Natasha Marrian Political editor: Business Day
Deputy Chief Justice Raymond Zondo and Chief Justice Mogoeng Mogoeng of the Constitutional Court chat with each other. Picture: RAJESH JANTILAL
Deputy Chief Justice Raymond Zondo and Chief Justice Mogoeng Mogoeng of the Constitutional Court chat with each other. Picture: RAJESH JANTILAL

The terms of reference for the judicial commission of inquiry into state capture, chaired by Deputy Chief Justice Raymond Zondo, will be released by the Department of Justice, the Presidency said on Tuesday night.

Spokesman Bongani Ngqulunga told the Business Day the Department of Justice and Constitutional Development was the "lead department for the commission".

The terms of reference would be released "as soon as they have been finalised".

The expectation by Zondo was that Zuma would fix the terms of reference as prescribed by law, he told journalists at a media briefing on Tuesday.

He said he was ready to begin his work, but was awaiting the terms of reference from the commission after its establishment by Zuma two weeks ago.

While Zuma is conflicted in fixing the terms of reference as he and his son Duduzane have been implicated in the Public Protector’s state capture report, it is unclear whether the department was empowered to take over the task.

Zondo was selected by Chief Justice Mogoeng Mogoeng, as recommended by former Public Protector Thuli Madonsela to circumvent this conflict.

However, her report was silent on the terms of reference.

Zondo briefing journalists on Tuesday said the commission was tasked with investigating allegations of a "very, very serious nature".

"In my view the allegations are so serious that they go to the very foundations of our Constitutional democracy … allegations that certain people are offered ministerial posts by people who do not have the constitutional power to make such offers are in my view very, very serious," he told journalists.

He was questioned about whether Zuma was not too conflicted to set out the terms of reference as the allegations linked back to him and his son, Duduzane.

But Zondo said he was guided by the law which states that the terms of reference had to be outlined by the president.

"The law states who has the authority to deal with the terms of reference. I will wait for the terms of referance and once they are given and if they stand and there is no challenge to them, I will work to them," he said.

Zondo was baited by a journalist from website Black Opinion, who initially asked if he was being given instructions by "white monopoly capital" and then whether he was willing to investigate families other than the Guptas, including the Oppenheimers and the Ruperts.

The questions were in line with the narrative created by the Guptas to defend their own alleged corruption as revealed in the Gupta leaks and by the fall of their UK-based PR firm, Bell Pottinger.

Zondo responded directly, saying he had not met any groups about the work of the commission and that he would investigate "anyone or everyone" in line with his terms of reference.

"This commission will do its work properly. We owe it to the people of this country," he said. A group of around 7 Black Land First members protested outside the venue of the briefing – the group are vociferous defenders of the Gupta family, with its leader Andile Mngxitama reportedly receiving instructions on promoting a counter narrative to state capture to defend the Guptas.

He was clear that the establishment of the commission was based on Madonsela’s report and that the report would have to be "imported" in fixing the terms of reference.

This is after Zuma suggested that he would broaden the terms of reference beyond Madonsela’s report, which could lead to a lengthy delay in the finalisation of its work.

The commission would have to have its regulations gazetted before he could make key appointments to the commission such as a secretary, evidence leaders and investigators. He expected this to happen in the coming days.

But Zondo indicated that he had to wait for the terms of reference before starting his work.