Durban — With clear indications that the State Capture Commission report will be the subject of court reviews as some of those implicated have raised concerns regarding the document, law professor Isaac Shai said “the commission’s findings were not binding as they merely constituted an opinion”.
Speaking to the Daily News, Shai, an associate professor of law at Unisa, weighed in on the announcement by the Jacob Zuma Foundation that it intended to challenge Chief Justice Raymond Zondo’s report due to the untested adverse findings against former president Zuma and others.
Asked what the implications of challenging the report would be, and whether he believed the commission had done thorough work in investigating the alleged state capture, Shai said the commission failed to describe the subject of its investigation.
“To the extent that it focused on the conduct of public affairs, it incorrectly conflated government and state. The state is a much broader concept than government. Conceptual precision requires that we deconstruct what the commission parades as the state. Linked to this is the notion of capture. It is theoretically and practically impossible to capture without hegemony.”
He added: “The real question that ought to ‘capture’ us is who in South Africa is in control of the economy, for it is those that have economic power that are in control of the state and by implication have captured the state. By being pedestrian about the subject of its investigation, the commission has spectacularly failed in its fundamental objective – which was to answer whether there has been state capture.”
He continued: “What exacerbates matters is that the commission has also deemed it proper to traverse issues that have the potential to bring the country in collision with international law. By making comments about the suitability or not of former US president Donald Trump, the commission is potentially contravening customary international law principle of non-intervention.”
In his final analysis, Shai said it was important to note that the commission’s findings were not binding and merely constituted an opinion.
Among those implicated in the findings is the SABC’s former acting general chief executive Hlaudi Motsoeneng.
Justice Zondo recommended that law enforcement agencies conduct investigations with a view to instituting possible criminal prosecution against Motsoeneng for possibly contravening sections of the Public Finance Management Act when he concluded the agreement between the SABC and The New Age (TNA) newspaper on breakfast briefings.
This was after the SABC entered into a deal with TNA in 2011, which among other things required government departments or TNA to appear in SABC broadcasts for purposes of communicating with the nation.
On Monday, Motsoeneng rubbished Justice Zondo’s findings, arguing that he was never part of the executive when the contract with The New Age was signed. He said the chief justice had also made an error in his report.
“Zondo is wrong, I was never part of the SABC executive but Zondo says I must be investigated. What am I being investigated for? We must act against corruption and not be selective.”
Former Prasa boss Lucky Montana, who has accused Justice Zondo of suppressing his evidence by not allowing him an opportunity to provide evidence to the commission, said he intended to lay criminal charges against Justice Zondo.
Montana argued that the findings were “predetermined” and stated that he would, after studying the report, lay criminal charges against Justice Zondo for “deliberate violation of the law, abuse of power, criminal conduct and disgraceful conduct”.
In his report, Justice Zondo found that Montana, who served as Prasa chief executive until 2015, appeared to have been a “significant role player” in the capture of Prasa, including by allegedly determining which service providers would be allocated major tenders.
He recommended that police investigate Montana for his role in awarding what he said was a corrupt locomotive contract to Swifambo, and over multimillion-rand property deals.
“It is also my firm view the reports of the State Capture Commission should not only be taken on review but criminal charges be laid against Justice Zondo personally for his deliberate violation of the law, abuse of power, criminal conduct, and disgraceful conduct. He used this commission to effectively protect the real criminals among us and consolidated their power,” said Montana.
Daily News