Assistant commissioner Gill Marcus, left, chairperson Justice Lex Mpati and assistant commissioner Emmanuel Lediga during the PIC Commission of Inquiry being held at Sammy Marks Square, Pretoria. Picture: Thobile Mathonsi/African News Agency/ANA
Assistant commissioner Gill Marcus, left, chairperson Justice Lex Mpati and assistant commissioner Emmanuel Lediga during the PIC Commission of Inquiry being held at Sammy Marks Square, Pretoria. Picture: Thobile Mathonsi/African News Agency/ANA

Commissions of inquiry at risk of becoming kangaroo courts

By Ayanda Mdluli and Noni Mokati Time of article published Jun 10, 2019

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A kangaroo court, according to the Oxford Dictionary, is defined as an “unofficial court held by a group of people in order to try someone regarded – especially without good evidence – as guilty of a crime or misdemeanour”. The Merriam Webster dictionary further defines the term as a platform that often ignores recognised standards of law and justice and carries little or no official standing in the territory within which it resides. 

A theory, presented by writer Cecil Adams, contends that the term comes from the notion of justice proceeding “by leaps”, like a kangaroo. In other words, jumping over or intentionally ignoring evidence that would otherwise be in favour of the defendant. So, the question is: Do the current commissions of inquiry have the potential to be kangaroo courts? 

Over the past year, President Cyril Ramaphosa has instituted several commissions. These include the Nugent Commission of Inquiry into Tax Administration and Governance by the SA Revenue Service (Sars), the Judicial Commission of Inquiry into Allegations of State Capture, the Eskom Inquiry, the Mokgoro Inquiry as well as the Inquiry into allegations of impropriety at the Public Investment Corporation (PIC). 

The establishment of such platforms is important to Ramaphosa in his pursuit to stamp out systematic and structural corruption, alongside endemic maladministration that has gripped state-owned entities.The expectation of those leading each commission of inquiry is that they and their supporting team remain impartial and level-headed while executing their duties, but it appears this is not always the case. 

Here is why: At the PIC commission, for instance, there have been a number of brazen discrepancies in how evidence has been handled. Firstly, while the terms of this commission are to examine impropriety at the asset manager, both internally and externally, that are linked to companies that were reported on in the media over a specific time period, evidence leaders have started out with the assumption that these reports were true in the first place. 

While it is important to acknowledge the existence of these reports, the onus should be on each of the commissions’ personnel to diligently interrogate and verify the content of these reports, and not accept them at face value. It is also a truth that media sometimes get the facts wrong; as so often happens in today’s immediate-news era, these incorrect stories are spread widely. 

Looking objectively at the PIC inquiry, and at the latest developments in the country where scores of black chief executives, entrepreneurs and professionals are being purged, it could be suggested there is a propaganda war against blackness as a whole in our economic landscape. This propaganda war appears to be largely driven by white-owned media entities with close ties to white monopoly capital. 

Are these organisations using the PIC and Zondo commissions to legalise and give some kind of validation to their published utterances for their own gain? 

Presented as evidence, (uncontested and often hearsay), stories have now become legitimised as fact through these commissions. Next, those who have been found “guilty” at the commission will no doubt face legal proceedings and be stripped of all their assets – perhaps that is the aim of those pulling the strings.

Of course, those who have genuinely erred should face the consequences of their actions. 

The stipulated terms of reference are also problematic, posited in such a way as to suggest there is already a predetermined outcome, from the onset. In the PIC inquiry, the terms of reference state that the commission must look at transactions that took place under the tenure of former chief executive Dan Matjila between 2015 and 2017. The problem is there were a number of highly questionable transactions before Matjila’s tenure, many of which have implicated high-ranking politicians and corporate executives who have used Government Employee Pension Fund money to springboard their businesses, becoming billionaires in the process. 

Why not set the terms of reference to include all questionable transactions at the PIC? Why only those few between a certain period and those few that were extensively reported on? Why be selective? 

Thus, we need to ask who set the terms for the president to ratify, and why. To suggest that there was no impropriety prior to the elevation of Matjila is an insult to the intelligence of the people of South Africa. It also exposes the existence of a deflective propaganda campaign, similar to the communication tactics employed by the infamous Gupta family that led to the demise of global public relations firm Bell Pottinger. 

The only difference now is that South African media conglomerates appear to be willing participants to a targeted dirty-tricks disinformation campaign where impartiality simply does not exist. 

For example, the entire mainstream media fraternity, excluding Independent Media and the SABC, appear to have closed ranks with their widespread defence of Pravin Gordhan, who, while widely regarded as a shrewd politician, has been reported to the public protector by the EFF, and allegedly strongly implicated in corruption and fraud at Sars’ espionage unit (aka the rogue unit). 

Despite a dismal showing as Public Enterprises Minister when the country was not only plunged into stage four load shedding – and the shock departures of highly regarded black chief executives at Eskom, SA Airways and Transnet – Gordhan still finds his way into Ramaphosa’s Cabinet, and yet the majority of the media continue to laud him. 

This past week, Thulani Ngubane, acting secretary-general of the ANC Professionals League, said the exodus of black executives and marginalisation of black business in the economy has been quietly happening for some time, as there is still a false notion – going back to the apartheid regime – that all blacks are incompetent and corrupt. This is clearly not so, as there are numerous successful businesses that have been around for many years that have been founded and run by very competent people of colour. 

On the other hand, corruption knows no colour bias, as evidenced by the Bosasa revelations and others at the Zondo inquiry. There is much at stake at all of these commissions. The potential for them to be used as kangaroo courts is real. To prevent this happening, matters need to be consistently and meticulously managed, and discrepancies need to be addressed. Failure to do so could dash Ramaphosa’s hopes of a corruption-free country. 

* Mdluli and Mokati are senior journalists at Independent Media

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