EDITORIAL: Commissions aside, where are the law enforcers?
President Cyril Ramaphosa’s government is determined to expose corruption. But is it equally determined to punish it?
It was 15 years ago that the then national director of public prosecutions (NDPP), Bulelani Ngcuka, said there was a prima facie case of corruption against Jacob Zuma, but it was "unwinnable". This seemed strange reasoning. Prima facie — or "on the face of it" — means there appears to be enough evidence to institute a prosecution and get a verdict.
In 2009, acting NDPP Mokotedi Mpshe also decided not to prosecute Zuma. He went against the advice of his own senior prosecutors, who believed the case was certainly winnable.
Nine years later, we have gone far beyond mere prima facie evidence, and far beyond Zuma himself. The Gupta e-mail leaks have produced thousands of pages of evidence of illegal activity, none of it refuted. The concept of "state capture" has entered the political lexicon, and ministers such as Pravin Gordhan talk unequivocally of politicians and executives at state-owned enterprises (SOEs) having "stolen" from the people. The word "looted" is used routinely, and nobody bothers even to preface it with "allegedly".
Reputations of international companies such as Bell Pottinger, McKinsey and SAP have been ruined or tarnished. Local companies such as Trillian and Regiments Capital have been exposed. Contracts and tenders have had their value inflated so that money can be skimmed off for capture loyalists. Directors of SOEs have interfered with procurement and been negligent at best, actively criminal at worst.
There have been weighty reports pointing to illegal behaviour, defiance of the Public Finance Management Act and bending of procurement rules. In some cases — like the awarding of Eskom coal contracts to a company linked to the Guptas that was ill-equipped to honour them — the transgression was beyond belief.
Transnet’s recent announcement of an R8.1bn impairment for irregular expenditure since 2005 tells us that some skeletons of Jurassic proportions have been dug up.
Many individuals, such as former Transnet and Eskom CEO Brian Molefe, have a great deal of explaining to do. For them, one would think, there is no place to hide. There is, without doubt, a prima facie case for them to answer — immediately.
Yet that has not happened. Instead we have a phalanx of commissions — notably judge Robert Nugent’s inquiry into what happened at the SA Revenue Service under commissioner Tom Moyane, and deputy chief justice Raymond Zondo’s commission into the state capture project.
This suggests President Cyril Ramaphosa’s government is determined to expose corruption.
But is it equally determined to punish it?
Commissions of inquiry are normally established when the facts need to be uncovered and individuals put under the hot lights. But what further substance can we glean from two more years of inquiries, before prosecutions happen?
Long before this week’s opening of the Zondo inquiry, former finance minister Mcebisi Jonas stated bluntly that he was offered a R600m bribe by the Guptas. He can say that again in front of Zondo, but it will add nothing to our understanding of the affair. If the police have so far been unable to act on such a statement, what can Jonas say now that will prompt them to do so?
The fact is that our record with commissions of inquiry is not encouraging. The Seriti commission on the arms deal, the Farlam commission on the Marikana massacre — these were inordinately expensive in time and money. And to what end? Greater insight? Sure. Greater accountability for the wrongdoers? Not so much.
Whatever a commission discovers, it can only make recommendations. It cannot prosecute people and send them to prison. Only the NDPP and the police can do that.
Given the abundance of evidence, these "law enforcers" really do not have to wait for the commissions to run their course before acting — but don’t be surprised if they do.