Jury out on state capture arrests, too early to celebrate

Chief Justice Raymond Zondo. Picture: Karen Sandison/African News Agency(ANA)

Chief Justice Raymond Zondo. Picture: Karen Sandison/African News Agency(ANA)

Published Jun 5, 2022


By Bheki Mngomezulu

With the Zondo Commission having completed its hearings, all eyes have turned to the National Prosecuting Authority (NPA) to act accordingly. In September 2021, Kuben Moodley, director of Albertime, was arrested.

He was described as “a Gupta fixer” and was accused of acting improperly. This arrest gave the impression that the wheels would roll with speed once the commission’s report was out. Following Chief Justice Raymond Zondo’s submission of Volume Four of his report to the president, the NPA’s Investigating Directorate has started acting. Transnet has had the early casualties.

On May 27, some of its former employees were among the five individuals arrested. They included Siyabonga Gama, former CEO, Garry Pita, former CFO, and Transnet’s former treasurer, Phetolo Ramosebudi. The other two people who were arrested were Trillian Capital’s former executive, Daniel Roy, and Regiments Capital shareholder Eric Wood.

The charges laid against them included fraud, corruption, money laundering and contravening the Public Finance Management Act (PFMA). These cases arose from the payment of R93 million by Transnet to Trillian for allegedly arranging a R30billion club loan that was going to be used to acquire diesel and electric locomotives.

The State’s argument is that the transaction was not done properly. Whether this improper payment was done deliberately or unknowingly is a matter for the court to decide. What is of interest to me is to make sense of these arrests and to postulate what they will lead to. At a glance, these arrests are to be celebrated as a move in the right direction.

Even organisations like Business South Africa have welcomed these arrests on the assumption that they will serve as a deterrent to prospective fraudsters. Indeed, this is a fair and rational assumption – especially when looking at it outside of the broader context.

However, once one casts one’s eyes back to the history of the Zondo Commission, a pessimistic picture is painted. My view is that while the NPA should justifiably be commended for these arrests, it is still too early to celebrate. I will expound this submission below.

According to Section 84(f) of The Constitution of the Republic of South Africa (Act 108 of 1996), the sitting president is responsible for “appointing the Commissions of inquiry”. However, with the Zondo Commission, Advocate Thuli Madonsela recommended that in the envisaged commission, the appointment of the judge who would chair the commission was to be done by the Chief Justice, not the president.

Her argument was that then President Jacob Zuma was implicated and therefore could neither appoint the chairperson nor receive the resultant report. Therefore, Justice Raymond Zondo was not appointed by President Zuma as would be the norm. I won’t dwell on whether Zondo was the first choice to chair the commission or not.

That would fall within the purview of legal minds. The reality is that Zondo chaired the commission. During the proceedings of the commission, many things went wrong. Some witnesses were economical with the truth. Whether they did this deliberately or had forgotten the facts remains debatable.

Another anomaly was when Zuma appeared before the Commission. The line of questioning took a harsh stance. Justice Zondo was even infuriated and told the media that he found it unacceptable that the person who had appointed the commission was the one frustrating it.

What Zondo forgot was that Zuma had been reluctant to appoint the commission, arguing that it would divide the nation. He only appointed it after he had been forced to by the court. It is now history that the failure by Zondo and Zuma to find each other resulted in Zondo asking the Constitutional Court to prosecute Zuma for failing to return to the commission.

Moreover, he asked the court to sentence Zuma to two years if found guilty. Those of us who are not lawyers wondered if it was procedural for the plaintiff to prescribe a sentence. Other processes followed and Zuma was sentenced for 15 months’ direct incarceration – resulting in the deaths of scores of people.

President Cyril Ramaphosa, whose name was mentioned by some witnesses (including Brian Molefe and Matshela Koko), was never summoned to appear before the commission in his personal capacity. With this brief history, the question becomes: Are the recent arrests to be celebrated as a victory for justice? In other words, are people going to be arrested because they deserve to be arrested or will the arrests be used to prevent certain individuals from contesting the ANC’s December elections?

Previous inconsistencies in implementing the ANC’s “step aside” resolution lead to the conclusion that it is still too early to celebrate the state capture arrests. We have to wait and see who gets arrested and who is let off the hook and why.

* Mngomezulu is a Professor of Political Science and Deputy Dean of Research at the University of the Western Cape