STATE CAPTURE INQUIRY | Prosecuting culprits will be difficult

Organisation Undoing Tax Abuse (Outa) holds a flag during a picket.
Organisation Undoing Tax Abuse (Outa) holds a flag during a picket.
Image: Alon Skuy

The commission of inquiry into state capture might be able to dig up the truth about influence on those in power and abuse of state resources‚ but there are doubts whether evidence unearthed could lead to the successful prosecution of culprits.

The inquiry on state capture‚ led by Deputy Chief Justice Raymond Zondo‚ began on Monday with high expectations that South Africans may finally get to know how this web of corruption operated and how billions were looted from the state.

But visiting associate professor of law at Wits‚ Advocate James Grant‚ says there could be a problem when it comes to taking further action against those who have presented damning evidence that could implicate themselves and others in the looting.

Grant said the Commissions Act‚ which is the legal basis for the institution of the commission‚ relied on law of privilege which is based on a case which was in the Constitutional Court in 1996.

“It says there are two types of evidence – direct evidence. This is like testifying that ‘I murdered him’. The weapon that I used can be found at a certain place. If the police then go and find that weapon in that place that only you could know‚ it is damning but it is derivative evidence. In other words‚ it is different from what you have said.”

Grant said the police would have to do their own subsequent investigations based on testimony from the commission.“The first [direct evidence] cannot be used against you‚ but the second can be used against you under our law. If the police went and found the murder weapon. The law as it stands in our country is that they can introduce that evidence but the courts have a discretion to exclude it if they think it is unfair‚” said Grant.

He explained that when former president Jacob Zuma released regulations for the Zondo commission it simply said that evidence could not be used against the witnesses.

There was an outcry over that and later President Cyril Ramaphosa released new regulations.

“But when changing the regulations‚ the new regulations simply deleted what is supposed to happen with derivative evidence‚” said Grant.

Grant said if evidence is presented and police later are able to find tangible proof of what was presented to the the Zondo commission‚ there will be differing arguments as to what should happen to the witness who gave it.

“Yes‚ the commission might assist us in finding the truth but there can be no consequences based on any information that can be gleaned at least by virtue of what the person actually says. There is also a massive question mark hanging over whether we can rely on what we discover based on what somebody says.”

Grant said despite this question mark over derivative evidence‚ he has confidence that Deputy Chief Justice Zondo will do a great job in unearthing the truth about state capture.

“I think he is going to be thorough. He will go after the truth and he is going to be relentless. He will come out with at least very useful findings. The problem is whether we will be able to use them to punish anybody.”

The commission of inquiry into state capture will begin on August 20 2018. Sunday Times editor Bongani Siqoko and Tiso Blackstar Group associate editor of analysis Ranjeni Munusamy take us back to the beginning and discuss how the State Capture story unfolded. Music: Turn On - RW Smith https://youtu.be/EzIBvLO8V9s

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