments, could only make recommendations and could not issue instructions. This was not accepted by the Commission Chairperson who, to the contrary, found that decisions taken within the African National Congress, and failure to comply, carried the risk of censure. Party members are, within Government, the appointing authorities and simultaneously party members who are bound by party decisions which gave impetus to compliance with the output of the Deployment Committee. Again, contrary to evidence given, Zondo found that ‘recommendations’ were made on the appointment of judges and, amongst others, Cabinet and civil service appointments, provincial premiers, legislatures, local government, and parastatals. In a number of instances, these were contrary to the best interests of the State and public. It is telling that then-Deputy President Ramaphosa was the Chair of the Deployment Committee between 2012 and 2017, and the Report notes that responsibility for not having stemmed the excesses of the Committee should have been acknowledged by him; however the response was more to emphasise the importance of cadre deployment, which is seen, within the party, as an additional screening mechanism. The results do, however, speak for themselves and show the weakness inherent in the African National Congress using a model based on internal agreement for decisions taken.

Turning to the State Security Agency Chairperson, Zondo stated “The evidence suggests that this commission may not, in fact, have been necessary if the SSA had detected, fully investigated and countered State Capture as a threat to our constitutional order when the symptoms of State Capture first appeared.” This is an indication of the pivotal role that the State Security Agency is entrusted with and constitutionally required to perform. Evidence led of the collapse of the Agency in state capture goes back to 2011 when then Minister of State Security, Siyabonga Cwele and then President Zuma, attempted to influence Director-General Jeff Maqetuka, Mo Shaik and Gibson C, the respective heads of the Domestic and Foreign Services, into closing the investigation into the activities of the Gupta brothers. Shaik and Maqetuka left the State Security Agency after their rejection of the so-called ‘Mdludli Report.’

In 2009, Zuma had issued an unconstitutional proclamation, collapsing State Security into a single entity and, bizarrely, members were required to swear an oath of allegiance to Zuma as opposed to the earlier oath of allegiance to the Constitution and the State Security Agency. This was the beginning of a shift from national security to state security, with the State Security Agency becoming involved in the activities of the African National Congress. It is noteworthy that at this stage the Presidential Security Support Services became one of the largest costs to the State Security Agency budget. After the appointment of Cyril Ramaphosa as State President, he chose to continue with the appointment of both former State Security Minister David Mahlobo and former National Security Director-General Arthur Fraser after adverse findings made by the High-Level Review Panel appointed by President Ramaphosa, which was chaired by National Security Adviser Sydney Mufamadi in respect of, in particular, Mahlobo. This continuation of their tenure was in line with the precepts of cadre deployment.

As was the case with former Minister Cwele, Mahlobo engaged in operational matters and irregular recruitment and appointment of people into the State Security Agency. Evidence was led of Mahlobo’s involvement in Project Commitment, which was amongst other purposes, a channel used for irregular payments, over a period of some two years of between R2.5 million and R4.5 million per month to then President Zuma. Evidence was adduced of Fraser setting up an illegal, clandestine parallel intelligence network known as the Principal Agent Network that spent some R1.5 billion on unauthorised operations, including the purchase of properties, vehicles, appointment of unvetted persons and irregular payments of money to individuals, including family members. Director-General of the Chief Directorate of Special Operations, Thulani Dlomo was found to have acted irregularly in respect of vetting and vetting procedures, hiring of operators as well as drawing weapons from the Agency armoury, and allocation of weapons and ammunition to operations (some of which presently remain unaccounted for) for use by unqualified people. The illegal drawing of weapons from the armoury is an offence in terms of the Firearms Control Act. The Commission has recommended that law enforcement agencies investigate bringing criminal charges against Fraser in respect of the Principal Agent Network programme and other matters and Mahlobo and Dlomo with regard to State Security Agency money irregularly received and disbursed.

State capture was a scourge and the implementation and prosecution in line with Commission recommendations is an imperative to normalise governance.

PETER BAGSHAWE holds a Bachelor of Law degree from the former University of Rhodesia and a Bachelor of Laws degree from the University of the Witwatersrand.