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State capture inquiry: Unless justice exists for all, it exists for none

Opinion /  / 

The logo of the commission of inquiry into state capture. PHOTO: Getrude Makhafola/ANA
Democracy is delicate. In its most chaste state, it should be a priceless celebration of fairness and justice for all. History teaches us that democratic states have been debilitated through the purse of privilege. In unremitting danger of capture and surrender, democracies are eternally fragile.

State capture, defined by Dr Joel Hellman and Dr Danial Kaufmann as “the efforts of firms to shape the laws, policies and regulations of the state to their own advantage by providing illicit private gains to public officials”, is a violation of democracy.

Pastor Xola Skosana’s observation that “there has never been a time when the state has not been captured. It is a question of state capture by who, and in whose interests”.

But we also hold that state capture or any attempt to capture a state should be denounced. Our view is that state capture is treason. 

As patriots, we should all be repulsed by any company, family or individual who has used and iabused democracy. Equally, we should be appalled by public officials who have actively participated in or facilitated such plunder.

The judicial commission of inquiry into allegations of state capture, corruption and fraud in the public sector including the organs of state, under the chairpersonship of Deputy Chief Justice Raymond Zondo, is in principle, not only a noble and welcome shield for democracy, but a potentially potent instrument of justice. The fact that it is taking place signals a working democracy.

Testimonies must be corroborated by fact and documentary evidence. Truth does not fear cross-examination. Unless justice exists for all, justice exists for none.

Just a few weeks into the commission, it looked like justice itself might be on trial - even under the adjudication of the highly respected Justice Zondo. The illogical ring-fencing of the commission around one family and its group of companies is, arguably, a design fault of the inquiry. We cannot remain silent on the danger of judicial contamination as a consequence of a partisan media. We also cannot cast our eyes away from, how, in the interest of inviting as many people to come forward as possible, rules of evidence are not being rigorously applied.

The mainstream media has tended to trademark state capture as the exclusive estate of the Gupta family and former president Jacob Zuma. This is now an ingrained self-limiting and self-defeating limitation and arguably renders the commission structurally incapable of tackling the issue of state capture in South Africa.

State capture is materially about procurement and tenders. In historical and the present day, state procurement shows a distinctive and omnipotent patent of white business influence and control.

As much as 90% of the procurement of state-owned entities benefit white business. Over 90% of South African Airways’ (SAA) procurement and 70% of Eskom’s contracts are awarded to white business. These are just two statistics in a mountain of here-and-now verifiable facts. We must ask an inconvenient question - why is the ever-white complexion of state procurement in South Africa not being investigated in the State of Capture Commission? Given the hard evidence, this defies logic and justice, for that matter.

Perhaps the reason is that, caught in the mastery of mind-capture and media-capture, many look upon the fact that almost all state procurement goes to white businesses as “business as usual” in a democratic South Africa.

Limited by its own terms of reference the commission is unlikely to disrupt this white-hold over state contracts. In all likelihood it will divert attention away from the state of white domination over state contracts and tenders. Ironically, in the end the commission may be complicit in ensuring that whiteness remains as the permanent marker of state procurement.

Peter Goss, a governance and anti-corruption consultant stated in an ENCA interview that “what we have heard is a list of allegations being posed by various witnesses through oral testimony. I am grappling: where is the documentary evidence and the real evidence that the implicated witness is supposed to defend?”

Seemingly, the most rudimentary legal precepts are being overruled in what can only be described as an enraptured courting of evocative slander. In truth, the evidence presented to the commission has been an avalanche of allegations rather than a mountain of evidence.

And more of the same will not shape this rickety and titanic heap of accusation into a solid base of evidence. In a court of law, the overwhelming predominance of circumstantial evidence in the testimonies presented would be dismissed with much deserved scorn.

Grandiose utterings, which have no basis in law should not be honoured over gravity of evidence. Incredulous innuendo is trumping trustworthy testimony and common sense is being swindled in a legal “listeriosis” of unadulterated illogicality.

Cross-examination is crucial in the pursuance and declaration of truth. What is of concern is the casual and time-delayed cross-questioning procedure that we are seeing at the commission. This approach could well contaminate proceedings and effectively balloon baseless claims. The fact that one has had to bring a formal application for the right to cross-examine is problematic for it is a fundamental principle that one has to face his or her accuser.

The preponderance of allegations should not be used to sway any relaxation of judicial standards. Unless the State of Capture Commission is fully guided by the rules of evidence that govern our constitutional democracy, mindful advocates of social justice will increasingly question whether the commission is but a ruse, with a noose never intended to choke real state capture in South Africa.

We are conjoined by a constitution that arbitration of justice must be fair, and exercised without fear, favour or prejudice. Whatever our personal or political prejudice is, this must never be allowed to diminish or downgrade democracy or justice. We should all heed the words of Malcolm X, a great revolutionary leader and truth-monger, who said, “I’m for truth, no matter who tells it. I’m for justice, no matter who it’s for or against.” We want the truth. The whole truth and nothing but the truth.

* Seepe is an academic and political analyst and Heller is a communication specialist and political analyst.

** The views expressed here are not necessarily those of Independent Media.

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State capture inquiry: Unless justice exists for all, it exists for none