By: Edward James - Partner Pinsent Masons

The release of a progress report highlighting the implementation of recommendations made by South Africa’s Zondo Commission of Inquiry in State Capture has received a mixed response, with President Cyril Ramaphosa believing his government is making progress and doing enough while Raymond Zondo, the former chief justice and head of the commission, has criticised the government’s course of action.

Now, an expert says that although there has been progress in addressing issues brought to light by the commission, more needs to be done to win back the public’s trust in government institutions. The commission was created in 2018 to investigate allegations of undue influence on government decisions by powerful individuals and networks, and fraud and corruption within the public sector.

Edward James, an expert in anti-corruption at Pinsent Masons, said: "The work of the Zondo Commission was unprecedented. It sat for 400 days of hearings during which over 300 witnesses gave evidence. Beyond that, the vast teams of investigators gathered an immense amount of evidence. They issued 3,171 summonses on top of 1,380 requests for information,” he said. “Approximately 1,731,106 pages of documentary evidence was prepared and presented to the commission. This was the tip of the iceberg, with the total amount of digital evidence gathered totaling one petabyte, which is equal to about 1 million gigabytes." 

Of the 218 recommendations for criminal investigation, prosecution and asset recovery made by the commission, just ten have been finalised with verdict, conviction, acquittal, withdrawal or terminated investigation; 36 cases are either enrolled, the trial is in progress or partially finalised; and another 111 are “under active investigation with regular progress updates”, according to the report (52-page / 990KB PDF).

James said: "The apparent purpose of the commission was two-fold - to bring about accountability for those involved in corruption and to prevent a re-occurrence of state capture - and the vast volumes of reports included detailed analyses of evidence of wrongdoing. Approximately 1,438 people were implicated by the evidence gathered. Whilst the individual alleged acts of wrongdoing obviously need to be tested through the criminal justice system and people have a right to defend themselves, the apparent lack of progress is clearly an issue,” he said.

“To put things into sharp focus, the presidency has only reported one person imprisoned, with two suspended sentences and a fine for the now-deceased Dudu Myeni. The only person that has been put in prison is Daniiel Mthimkhulu, who was charged for essentially lying about his qualifications. He was a low-level player and not even charged for corruption."

Zondo’s criticism, according to media reports, included that Ramaphosa has appointed politicians to his cabinet who were implicated and had serious findings made against them by the commission, despite the president accepting those findings. Ramaphosa, in turn, has resisted responding to the criticism, with a spokesperson stating that a public exchange between the two would be “very unpalatable”, but defended his government’s handling.

James said: "As Zondo has pointed out, implicated persons remain in positions of power, which could have diplomatic ramifications. Recently I commented on the move by the US government to progress a law that may see senior government officials and ANC leaders sanctioned. The specific US law relied on will require credible evidence of corruption or human rights abuses. If the US proceeds, they may seek to rely on the evidence of Zondo as a starting point,” he said. “Whilst it is important to recognise that the government has taken some positive steps to reform, clearly it has not done enough to credibly win back public trust. As we approach the third anniversary since the final report was issued in October 2022, the biggest question the public has is why no high-profile actors are in prison.”