ANALYSIS: The big state capture questions Zondo must get answered
He must find out whether Zuma farmed out his presidency, and whether the ANC did anything about it
There is a question that deputy chief justice Raymond Zondo keeps asking: who should have done what to prevent state capture?
It is not listed in the terms of reference of the state capture inquiry but Zondo often puts it to witnesses appearing before him, and he also mentioned it in a television interview this week.
It is obviously top of mind and reflects the judge’s thinking about the anatomy of state capture.
The voters entrusted the running of government to a political party and the party then deployed people into leadership positions. Zondo is obviously trying to identify how people not linked to the governing party or the state were able to take control.
Was it oversight, negligence, failure or wilful surrender? If so, who should be held accountable?
This might be one of the most significant outcomes of the commission. To make this finding, Zondo needs more pieces of the puzzle.
Through the evidence presented at the commission, it is still not clear how the Guptas were able to commandeer control of the state, and why did the ANC not intervene to protect their mandate?
SACP deputy general secretary Solly Mapaila and former Independent Police Investigative Directorate boss Robert McBride might therefore be helpful to Zondo.
McBride’s affidavits have been submitted to the commission and therefore cannot be reported on. Mapaila, however, is yet to be interviewed by the investigators and submit his statement and is therefore not under embargo.
He told the Sunday Times that a group called the “engine room” gave extensive advice to former president Jacob Zuma before the 2009 elections that influenced the structure and policies of his government.
The elite group was apparently co-ordinated by filmmaker Duma Ndlovu and businessman Vusi Mvelase, and included former national police commissioner Riah Phiyega, Independent Electoral Commission (IEC) chairperson Glen Mashinini, former police minister Nkosinathi Nhleko, former presidential spokesperson Vincent Magwenya and former South African Revenue Service (Sars) commissioner Tom Moyane.
Former public protector Thuli Madonsela also fed into the work of this group. She says she saw it as a process to source expertise from professionals and academia in the national interest. Her contribution was in the area of ethics, good governance and social justice.
Mapaila’s gripe is that the group was assembled in secret and that Zuma never informed the ANC and its alliance partners about its work. The alliance in the meantime had appointed a transitional team with a mandate to restructure and refocus the new government in line with the resolutions of the ANC’s Polokwane conference.
The transitional team had a reporting line with a set political process to discuss its recommendations and implementation, says Mapaila.
The engine room did not. The group made proposals that went straight to Zuma.
In some instances, says Mapaila, Zuma disregarded the ANC’s recommendations and opted for what was proposed by his “kitchen cabinet”.
Though they were shocked when Zuma announced the new government, with two separate ministries for the National Planning Commission and performance monitoring and evaluation, the ANC did not take the president to task for snubbing their agreed position that this would be one ministry.
The constitution gives the president extensive powers, such as the prerogative to appoint cabinet, assent to bills and determine what the government does. But the mandate and policies come from the party.
So what if Zuma sourced research and advice from outside the ANC? President Cyril Ramaphosa is doing pretty much the same thing now under the “thuma mina” banner. In fact, Ramaphosa made a call in the State of the Nation address for people to make suggestions about the downsizing of government.
Mapaila has not suggested that there was corrupt intention in the work of the engine room.
His argument is that if you want to track the genesis of state capture, which is seemingly what Zondo wants to do, a contributing factor is that the ANC’s mandate was usurped by a satellite group even before Zuma took his oath of office.
Mapaila also points out that most of the people in the engine room went on to serve in key positions in Zuma’s government.
It could be that Zuma simply trusted the people he got advice from. Or was it that some of Zuma’s loyalists saw the potential to control the state once the ANC had given them the space to do so?
Some people in the group assumed the role of the president’s apologists and fixers.
Besides being disastrous in the police portfolio, Nhleko and Phiyega were responsible for conceptualising and defending the ridiculous notion that Zuma’s swimming pool at Nkandla was a “firepool”.
In an affidavit presented at the Nugent commission into the affairs at Sars, former managing partner at Bain & Co, Vittorio Massone, explained how Ndlovu had facilitated meetings with Zuma and Moyane. Massone said that between 2012 and 2014 he held at least 12 meetings with Zuma, most of which had been arranged by Ndlovu.
Nugent found that Moyane and Bain strategised to seize Sars, and their reworked operating model wasted money and caused substantial damage to the revenue service’s ability to collect tax.
When Madonsela was appointed public protector in October 2009, she had Zuma’s full backing. He apparently assumed she would be loyal to him because she worked on the conceptualisation of his government.
But her conduct was beyond reproach and she took on the president, not once but twice – on Nkandla and state capture. If, however, she was not highly principled and dedicated to public service, her tenure could have gone the other way. The office of the public protector could have been abused to protect the president and advance a factional agenda.
In the same way, Mashinini could have used his position in the IEC for nefarious purposes.
These are among the things Zondo will have to assess when McBride and Mapaila present their testimony.
Were the Guptas able to capture the state because the ANC had already relinquished control before Zuma became president?
Considering all the benefactors and influencers orbiting Zuma, was it that he willingly farmed out his presidency to support his own agenda and lifestyle? The crux is whether the ANC knew the extent of the parallel ecosystem, and how did it try to reclaim its mandate.
For Zondo, this will be where his commission ultimately leads. His report must explain how state capture came to be, who needs to take responsibility for this and how it can be prevented in future.
As we stand at the threshold of a new government, that should, in fact, be everyone’s preoccupation. The personalities might be different but the danger to the state and opportunity for corruption remain.