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Insight: Table Talk

State capture probe could have been done in six months: Thuli Madonsela

Former public protector says Gupta assets should have been grabbed while they were here; hopes commission's evidence can be sent straight to the NPA

07 October 2018 - 00:00 By CHRIS BARRON
Former public protector Thuli Madonsela is now a professor of law, holding a chair in social justice at Stellenbosch University.
Former public protector Thuli Madonsela is now a professor of law, holding a chair in social justice at Stellenbosch University.
Image: Esa Alexander

Thuli Madonsela, whose State of Capture report in 2016 led to the Zondo commission, wanted the inquiry into state capture to be done and dusted, with its findings and recommendations wrapped up, in 180 days, she says.

Deputy chief justice Raymond Zondo applied to the high court for a two-year extension over and above this, so either he wasn't seized with the same sense of urgency, or the former public protector and now law professor at Stellenbosch University was being wildly optimistic.

Why did she think six months would be enough?

"Because I've been an investigator for about seven years. I know what it takes to design an investigation, execute it and make findings."


Madonsela, described by former British ambassador to SA Robin Renwick as "the person who saved SA", has a soft voice and gentle demeanour, and it's easy to see how the then president Jacob Zuma might have been beguiled into entrusting her with the public protector's job in 2009.

Who could blame him for thinking she'd be putty in his hands?

But question her judgment, in this case on the amount of time she'd have needed, and you strike a rock.

"I'd have been able to do it within that space of time. We'd have completed it in six months if we had the resources."

This is not an indictment of Zondo and his team, she says.

"I was public protector and trained in such investigations. Before that I was a researcher."

There's a difference between being a lawyer and being a researcher, she says.

"As a researcher your job is fact-finding. This sharpens your teeth. So I am trained in such investigations. I know how to investigate corruption."

Former public protector Thuli Madonsela says corruption is a crime, and the first thing you need to do when you start a crime investigation is to secure the crime scene.
Former public protector Thuli Madonsela says corruption is a crime, and the first thing you need to do when you start a crime investigation is to secure the crime scene.
Image: Esa Alexander

The commission was established only in May. Staff selections were held up by the apparent need for them to be vetted by the State Security Agency.

"I wouldn't have recommended that," she says. "As our investigation revealed, the State Security Agency was part of the tainted machinery and obviously would not have been unhostile to this process."

The vetting "took forever".

"That was unfortunate. I don't think vetting was necessary."

Especially when speed was "always of the essence".

"Corruption is a crime, and the first thing you need to do when you start a crime investigation is to secure the crime scene. The longer it takes to start the process the harder it is to secure."

Securing the crime scene in this case would mean securing data, ensuring computers are not thrown away and making sure no-one sends money out of the country or sells companies that may have been involved in crime or bought with the profits of crime.

The delays mean that assets and money have been taken offshore and a lot of data will have "dissipated". Much of it is in computers, so you need to secure the hard drive, she says.

"There's a course called 'sharpening your teeth' where you're taught all this."

Then the long, drawn-out testimony of the witnesses.

"Instead of worrying about whether [former ANC MP] Ms [Vytjie] Mentor can remember what she ate that day - I can't remember what I ate last week, and she has to remember what she ate in 2013 and we make her look ridiculous because she can't - or whether she can remember if it was Ajay or Tony or Atul [Gupta] . it doesn't matter."


The pain could have been avoided and time saved, she says.

"With data triangulation we wouldn't subject Ms Mentor to this ridiculous test. We'd use modern technology."

Just in case you think she's criticising the good judge, she quickly, in her soft, impeccably polite, ever-so-slightly amused way, puts you right.

"With due respect, although I have my views on how such investigations need to be done, it would be grossly improper of me to start questioning the methodology and discrediting the approach of the commission."

She says Zondo never asked her how she thought she'd be able to do the job in six months when he felt he needed six months and two years.

"I supported them giving themselves a two-year extension with the understanding that the two years provide just an outer deadline to make sure they're not put under pressure. I still hope that they can finish this process in a year."

Even that seems long given the evidence the commission already has in front of it, contained in her 355-page report, 200,000 Gupta-leak e-mails, parliamentary inquiries and extensive reporting by some of the best investigative journalists in the world.

"That's not evidence, that's data that needs to be converted into evidence. Its authenticity needs to be verified."

She authenticated a lot of it in her report, but she's "a different body", she says.

"It would have been a different story if they had requested me to present my evidence. It would have gone in immediately as pure evidence, then they would have cross-examined me about how I got that evidence."

That could have speeded up the process, she says.

Should the commission have called her?


"I don't want to say what they should have done. It would be grossly inappropriate if you're justice Zondo and you read that the person who did half the process is now playing God and saying you should be doing this her way."

Having said that, she believes it is "important for the stability of the South African state" for the commission to finish its work as quickly as possible.

"Because there is prima facie evidence in my report that elements of the state were captured and repurposed to drive the process of accumulation by a particular family.

"If that is true it means the rot will continue for the next two years or beyond."

Zondo needs to authenticate the prima facie case that was made in her report and determine if it is true, she says.

"We need to stop the rot. Also, if we take too long we won't get any of the money back."

Repatriating it from Dubai or wherever is already going to be extremely complicated.

Based on the anecdotal evidence she had, a lot of the Guptas' money was in cash, not all of it was in banks.

Zondo also needs to get on with it because "it's important that we restore the rule of law. If leaders are seen to get away with breaking the law then everybody dances around the rule of law."

There are signs of this wherever you look, she says.

"There is a growing lawlessness, and you want to put an end to that."

While moving ahead with haste the commission "wants to be sure" that once its findings are made people will not take them on review, so that they can be implemented without delay.

She says one of the reasons she decided there must be a commission of inquiry is that she wanted to subject the issue of state capture to the court of public opinion.

It gives people an opportunity to hear those involved speak for themselves

"People may not be sophisticated in terms of understanding legal principles, but people know the truth. When it is finished they will know what happened."

We want someone (NPA boss) who on the one hand is knowledgeable but who on the other has avoided capture

She hopes evidence will be ready to go straight to the National Prosecuting Authority (NPA).

"It is the concern of most of us that not just the NPA but a lot of the law enforcement and public accountability institutions may have been captured."

To limit the danger of captured elements within the NPA delaying the prosecution process, she says President Cyril Ramaphosa needs to quickly appoint a national director of public prosecutions.

"I wish it had happened yesterday. I do hope the delay is due to the fact that the president is selecting the most trustworthy, the most competent and the least conflicted person."

She suspects it is taking so long because there "isn't an obvious person" who satisfies these criteria.

"We want someone who on the one hand is knowledgeable but who on the other has avoided capture. There isn't a big pool to choose from."

She says the most startling revelation for her so far is that the banks met the ANC at Luthuli House over their closing of the Gupta accounts. She hadn't known about that, but she doesn't believe that on its own this is evidence of ANC complicity in state capture.


The ANC "bullied" the banks, which she says was "not right". But it wasn't the first time the ANC had "bullied business".

She has a fit of the giggles when asked to respond to the assertion by Zizi Kodwa, ANC leader in the presidency, that the ANC was not on trial because it made the Zondo commission happen, so how could it be on trial?

"'The ANC cannot not be on trial,'" she says. "If it is not on trial for complicity then it is on trial for sleeping on duty. It's about accountability."

She doesn't have enough data to say that the ANC was aware it was aiding and abetting state capture by the Guptas when it bullied the banks.

"There's this narrative that says when a big entity goes down, in this case a TV station and media house, there are so many families tied to that, and the impact on an economy that is already under enormous pressure is something that as the government you can't ignore. You might hate the Guptas, but you might hate joblessness more, so you intervene.

"I don't have enough information to know what the ANC leadership knew and what they didn't know. But I do know they had an opportunity to investigate and they chose not to. Why, we don't know. They had an opportunity to support a commission of inquiry before a court of law."


SA would have been in a different space today if the ANC had given her the support and resources she requested, she says.

For a start, many of the assets the Guptas have sold, hidden or moved offshore would still be here.

"We would have concluded this process while Gupta assets were still in Gupta hands."

She says she's become "a little bit cynical" about the emphasis in the criminal justice system on sending people to jail. "When somebody has taken money from communities the primary concern should be getting that money back, with interest."

Former finance minister Pravin Gordhan, now minister of public enterprises, estimates that state capture cost the economy R100bn.

"Think how we could leverage those stolen resources to earn more resources. For me the greatest pain is that the bulk of those resources has gone offshore. People go to jail and then come out and enjoy the fruits of their crime.

"My priority if I were still in this process would be to get back the money from all the roleplayers. Everything, including your house, must be taken. That will send a far stronger message that crime doesn't pay than just sending people to jail."

Madonsela turned down top job offers from the World Bank, the United Nations, several South African universities and a major law firm, in favour of chairing the faculty of social justice at Stellenbosch.

One of her goals is to promote "democracy literacy" among students so that no longer will they be "conned" by corrupt political leaders.

The students at Walter Sisulu university who cheered Zuma recently did so because "they don't understand how democracy works. We need young people who are democracy-literate so that allowing somebody who let them down so badly to come back as a hero will never happen again. We need to inculcate democracy literacy so that people can see when things go wrong and step up before things go hopelessly wrong. When the red flags start showing, people should jump. Not when the boat has sunk."


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