On a November morning in Pretoria, South Africa’s political elite nervously awaited the imminent arrival of a bombshell report that threatened to unmask corruption at the highest levels of the state.
Initially delayed by President Jacob Zuma’s court actions, the “State of Capture” report documented backroom meetings, phone calls and business deals between the president’s inner circle and the Gupta family, offering up an unflattering portrait of a young democracy assailed by compromised leaders and avaricious businessmen.
But while the report was seen as a significant blow to the African National Congress (ANC), opening a new era of scrutiny on the scandal-hit administration of Jacob Zuma, it also represented a triumphant closing chapter for Thuli Madonsela, the dogged lawyer who cut her teeth writing South Africa’s constitution and who over seven years as public protector led investigations into some of the most significant scandals in her country’s recent history.
Now free from the role which brought her international acclaim, Madonsela tells African Business about the need for a judicial inquiry into her findings, her fears that vital evidence is being destroyed, and how a preoccupation with the fate of the president risks undermining the report.
“I think there was a serious response from both government and civil society but it was not adequate,” says Madonsela.
“I think the state capture allegations have damaged the credibility of President Zuma and the Gupta family and his son [Duduzane Zuma] who is in business with the Gupta family. And the businesses that are co-owned by the president’s son and the Gupta family have suffered some brand damage. The only way they could have been saved if these allegations are not true would have been an immediate judicial inquiry where the accusers openly present their case and the accused openly present their difference. And that can still be done,” she says.
The trail is getting colder
On 22nd June, Zuma said that he was moving “as fast as possible” to set up an inquiry. But as every week goes by, delays could prove more and more costly. Madonsela says that a further pause will give breathing space to those seeking to destroy vital evidence.
“My concern as an investigator is two-fold, one is that these guys are not sitting, they are destroying evidence. By the time you get an inquiry it would be very difficult to get evidence. I’m certain that computers have been thrown away, cell phones have been thrown away which we would have collected, and therefore the longer it takes to conduct an investigation of criminality – as corruption is a crime – the more difficult it is to find the information, as the trail gets cold every day.
“By the time you conduct an investigation not only will you have a very cold trail of nefarious activities but the damage to the economy and government would have been big.”
“It was inadequate in two ways – first is the fact that the focus was on ‘Zuma must then resign’. I think it strengthened the president’s resistance to the actual investigation because it put the cart before the horse. Secondly, there hasn’t been an adequate narrative on what state capture means for the average person.”
For some, the call to focus less on Jacob Zuma and more on the wider implications of state capture might be an odd request given the centrality of the president to the political and economic malaise afflicting South Africa. Indeed, the “State of Capture” report focused heavily on Zuma and his family’s personal links to the Guptas, saying that the latter may have had foreknowledge of ministerial appointments, including the sacking of respected finance minister Nhlanhla Nene. Yet Madonsela believes that a rigorous, evidencebased judicial inquiry – rather than shrill calls for the president’s head – will command the crucial support of senior ANC figures.
Madonsela believes her calls for an immediate inquiry have been strengthened by a tranche of emails leaked this May, which further reveal the extent of the Gupta family’s involvement with the state.
Her call for immediate action reflects Madonsela’s evident frustration with Jacob Zuma after years of wrangling with him. Despite her history of constitution building, Madonsela became a household name after her investigation into the president’s use of public funds at his private Nkandla estate. In a damning 2014 report, Madonsela ordered Zuma to repay some of the funds – something he did only after a unanimous 2016 ruling by the Constitutional Court.
Even with Madonsela out of office, her recommendations continue to irk the president. Her suggestion that Zuma could approve but not select the inquiry judge has been opposed by Zuma as an infringement of his presidential powers. She remains scathing of his response to the affair, particularly his appearance at a Gupta-organised event in April.
“Normally a company president who has people that are investigated for stealing from his company would not be the guest of honour at their public event. So the way things have happened since then confirms my feeling that justice should not just be done but should be seen to be done.”
The exhausting running battles with the president highlight the uniquely powerful mandate now assumed by the previously obscure public protector. In June, Madonsela’s successor Busisiwe Mkhwebane sparked concern with a controversial recommendation to amend the constitution to change the Reserve Bank’s powers.
The battle continues
Madonsela says that she is relieved to have taken a back seat from the increasingly high-pressure role, but calls for citizens and journalists to pick up the mantle.
“I don’t really wish I’d had a day longer but what I do wish to see is people creating a portal or drop box where everything related to state capture is captured. Because as an investigator I can smell evidence and I feel the important thing is to pull everything together.”
Despite her long, lonely battle against South Africa’s vested interests, Madonsela retains a fierce belief in the Constitution and the power of ordinary citizens committed to upholding it.
“I’m confident that the pillars of democracy in South Africa are strong enough to withstand the test of time and any headwinds that may come… much as we are going through the ‘messy middle’, there is an emergence of the right kind of leadership that is able to turn our losing streak into a winning streak.”