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The impact of Amendment of Section 11 of the Regulations Governing the State Capture Inquiry.

On 28 July, the terms of Section 11 of the Regulations governing the State Capture Inquiry, widely referred to as the Zondo Commission, were amended in terms of a Government Gazette signed by State President Cyril Ramaposa. Simplistically the amendment had a twofold effect. Firstly investigators and evidence leaders at the Inquiry are permitted to share information and documents gathered over the duration of the hearings with the Directorate for Priority Crime Investigation (Hawks) and National Prosecuting Authority (NPA) including the recently established Investigative Directorate (ID) unit in the National Prosecuting Authority headed by Hermione Cronje. This information would include, by way of example, bank records, cell phone records, emails and documents (including official documents) which are substantial, given the duration and painstaking procedures and processes followed by the Zondo Commission since it commenced on 21 August 2018. Secondly, the officials (principally the investigators and evidence leaders referred to above) at the Inquiry can now be co-opted and employed by the NPA, Hawks and ID once the Inquiry has completed its mandate and the required reports and findings are delivered. In effect, this provides the NPA and Hawks with the foundation fo accelerated access to the basis of a program to commence legal action and prosecution against those implicated in wrongdoing during the process of the Inquiry. Possibly, it is best to note that any person who deposed before the Commission and incriminated himself/herself retains the right at prosecution to remain silent and their testimony before the Commission cannot be adduced as evidence of guilt.

Having referred to the amendment to Section 11 it is necessary to look at the impact that this has had. One of the most publicised actions to date has been the arrest of Edwin Sodi, who together with six others (including former Free State Housing Department Head Nthimotse Mokhesi and former National Human Settlements Director-General Thabane Zulu), who have been charged with fraud and corruption in relation to the R250m Free State asbestos contract which was awarded to Sodi’s company Blackhead Consulting through an allegedly illegal unsolicited bid. Subsequently it is alleged millions of Rands were channeled to politically connected individuals and officials who were involved in the contract. The asbestos contract awarded to Blackhead Consulting was extended to include Gauteng and further corrupt activity is alleged to have occurred on the extended contract. Sodi has been released on R500 000 bail and the NPA’s Assets Forfeiture Unit has frozen the assets of Sodi, Zulu and Mokhesi as well as others charged. The arrest and charging of Sodi attracted adverse comment from Economic Freedom Fighters Commander-in-Chief Julius Malema who expressed the opinion that the “Hollywood style” process was unnecessary.

Equally publicised has been the arrest of Deputy National Police Commissioner for Human Resources Bonang Mgwenya for her alleged role in relating to a R200 million tender fraud for South African Police vehicle emergency warning equipment. Mgwenya has been charged with corruption, theft and money laundering and released on R20 000 bail. Charges have been brought against twelve others including former South African Police Commissioner Khomotso Phahlane in the same case. Mgwenya has since been placed on suspension by National Police Commissioner Khehla Sitole. ID Head Hermione Cronje, at the time of Mgwenya being charged, pointed to this as part of the process to clean up law enforcement so that those who serve and protect society are indeed doing so. Details of corruption alleged to have involved numerous political figures was given over a protracted period before the Commission by the former Chief

Operations Officer of the now insolvent Bosasa company, Angelo Agrizzi. Agrizzi was previously charged with fraud, money laundering, corruption and conspiracy to commit fraud together with former Bosasa executives Patrick Gillingham, Andries van Tonder and former Correctional Services Commissioner Lina Mti, all of whom were on bail.

On 13 October 2020 Agrizzi was charged together with former African National Congress Member of Parliament Vincent Smith. At the time of the alleged offences Smith was Chairperson of the Parliamentary Portfolio Committee on Correctional Services and allegedly accepted corrupt inducements (on a number of occasions) to overlook the irregular disbursement of security tenders to Bosasa by the Department of Correctional Services. Smith applied for and received bail at a previous hearing. Agrizzi applied for bail at the hearing on 13 October. At the time of his appearance Agrizzi carried an oxygen cylinder and, despite proof of illness, was refused bail after evidence was presented of undeclared foreign assets and a foreign passport held by Agrizzi was submitted by the State indicating a strong possibility that Agrizzi may flee South Africa. After spending one night in jail, Agrizzi was transferred by the

Department of Correctional Services to a State hospital and subsequently was transferred to a private hospital for specialist treatment.

The amendment to Section 11 appears central to former State President Jacob Zuma resisting making further appearances before the Zondo Commission. Historically Zuma, in his official capacity, established the State Capture Inquiry via promulgation in January 2018 and appointed Deputy Chief Justice Raymond Zondo to chair the Enquiry. At the time Zuma stated that he had faith in the judiciary and their ability to execute their tasks fairly, impartiality and independently and on a number of occasions that he would cooperate with the Commission. Additionally, former president Zuma recommended Justice Zondo for the position of Deputy Chief Justice in 2017. Recently Zuma did not comply with instruction of the Commission to appear before it, citing time pressures consequent to his preparation for a criminal matter and previously due to health issues. Zuma then advised that he would not appear before the Commission unless Justice Zondo recused himself, alleging personal bias on the part of Zondo in respect of historical associations. The recusal application was unsuccessful. The evidence leader of the Commission on 9 October 2020 applied for and received a subpoena requiring that Zuma appear before the Commission on 16 November. Looking forward, the appearance of former President Zuma and the line of investigation taken by the evidence leaders will be of interest.

At this stage it should be noted that the Investigative Directorate unit in the National Prosecuting Authority is effectively a cooperative involving the secondment of a number of senior Hawks investigators with their associated case dockets of high-profile investigations to the ID and falling under Hermione Cronje’s role as Head of the ID. This is in line with the establishment and role of the ID. Initially this cooperative has had success and it is anticipated that this level of response is likely to be ongoing and to escalate over time.

The likelihood of the prosecution of high profile and politically connected individuals facing prosecution on corruption charges seems likely but this must be balanced against the possibility of political manoeuvring taking place as a protective measure on an individual or collective basis. The availability of evidence from the Commission hearings to the authorities, however, increases the likelihood of prosecutions being brought before the courts in the short to medium term.