Yes, the high court should give the state capture commission more time, but this should be the final extension, the high court heard on Tuesday.
Deputy Chief Justice Raymond Zondo urgently went to the Pretoria High Court for an extension to the term of the state capture commission, which is supposed to end this month, but is nowhere near done with its work.
Zondo has asked the court to give him until the end of December to complete the work of the commission and to finalise his report. No one opposed his application, but civil society organisation the Council for the Advancement of the South African Constitution (Casac) wanted the court to order that this would be the last and final extension given.
In court on Tuesday, Zondo’s counsel, Paul Kennedy SC, argued against an order that would make the extension a final one. He said that, based on what the deputy chief justice knew right now, Zondo reasonably believed that he could finish up by December. But it was so hard to predict what could still happen, said Kennedy. A new and unexpected witness could emerge for example, and if the term was set in stone it could end up defeating the whole purpose for which the commission was established.
It would also be wrong, in principle, to fetter a later court’s ability to decide whether or not to grant a further extension, he said.
But Judge Wendy Hughes suggested that Zondo seemed, even on the 10-month extension, “on the fence, wishy washy.” She asked Kennedy whether he had made out a case for the extension, when it was so unclear whether 10 months would indeed be enough and so unsure about what still needed to be done.
To this, Kennedy said that it would be reckless for Zondo to say that he can definitely finish by December. “He hopes that he can do so, he thinks that he can do so. But that is on the information that he has now [and] investigations are ongoing.”
Casac’s counsel, Michelle le Roux, argued that the commission – as important as it is – is not the only body able to do the work of dealing with the ravages of state capture. Yet while the commission is ongoing, vast state resources are being directed its way, at the expense of the other bodies – like the police and the National Prosecuting Authority. “It is vital for the Commission to complete its work so as to enable other institutions to receive better allocations from the fiscus, said Casac’s Lawson Naidoo in an affidavit.
Naidoo added: “The Commission is an important site for accountability and revelations of how state capture has occurred and corruption flourished. But its limited remedial powers are no substitute for robust law enforcement.”
The commission had also decided it would not be issuing interim reports, which would allow action to be taken on discrete issues, said Le Roux. “Every day we have witnesses come in, but then there’s this sense of impunity that follows, because there is no law enforcement,” she said.
She suggested that the term be extended to the end of March 2021 (instead of December 2020, as asked for by Zondo) and that it be ordered to be a final extension. To cater for Zondo’s concern of a “guillotine” end-date, the order could include a proviso that there could be an extension for “unforeseen circumstances,” suggested Le Roux.
But Kennedy said, while he did not object to the end of March 2021, he did object to making the extension final. Even an unforeseen circumstances proviso would be problematic, he said, because Zondo can already foresee the possibility that he may overrun; and that the court on the next occasion would have its hands tied. “The very nature of the beast is that it is difficult to predict,” he said.
Kennedy added there was nothing to stop law enforcement agencies from investigating what came up at the Zondo commission.
He said the order Zondo sought would not mean a free ride if he had to come back to court once again – he would still need to motivate for and justify an extension. Zondo realised that the “eyes of the court and the public” were on him.
Judgment was reserved.