An introduction to the Zondo Commission in South Africa

The findings of the Commission are likely to have a profound impact on the activities of public authorities in the country and on private companies and individuals that operate in South Africa and abroad too.

Background

The work of the Zondo Commission is focused on the period in which Jacob Zuma was the president of South Africa, but it is necessary to look back before May 2009, when Zuma became president, to understand the full context.

In November 2005 an indictment for alleged corruption was filed against Zuma. The case was struck off the judicial roll in September 2006 but was revived in December 2007. In September 2008 the charges were found to be unlawful, but that ruling was appealed and subsequently overruled in January 2009. In April 2009, however, the head of the National Prosecuting Authority announced that the charges had been dropped. The decision paved the way for Zuma to take office the following month.

Zuma’s nine-year reign as president was dogged by corruption scandals. The most significant theme that emerged was the proximity between Zuma and the so-called Gupta family. Allegations followed that the Gupta’s had “captured” the South African state through the influence held over Zuma. This was dubbed “state capture”.

The initial investigation

As allegations of state capture mounted in South Africa, so too did calls for an independent investigation. A series of complaints prompted then public prosecutor, advocate Thuli Madonsela, to open an investigation in March 2016.

Madonsela had previously released a report about inappropriate expenditure by Zuma on his Nkandla homestead in 2014.

As Madonsela’s time in office came closer to an end, she faced a race against time to complete her investigation into state capture. On 14 October 2016 – the final day of her tenure –  she completed her report. The report was not made public at that stage as Zuma had filed an urgent application to block its publication. He lost this legal battle and on 2 November 2016 the report was published.

The formation of the Zondo Commission

It was evident from the report that Madonsela did not have the time or resources to properly investigate state capture. However, she recommended that Zuma, in his capacity as president, appoint a judicial Commission of Inquiry to conduct a full investigation. These recommendations were found to be binding on Zuma after he lost a court bid to set-aside the report. This meant Zuma was effectively forced to appoint a Commission to investigate himself and other persons alleged to have captured the state.

Justice Raymond Zondo was selected by Mogoeng Mogoeng, the then chief justice of the Constitutional Court, to chair the Commission. The establishment of the Commission was announced on 9 January 2018.

Zondo went about establishing the framework needed for an inquiry, including the appointment of a legal team, investigation team and secretariat. Separate teams were established to investigate and deal with core issues and specific institutions, and the lengthy process of evidence gathering began. The first hearing of the Commission took place on 20 August 2018 and the last hearing took place on 12 August 2021. The wider evidence gathering process entailed the following:

• The Commission conducted formal hearings on more than 400 days during which over 300 witnesses testified. The official transcribed record of the hearings comprises of 75,099 pages.
• A total of 3,171 formal summonses were issued in terms of which persons were compelled to provide the Commission with affidavits, documents and/or other records. In addition to this, the Commission also issued 1,380 informal requests for information (or RFIs).
• Through the above processes, a total of 1,731,106 pages of documentary evidence was prepared and presented to the Commission.
• Not all of the evidence gathered was formally presented to the Commission. The total amount of evidence that is available digitally reportedly amounts to a petabyte of data. This is the equivalent of 1 million gigabytes.
• The evidence gathered implicated approximately 1,438 persons.

The Zondo Commission reports

The work of the Zondo Commission has reportedly cost the state over R1 billion ($66 million) and the process has spanned over four years. Zondo has chosen to release the report in parts.

Part one was released on 4 January 2022. Part two was released on 1 February 2022. On 1 March 2022, Zondo released part three with little prior notice and he announced that the further release would be done in parts four, five and six prior to the end of April 2022.

Whilst Zondo has recommended that specific persons should be criminally charged, investigated further or subject to other sanctions, in part one of the report he set-out important systemic recommendations for reform aimed at enhancing and changing the South African anti-corruption landscape so that the state can never again be captured.

Our analysis

Pinsent Masons has been analysing the Zondo Commission’s critical recommendations with a view to outlining what they mean in practice for organisations.

• The prospect of reform around political donations in South Africa
• Could US-style bounties boost South African whistleblowing?
• The case for deferred prosecution agreements in South Africa
• South Africa anti-corruption charter ‘first step’ towards meaningful change
• Zondo and the case for an independent anti-corruption agency in South Africa
• Ensuring the independence of South Africa’s new anti-corruption agency
• South Africa needs a corporate offence of failing to prevent bribery