As the Commission of Inquiry into State Capture gets into its second week, the real question is whether these commissions aren’t a waste of time and money. The State Capture Commission comes a few weeks after Judge Ian Farlam, who was overseeing the Farlam Commission into Marikana, joined the Institute of Security Studies (ISS) in releasing a new report into Marikana and extremely crucial evidence about the events that took place on the fateful day when fourty-four people were killed in Marikana.
The report by ISS, which was based on the evidence and photographs submitted to the Farlam Commission, said the miners had not provoked the police and there was no evidence that they had shot at the police. The report says while the Farlam Commission refuted the testimony of the police, it did not provide a significant account of what happened at Marikana.
Farlam had made recommendations that the Independent Police Investigative Directive (IPID) reconstruct the scene under the guidance of public prosecutors to establish what had happened and hold to account those liable. To date this has not been done.
But it isn’t just the Farlam Commission that has proved to be completely useless. South Africa is littered with these commissions.
Harms Commission Of Inquiry & Timothy McNally
After six months of investigating clandestine operations of the apartheid regime, The Harms Commission found there was no conclusive evidence that the National Party systematically murdered and terrorised liberation movements. Judge Louis Harms who was heading the Commission rejected the testimony of three former security policemen who confessed to have been involved in hit squads.
The Harms Commission came just three days after another apartheid government commission headed by Timothy McNally, the attorney general of the then Orange Free State, dismissed allegations by Dirk Coetzee, a retired security police captain, and two black policemen, that they had served in officially approved squads to assassinate, kidnap or harass members of the African National Congress and other anti-apartheid campaigners.
Mr. McNally’s findings described the testimony by Coetzee, and the two policemen, Almond Nofomela and David Tshikalange, as “untruthful,” “groundless” and “unreliable.”
The Defense Minister at the time, General Magnus Malan, said that the South African Defense Force, to which the Civil Cooperation Bureau belonged, had emerged with honour from the Commission.
We however know from the Truth and Reconciliation Commission that these men, who testified to have been part of hit squads were indeed telling the truth.
Seriti Commission Into Arms Deal
The Seriti Commission into the Arms Deal became a farce when some of the key “whistleblowers”, who had for years said they had information about the corruption in the arms deal, refused to testify. It didn’t help the credibility of the two whistleblowers, former Capetown Mayor Patricia De Lille and Terry Crawford Browne, when De Lille distanced herself from his allegations that it was the late Winnie Madikizela Mandela who was one of the “concerned MPs” who leaked information on the 1999 arms deal.
Much of the evidence that will come out of the State Capture Inquiry will be “he says, I say” evidence. Phone records of some of the key witnesses may well show that the accused and their accusers met and even called each other on specific dates mentioned, but without the content it will be difficult to prove wrongdoing.
Ultimately, when all the sensationalism of the inquiry is past, Judge Zondo presiding over the State Capture Commission will still have to sift through the evidence and make recommendations to those in charge of our criminal justice system to take over. The police will have to open dockets and the National Prosecuting Authority (NPA) will have to determine if the matters are prosecutable.
Which then brings me to the point of whether we need the commission. Why couldn’t we have saved the country the time and money and gone directly to the NPA to ascertain if these matters are prosecutable and if they are go to courts of law to determine the if the accused people are guilty.
The commission is not a court of law and a person is presumed innocent until a court of law pronounces otherwise.
It’s almost a year-and-half since the Gupta bribery allegations surfaced and the many other allegations of corruption involving state entities, termed state capture, followed. The State’s case against the Guptas in the Vrede Farm case in which the Guptas are said to have partnered with the Free State government to siphon funds meant for black farmers, is falling apart. Despite having filed charges early this year, the NPA has not been ready for the hearing. In the latest round, the Gupta family lawyer requested the judge to dismiss the case. The Public Protector’s report into maladministration at Vrede Farm Vrede Farm
And the question again is whether it would not have been better for the law enforcement to have established the facts against the many allegations made and gone to court instead of the R250m that will now be spent on a commission which will most likely yield very little.
With the Guptas now out of the country and former President Jacob Zuma out of his seat, the only winners will be the lawyers representing the many people appearing before the commission, commercial media which will have a field day selling their products on the back of all the allegations and the public will be thoroughly entertained. The losers will be the ANC and the private sector organisations whose rot, alleged or factual, will be on public display.