Devi Pillay is a research fellow at GI ACE and a research associate at the Public Affairs Research Institute (PARI) in South Africa. She was previously a researcher and analyst for the Zondo Commission, and has worked extensively on corruption and state capture in South Africa.
In part one of this blog series, I explained how South Africa came to appoint a Commission of Inquiry into State Capture, known as the Zondo Commission after its Chairperson. For four years between 2018 to 2022, the Commission investigated corruption and state capture involving former President Jacob Zuma, the Gupta family, and many others. In this blog, I discuss the nature and scope of the Commission’s work. The final part of this blog series, still to come, will discuss the Commission’s recommendations and the post-Zondo reform agenda in South Africa, and reflect on its legacy three years on.
The scope of the Commission’s work
Although the President was forced to establish the Zondo Commission by a binding recommendation made by South Africa’s Public Protector (PP), it was still within his power to determine its Terms of Reference (TOR) using the PP’s State of Capture report as a “starting point.” In the end, the President charged the Commission with a much broader task than initially envisaged.
The Zondo Commission’s overall mandate was to “investigate matters of public and national interest concerning allegations of state capture, corruption, and fraud,” and to report on its findings and make recommendations. This was specified through nine individual terms of reference. Some were narrowly defined and specifically related to issues raised by the Public Protector: whether the Gupta family had been involved in Cabinet appointments, or benefitted from improper business dealings with the state. But some TORs charged the Commission more broadly with investigating “the nature and extent of corruption” in the issuing of contracts and tenders by virtually all public entities. No time period was specified, essentially giving the Commission unlimited historical jurisdiction.
This was an obviously impossible mandate to fulfil. The Commission had to interpret the TOR and determine its own scope of work. In the end, in addition to the specific cases stipulated in the TOR, the Commission investigated a number of major state-owned enterprises and national departments, as well as some provincial and municipal governments. Some of these cases were related to the Gupta family, but some were not: for example, the Commission’s investigation into Bosasa and Prasa dealt with two separate but overlapping networks of corrupt actors. The Commission also investigated the failure of institutions responsible for detecting and acting on serious corruption and state capture: the revenue service, the prosecuting authority, the police and intelligence agencies, and even Parliament’s oversight functions.
The Commission’s investigations into these institutions were intensive, covering key public appointments, procurement deals, money laundering, political financing, and the structural causes that allowed corruption to take root in state entities. See here for a more detailed summary of what the Commission covered in its investigations and final reports.
The question of “state capture”
The Commission was appointed to investigate state capture, a concept that had become popular to describe the corrupt machinations of the Zuma/Gupta network. However, the term has no formal, legal definition, and none of the specific TOR referred to it directly. While referenced in the title of the PP’s report, State of Capture, the PP did not offer either a definition or framework for the concept. (For more detail on this, a recent episode of Kickback discusses the evolution of the term in South Africa.)
On the first day of hearings, the Commission’s legal team laid out how they were approaching the TOR and overall mandate. They conceptualised state capture as a subversion or attack on the democratic project envisaged by the South African Constitution. State capture, they proposed, was an organised project perpetrated by a network of corrupt actors working together to redirect state resources into private hands. It would involve “a deliberate attempt to weaken democratic processes and to shift political decision-making away from constitutional bodies.” The opening address also made clear the Commission’s intention to go beyond the investigation of individual acts of wrongdoing and to deal with the more systemic causes of corruption and state capture, and to understand what made some institutions more vulnerable than others. The Commission also undertook to investigate the failure of various state institutions to detect and act upon corruption and state capture, and whether they had themselves been “captured.”
In its final report, the Commission laid out its final definition, which it developed based on its entire body of evidence, jurisprudence from state capture cases, and academic research:
a project by which a relatively small group of actors, together with their network of collaborators inside and outside of the state, conspired systematically (criminally and in defiance of the Constitution) to redirect resources from the state for their own gain.
Such a project, the Commission argued, would have several key features, including the following:
This was facilitated by a deliberate effort to exploit or weaken key state institutions and public entities, but also including law enforcement institutions and the intelligence services. To a large extent this occurred through strategic appointments and dismissals at public entities and a reorganisation of procurement processes. The process involved the undermining of oversight mechanisms, and the manipulation of the public narrative in favour of those who sought to capture the state.
To this was added an analysis of how those who captured the state sought both to enrich themselves and to perpetuate their power:
Moreover, the subversion of the democratic process which the process of state capture entailed was not simply about extracting resources but was further geared towards securing future power and consequently shaping and gaining control of the political order (or significant parts of that order) in a manner that was necessarily opaque and intrinsically unconstitutional.
The Commission concluded that state capture did indeed occur in South Africa during the period under review.
Challenges and weaknesses
When the Public Protector (PP) recommended the establishment of the Commission of Inquiry, she also recommended that the chairperson should be selected by the Chief Justice of the Constitutional Court. His choice was Raymond Zondo, then-Deputy Chief Justice. Zondo was well regarded as in this role, widely praised for his integrity and courage. However, there were concerns about the appointment of a sitting judge (rather than a retired judge, which is the norm). Chairing a commission requires significant time and attention, and can conflict with judge’s other duties – this was a real concern during the Commission, especially once Zondo was appointed Acting Chief Justice after the retirement of his predecessor. Both the Commission and the Court were overburdened and faced substantial delays.
There were also concerns that the highly political work of the Commission could drag the judiciary into messy partisan conflict and potentially threaten the image of an independent and impartial judiciary. These worries were not without merit. When Zuma refused to appear before the Commission, the Commission was pulled into lengthy legal battles, complicated by the fact that Zondo was the Deputy Chief Justice (and then Acting Chief Justice) and brought Zuma’s case directly to the Constitutional Court. While the Court found in the Commission’s favour, it also criticised the Commission for handling Zuma with too much deference for too long before using its compulsive powers and taking legal action. By trying to remain above the fray and appear impartial in the face of Zuma’s narrative of victimisation, the Commission only hampered its own ability to complete its work.
There were other challenges. The Commission’s lifespan was in tension with its broad TOR. This was aggravated by reluctant and non-cooperative witnesses leading to significant delays. As a result, the Commission had to seek court-ordered extensions on several occasions to properly complete its work. The Commission also struggled to secure resources from the Treasury as time went on. At one point, Commission staff worked for months without pay, although they were eventually compensated. Ultimately the Commission cost nearly R1 billion – although more than ten times that has since been recouped by asset recovery resulting from the Commission’s investigations.
The Commission was wide-ranging in its inquiry, if perhaps too ambitious – a number of investigative work streams could not be completed by the end of the Commission’s term. This included the capture of law enforcement agencies, a line of investigation begun but abandoned by the Commission, which was a missed opportunity given how deeply affected these institutions were (and still are!) by state capture.
While the reports of the Commission are important, they also suffer from a degree of unevenness. The Commission never made clear to the public its strategy for selecting cases or how it allocated resources and time to different investigative streams. The attention paid to different facets of state capture was at times unbalanced, and certain areas were under-served; there was a disproportionate allocation of time for some witnesses and evidence streams, at the expense of others. For example, while some workstreams rigorously investigated the role of the private sector in a particular corrupt arrangement, others barely touched the subject. This is also reflected in the recommendations. The recommendations issued to some institutions involve wide-ranging policy reforms to address the structural causes of corruption; in other cases, the recommendations are narrowly limited to investigating and prosecuting individual criminal cases.
Most of this unevenness stems from the broad scope of its mandate and the inevitable complexities of a brand-new institution having to develop strategies and methodologies within a very short timeframe, exacerbated by the limited resources available to the Commission in its final months. Understandable, but also important for us to consider when evaluating the Commission’s body of work, and identifying gaps for further inquiry.
Conclusion
Despite these obstacles, the Zondo Commission conducted its work with rigour and integrity, producing a set of final reports rich in both evidence and analytical depth. They lay out in detail how corruption occurred in a wide range of state institutions, the regulatory and structural weaknesses that allowed these events to happen, the political dimensions and networks behind state capture, and provided findings not just about individual criminal liability but about reform in key areas of the state.
The final record of the Commission includes testimony from over 300 witnesses in 429 days of public hearings, and over 1.7 million pages of documentary evidence, including statements, affidavits, investigative reports and other evidence. There is a further petabyte (1 million gigabytes) of data collected by the Commission. This is a treasure trove of information for anti-corruption researchers and advocates alike, and much work remains to be done in fully analysing that evidence, filling gaps and addressing weaknesses in the Commission’s findings, and using all of this information to push for real reform. There is also work to be done on researching and analysing the work and legacy of Commission itself, and how future commissions – or similar structures in other countries – might learn from these experiences.
This blog draws from the author’s experience as an analyst for the Zondo Commission and relates to GI ACE’s broader work on State Capture. Find out more about GI ACE’s research here.