President Cyril Ramaphosa during his appearance before the Zondo commission of inquiry into state capture on April 28 2021. File photo: REUTERS/THEMBA HADEBE
President Cyril Ramaphosa during his appearance before the Zondo commission of inquiry into state capture on April 28 2021. File photo: REUTERS/THEMBA HADEBE

President Cyril Ramaphosa’s testimony before the Zondo commission of inquiry into state capture was predictably non-committal, a boilerplate version that filled the gap yet failed to satiate — like Sunday lunch without roast potatoes. A rehearsed and polished account, it took on the function of an anti-corruption public relations (PR) exercise for the state and ANC, akin to a statement read out at a media conference.

Ramaphosa’s inconsequential appearance, from a perspective of evidence gathering, is reminiscent of the commission itself: a sacrificial white elephant that has devoured taxpayer funds with a poor return on investment. The Zondo inquiry is estimated to have cost SA R1bn. The evidence presented, and the senior counsel evidence leader expertise, could just as well have been immediately employed by the National Prosecuting Authority (NPA) in the criminal courts — at a fraction of the cost and with speedier criminal convictions.

Imagine a world where the Zondo commission had never existed and the NPA had simply used the commission’s evidence and expertise to immediately indict and criminally convict. Ramaphosa and NPA head Shamila Batohi could have held regular media conferences to update our progress with NPA state capture criminal prosecutions, at a much lower cost. SA would have likely received the unspun truth, and taxpayer money would have been put to better use, had Ramaphosa been required to testify in a criminal court while being televised live.

Deputy chief justice Raymond Zondo’s eventual findings are merely recommendations the state may or may not act upon. The testimony and evidence led at the commission have no direct criminal conviction ramifications, but may be shared with the NPA to spur prosecution. But none of the oral testimony evidence is usable by the NPA in a criminal court as evidence of incrimination. A follow-up criminal prosecution would thus require the leading of fresh oral evidence — the Zondo inquiry is accordingly a rather expensive dress rehearsal for what should follow in the criminal courts.

In addition, the NPA is not legally obliged to wait for a recommendation from Zondo to prosecute. It is thus questionable what value his findings will add. In addition, it is ludicrous to potentially allow findings with a R1bn price tag to be poured down the drain if his recommendations are not followed.

As a practising advocate, I only advise clients to proceed to trial if the evidence suggests prospects of success. The NPA will, in the same manner, only prosecute if there is sufficient evidence to do so. The Zondo inquiry evidence leaders have at their disposal an abundance of explosive witness and documentary evidence that would very likely lead to criminal court convictions — this much is apparent from the live hearings.

It is positive to note that there is a predictable pattern of pressing and ramping up of criminal charges by the NPA, for example against Jacob Zuma and Ace Magashule, in response to evidence led at the commission. This is likely because the NPA and the commission’s evidence leaders have been sharing evidence. However, evidence being passed on does not justify the commission’s existence.

I fully appreciate the PR value of the commission as it sends a strong message that state capture is being taken seriously, but there are far more cost effective ways of sending the same message and securing criminal convictions.

It is an open secret in my profession that the technical and advocacy skill calibre of the majority of lower- to mid-level NPA prosecutors is lacking when it comes to the prosecution of white-collar crime. State capture matters chiefly involve white-collar crime, meaning an influx of independent expertise would hugely improve state capture conviction rates.

It is hard to argue that the commission has not slowed the pace of criminal indictments when compared with what the NPA could have achieved by handling all investigations and interviews internally. Commissions of inquiry are procedurally slow to extract information. Justice delayed is justice denied.

The NPA’s briefing of Wim Trengove SC, an independent senior counsel advocate, to act as co-prosecutor alongside state prosecutor Billy Downer SC in the Zuma corruption trial is an indication that the NPA has the political will and budgetary leeway to brief independent advocates. Batohi deserves a huge amount of credit for getting Trengove involved in SA’s most anticipated and important corruption trial. I sincerely hope his instruction is a sign of his future involvement in subsequent heavyweight state capture prosecutions.

The Zondo commission is near the end of its work, and thus about R1bn has been spent. What’s done is done. The state must learn from the experience and in future instead go directly for the jugular in the criminal courts. SA cannot afford and doesn’t need state-funded corruption-related commissions of inquiry. Immediately proceeding to the criminal courts would send a tougher message to foreign investors, and be a true deterrent.

• Hayward is an advocate at the Johannesburg Bar.


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