A shot was fired across the bow of the Zondo commission yesterday. Former President Jacob Zuma's lawyer, advocate Sikhakhane effectively gave notice that he will challenge the findings of the commission in court. This happened in the course of Zuma's application to have Judge Zondo recuse himself from the commission. Coming at such a late hour, a successful application would, effectively, collapse the State Capture commission in its current form . Much commentary had assumed that the basis for the recusal application would lie on the personal relationship that existed between the judge and the President. Zondo himself seems to have thought this would be the case himself, which is probably why he opened yesterday's proceedings by laying out the details of their relationships. Previously, he had published an article setting out the facts of a relationship he had with the sister of a woman who later married Zuma. This, however, was not Sikhakhane's approach. Instead, he suggested that Zondo had prejudged the issue as evidenced by various remarks he had made to several witnesses.
I doubt that these constitute very strong grounds, and a well known anti-corruption activist even suggested that the advocate had embarrassed himself. We will find out in the next few hours.
More importantly, Sikhakhane hinted at the argument that he would make in having the commission's findings set aside on review. Here, I thought he was on very firm ground. His critique points to a vacillation at the heart of the SCC that has not been resolved. The problem with an enquiry into 'state capture' is that the meaning of the term is not readily at hand. It definitely does not exist in law. Furthermore, the way that the term is used in South Africa sits awkwardly in relation to the way it was defined originally by Hellman and Kaufmann and/or the way it is used internationally. There the emphasis is on the way small networks of politicians and businessmen change rules, regulations and laws to benefit themselves. Capture is thus a change in the form of the regime, which legalises corruption. My colleagues and I will soon release a report on state capture arguing that it is a political phenomenon that installs oligarchy in place of democracy. This political sense of state capture has largely been lost in South Africa, except in a very limited, literal sense.
The approach of the Public Protector in 2016 was to define the ‘State of Capture’ in relation to very specific circumstances concerning 1) then President Zuma and his family and 2) the Gupta family. Hence the Public Protector investigated, inter alia, whether then President Zuma improperly and in violation of the Executive Ethics Code allowed the Gupta family and his son to decide on the removal and appointment of the Minister of Finance in December 2015; whether he allowed members of the Gupta family and his son to be involved in the process of removing and appointing Cabinet members and so on. Likewise, the Public Protector investigated whether the Gupta family and Zuma’s own son received state contracts unlawfully or improperly and so on. The crux of the matter was whether the President had improperly used his position to enrich himself or the Gupta family and his son. Therein lay the definition of state capture. State capture existed to the extent that a sitting President used his official position to benefit himself, his friends and/or his family.
The Terms of Reference for the State Capture Commission, however, do not have this simplicity of definition. While they include the same instances of improper conduct, the terms of the investigation are much wider. So, for example, allegations that advisors to Minister Des Van Rooyen were appointed irregularly is framed as a question of whether any advisors in the Ministry of Finance were appointed without proper procedures. The terms of reference orient a definition of state capture in two directions. The first concerns violations of the Constitution, of the law and of ethical standards in relation to the award of contracts in State-Owned Enterprises and in government departments. The second category, includes attempts to interfere in the political process by unduly influencing the appointment of ministers and/or of distracting politicians from their official responsibilities to involve themselves in the private matters of individuals. In this confusion it is difficult to know what state capture refers to and what facts are needed to prove it. The commission has not helped itself in this regard.
It is far from clear, however, that the commission has proceeded on the basis of any particular conception of state capture. It looks like it has investigated what was originally in Thuli Madonsela's 'State of Capture' report as well as whatever else has happened to come to it . In other words, it risks being challenged on the basis of arbitrariness.
The role of the judge in this case is not to evaluate facts on the basis of a legal definition of 'state capture' and then to pronounce on whether the commission has found evidence for 'it' or not. Rather the commission has to develop the concept itself and establish its juridical elements. It is an opportunity to define a new legal category. Zondo must work as as much as a judge as a political scientist. Therein lies the challenge that Sikhakhane looks likely to make. He might argue that the commission has failed to define state capture and establish the facts needed to prove its existence or not. Instead, it has arbitrarily investigated various instances of alleged corruption whose relationship to one another is unclear or non-existent. So even if the commission finds that some people have done some very bad things, it is not in a position to find state capture. It will, therefore, have failed in its mandate, not because there was no such thing as state capture, but because the commission did not go about its work rationally. In this way, it has come to pursue a political rather than a juridical purpose.
I think there is much merit in this critique.