Analysis: Here’s hoping State Capture inquiry won’t be another ...


Analysis: Here’s hoping State Capture inquiry won’t be another Oscar trial

Pistorius’s defence strategy was enough to make you think twice about doing your civic duty and reporting to the police

Associate editor: analysis

One of the scariest parts of the Oscar Pistorius murder trial – other than that the judge initially believed he did not intend to kill Reeva Steenkamp – was the cross-examination of neighbours who had heard her scream.
Pistorius’s advocate, Barry Roux, did his best to discredit the state witnesses who testified that they heard a woman’s “terrible screams” in the middle of the night.
Roux questioned the witnesses on the type of screams they claimed they heard, whether they could be sure they came from a woman or a man, and how they could tell that the person screaming was frightened.
Roux argued that the evidence of Dr Johan Stipp could not be relied on because he said in the witness box that the screams were fearful and emotional but his initial statement to police did not mention this.
The defence strategy was enough to make you think twice about doing your civic duty and reporting such things to the police.Having to testify under oath and being subjected to cross-examination must be one of the most nerve-wracking things a person can endure.
The commission of inquiry into state capture has had a riveting few days of testimony as former deputy finance minister Mcebisi Jonas and former ANC MP Vytjie Mentor gave details of their interactions with the Guptas, and Ajay Gupta’s offer to make them both ministers.
While Jonas’s evidence was concise, Mentor’s was a meandering journey from China to Saxonwold via Hong Kong, Cape Town, OR Tambo International Airport and Midrand.
Judge Raymond Zondo was provided with unnecessary descriptions of the luggage of one of the Zuma wives in Hong Kong, the ornate décor of a bathroom in the Guptas’ Saxonwold compound, and what type of curry Mentor prefers.
Mentor is an animated character with a colourful social media presence. She clearly struggled to limit her testimony to pertinent details and acclimatise to the legal context.
Mentor made several curious claims and will probably have difficulty making aspects of her story stand up if she is subjected to cross-examination.
But there are important factors about the inquiry to consider.
Constitutional law expert Pierre de Vos says the commission is an inquisitorial process, not a court of law, so the same rules do not apply. He says the witnesses are not expected to prove or disprove anything but their versions need to be corroborated.
Something like the exact identity of which Gupta brother Jonas and Mentor spoke to might not need to be established as in a court, but the witnesses need to be shown to be credible, said De Vos.
Obviously, the commission should not turn out to be a big gossip session.
The witnesses are essentially called to assist the commission to discover what happened, not to prove anyone’s guilt. This is the reason those implicated in evidence do not enjoy the automatic right to cross-examine witnesses and have to apply to do so.
The commission’s legal team wants Zondo to set conditions on those wanting the “privilege” to cross-examine to ensure that implicated parties make themselves available to testify.At the end of the process, the commission must answer the questions set out in the terms of reference, including whether the phenomenon of state capture did exist.
It is probably quite difficult to prove a phenomenon legally. In this case, much of what happened was perpetrated through the operation of a shadow state and was therefore concealed from the public.
While the media, civil society and academics have done a lot to “join the dots”, doing so through a legal process is a lot more arduous.
Many people are already making summations based on the evidence of the witnesses so far and what can be expected from those lined up to testify.
But with the commission expected to run for up to two years, it is impossible to draw conclusions yet. All the witnesses would have different experiences and ways of processing what happened to them.
Mentor’s encounter with the Guptas allegedly took place in 2010 and she only spoke out about it after Jonas came forward in 2016. She has no records to prove what happened and is clearly fuzzy about some of the details because of the time lapse.
Jonas spoke out five months after he allegedly met Ajay Gupta and his version was recorded by his lawyers when it was fresh in his mind. He was also interviewed by former public protector Thuli Madonsela a few months after that. His 2016 media statement, transcript of the interaction with Madonsela and affidavit to the commission are consistent. 
It will be fascinating to see whether former president Jacob Zuma, his son Duduzane and members of the Gupta family come to the commission to testify and how they corroborate their versions.
What this inquiry should not do is discourage people from testifying. Those who witnessed the systematic plunder and kept silent up to now should feel assured that they will not be lambs to the slaughter if they step forward.
With all the high-powered legal teams represented at the commission and the process playing out live on television, testifying could be unnerving. But the commission should not instil a sense of foreboding among potential witnesses, as the Pistorius trial did. 
Ultimately, everyone should be driven by a common purpose to expose the rot and restore the integrity of the state.

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