Paul Ngobeni
Pretoria - President Cyril Ramaphosa announced many months before he even received the Zondo Commission report that he would enthusiastically implement the commission’s findings.
Of course, at the time of his announcement, Ramaphosa knew that he had Justice Zondo by the proverbial balls.
Justice Zondo desperately wanted to ascend to the soon-to-be vacant position of chief justice at all costs, and Ramaphosa could make his dream come true, subject to certain conditions. Zondo had to exonerate Ramaphosa in his report, even if some prominent ANC officials were sacrificed or thrown under the bus.
For good measure, Justice Zondo also unquestionably crossed the line of judicial ethics by wading into a tussle with Tourism Minister Lindiwe Sisulu over a newspaper opinion piece she published about a captured or untransformed judiciary.
Justice Zondo sought to assist Ramaphosa against Sisulu, his strongest rival for the ANC presidency, by condemning the latter for her political writings and public engagement.
Politically astute South Africans are painfully aware that Ramaphosa has a track record of manipulating and misusing the findings and reports of commissions against his political enemies to further his own political agenda.
A perfect case in point was the “Arms Deal” Commission report by retired judges Willie Seriti and Thekiso Hendrick Musi, which exonerated former president Jacob Zuma. The Seriti Commission, appointed by Zuma in 2011, thoroughly investigated the government’s controversial purchase of weaponry.
Some disgruntled white activists blasted the commission as a whitewash after finding no evidence of corruption against Zuma. These critics brought a review application in the North Gauteng High Court to set aside the findings of the Seriti Commission of Inquiry for its alleged failure to admit, interrogate and pursue evidence related to corruption allegations in the 1999 arms deal.
But Ramaphosa devised a stunning political solution to effect a negative outcome for Zuma and to ensure that the corruption narrative was perpetuated and used to Ramaphosa’s own political benefit. This is how he accomplished the feat:
First, Gauteng Judge President Dunstan Mlambo, who is reported to be Ramaphosa’s henchman, adopted an unprecedented manoeuvre.
He took over the matter and invited two other senior judges (judge presidents from other divisions), Dennis Davis and Monica Leeuw, to sit with him on the matter.
The jurists then proceeded to invalidate Judge Seriti’s finding that there was no evidence of corruption in the arms deal.
Significantly, the court observed that the review was not opposed by any of the respondents, nor any party, for that matter. In particular, Ramaphosa (fifth respondent) chose to abide by the decision of this court.
He gerrymandered this outcome by instructing the ministers of Justice and Public Enterprises not to oppose the application. In short, Ramaphosa embarked on a farcical process and charade to ensure that there was no opposition to the review of the Seriti Commission, and he did all that “merely to assist this Court to arrive at a correct decision”.
As the publication “Legalbrief” noted, the judgment effectively meant Zuma “can no longer count on the commission’s findings – as he has done up to now – to argue against the myriad arms deal corruption-related counts he faces”.
You may vociferously argue against Zuma’s persistent insistence that judicial and state institutions have been used to persecute him and other political opponents of Ramaphosa all you like, but the evidence is just too glaring to ignore.
Ramaphosa also pulled another stunt that is particularly revealing of his political calculations. Before he even saw the report, he assured the public the recommendations of the Commission of Inquiry into Allegations of State Capture report would be implemented once he received it.
This begs the question: Can a law-abiding, rational, honest and duty-conscious president commit to accepting and implementing the report of a commission before it is even drafted and published ,or before he has even seen its contents?
How would he know in advance whether the report was riddled with “a manifest set of errors of law, a clear failure to test evidence of key witnesses, a refusal to take account of documentary evidence which contained the most serious allegations which were relevant to its inquiry” before such drafting and publication of the report?
Is such conduct consistent with Section 84 of the Constitution and the principle of legality, and if not, does that not render the president’s acceptance of the Zondo report and implementation a nullity?
We can leave that to the lawyers of those falsely implicated in the Zondo report.
But that is not all.
After the commission was established, Ramaphosa took another insidious step to weaponise the commission. Following loud criticism of the NPA for its alleged failure to prosecute high profile state capture cases, Ramaphosa amended the commission’s regulations to allow the Zondo Commission to be used as a Trojan horse for the unwary.
In November 2019, the National Director of Public Prosecutions, Shamila Batohi, said that while there was good co-operation with the commission, accessing information was difficult.
In response to the importuning of the NPA, Ramaphosa published in a gazette notice of July 28, 2020, an amendment that effectively allows South Africa’s law enforcement agencies to have access to information gathered by the Zondo Commission, making it easier to build cases against implicated individuals.
People had already given and completed evidence under the rules as they existed, and implicated people were under the impression that the investigators would operate professionally and not labour under a conflict of interest. That changed as the SIU has now used the very information given to the Zondo Commission to arrest persons implicated in corruption and other offences.
This disturbing meddling by Ramaphosa has also raised the spectre that the Zondo Commission is hopelessly compromised and was transformed into an instrument to fight factional battles within the ANC.
It would be interesting to see how Ramaphosa uses his political clout to influence the NPA’s prosecution of his hitherto untouchable allies, such as ANC national chairperson Gwede Mantashe, Deputy Minister of Defence Thabang Makwetla, State Security Deputy Minister Zizi Kodwa, and others.
The constitutionality of rules compelling witnesses to appear before a commission set by the executive, coercing them to testify about certain matters and then using that compelled testimony to build criminal cases against them will be seriously litigated in the coming months and years.
In the process, the NPA’s recent public pronouncements have caused it to lose whatever credibility it had remaining.
On May 10, 2022, Batohi announced before the Portfolio Committee on Justice and Correctional Services that the NPA’s Investigating Directorate (ID) intended to prosecute nine “seminal” corruption cases related to state capture within six months.
Why in the next six months?
Because the ANC watershed elective conference is due to be held in December, and the prosecutions of individuals deemed a political threat to Ramaphosa must be calibrated to assist his re-election bid.
Batohi said the nine cases prioritised were “seminal cases that will talk to the heart of state capture”. Batohi naively said: “Our response to the findings and recommendations of the Judicial Commission of Inquiry into Allegations of State Capture is what will really be defining for the NPA and South Africa.”
I consider Batohi’s view to be naive in the extreme for several reasons.
It is accepted almost universally that commissions are not courts of law, and evidence adduced during a commission’s inquiry is not automatically admissible in civil or criminal proceedings.
In this context, the NPA and other Ramaphosa puppets need to come to the realisation that they are headed for a very bumpy ride, and the Zondo Commission’s reports are simply opinions and “devoid of legal consequences”.
The said report is not automatically admissible in court and cannot be used as a weapon or a shield in the hands of the NPA at any stage in a judicial forum.
The courts must regard the Zondo Report as “devoid of legal consequences” or “sterile of legal effect”. Even though the commission was headed by a Deputy Chief Justice, its report cannot be elevated improperly to assume the status of a court judgment.
That would be purely wrong and inconsistent with Section 165 of the Constitution, which states unequivocally that judicial authority lies in the courts.
The commission and its processes are woefully inadequate, and the members of the public who have been misled to believe that Zondo has adjudged certain persons guilty will be sorely disappointed.
In short, Ramaphosa has effectively forced Chief Justice Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations, which appears to be unlawful and unconstitutional.
Lawyers will have a field day litigating such matters and exposing just how corrupt and manipulative Ramaphosa has been.
Pretoria News