Has the criminal justice system been captured?

Picture this: it is 2029, South Africa has just emerged from a hotly contested general election. The Electoral Commission of South Africa has formally announced the results.

Former president Jacob Zuma’s MK Party leads the dashboard, with 40% of the vote, followed by the ANC with 30%. Behind the scenes, furious negotiations are taking place between the two parties over how the government will be constituted. 

Political analysts step in to unpack the outcome of the election and stagger as they conclude that South Africa is right back in 2014 — the height of the state capture era that gutted state-owned companies, undermined the economy, directed billions of rand in taxpayers’ money to criminals and orientated the criminal justice system towards targeting political opponents of the sitting president. 

In the scenario imagined for 2029, the players are essentially the same, despite being in two separate political parties. They are no different from those who actively brought the country to its knees through the most audacious illegal extraction programme, or at least stood by, watching passively. The opportunity for a repeat of that dark time is now not only in the realm of the possible, it is becoming ever more likely. 

Why is the South African state still vulnerable to this rent-seeking project, after all those hours spent on unravelling it at the state capture commission chaired by then deputy chief justice Raymond Zondo? 

The commission heard evidence from 300 witnesses during 400 days of testimony, compiled more than 1.7-million pages of evidence and extracted a petabyte — 1-million gigabytes — of information. On June 22 2022 it handed President Cyril Ramaphosa a final report of six parts, consisting of 5,000 pages.

Yet there have been few to no consequences for individuals who were implicated in wrongdoing, and the government has failed to put in place the necessary and recommended structural reforms to prevent a recurrence. South Africa need not wait for a possible 2029 scenario where Zuma-style state capture returns — because it never went away.

From the corruption and whistleblower killings at the Tembisa Hospital and the Ekurhuleni metro, to the police and spy wars being uncovered in the Madlanga commission and parliament’s ad hoc committee probing allegations by KwaZulu-Natal deputy police commissioner Lt-Gen Nhlanhla Mkhwanazi, South Africa is witnessing the evidence of a refinement of state capture, along with a descent into a mafia-style state — a “shadow state”, as expressed in the title of investigative reporter Jeff Wicks’s recent book on the corruption at Tembisa Hospital.

In short, things have got worse — or, at least, much more has been exposed that was previously hidden.

Ramaphosa is a process man, according to political analyst Mpumelelo Mkhabela — all process and no punch. And that is why, three years down the line, the recommendations crucial to reforming the system that enabled state capture are nowhere near completion and are evidently facing pushback from some ANC ministers and the bureaucrats beneath them.

To what extent have Zondo’s recommendations been implemented? The FM spoke to Jonathan Timm, head of citizen-based monitoring in the department of planning, monitoring & evaluation, located in the presidency. He headed the team which distilled the voluminous Zondo report into 60 actionable reforms, which, if implemented, could fundamentally transform the state and prevent future state capture — whether again from inside the ANC, or from MK or any other party.

An integrated task force, led by the National Prosecuting Authority (NPA), was set up to tackle recommendations on criminal investigation, prosecution and asset recovery. It provided feedback to the presidency on 218 recommendations spanning various state institutions identified by the commission. 

So far 10 cases, or 5%, of those identified have been finalised or investigations into them have been terminated; 36, or 16%, of cases are enrolled with their trials in progress; 111, or 51%, of the cases, are under investigation; nine, or 4%, are delayed; 35 cases, or 16%, are delayed due to extradition processes; and in 17 cases, or 8%, no investigation has been initiated or “authorised”. 

In effect, there is little progress on the prosecutorial front. 

Analysts agree that asset recovery has been progressing well, with R10.9bn in assets recovered as at March 31 2025 and R10.6bn in preservation orders. But if there is sufficient evidence to seize a suspect’s assets, why no arrests?

Disciplinary and regulatory action has been taken against individuals by various professional bodies. For example, Yakhe Kwinana, a former SAA board member who contributed to its decline, was barred from practising as a chartered accountant by the South African Institute of Chartered Accountants and fined R6.1m. Zondo recommended that she face criminal prosecution, but this has not happened. 

The presidency report released in July this year shows that no action has been taken against members of the executive against whom adverse findings were made. 

“The president committed to undertaking a review of the positions of those members of his executive implicated in wrongdoing in the report and to determine, on a case-by-case basis, in line with his discretion and obligation to observe the principle of legality and to act rationally, whether any action ought to be taken,” the report says.

“President Ramaphosa reaffirmed in a parliamentary reply on March 19 2024 that any action against members of his executive will be informed by the outcomes of the processes undertaken by law enforcement.”

Here is Ramaphosa’s achilles heel — politically, he continues to mediate between actors in the ANC. While many describe it as “Zuma’s ANC”, this is a fallacy.

The ANC today contains many of the same individuals who shielded the former president during the state capture years. Ramaphosa himself was Zuma’s deputy from 2014.

Protecting individuals now means protecting the ANC, and Ramaphosa, as its president, has openly elevated protecting the party over the country. His allies argue that it is not in his nature to be “dictatorial” about the reforms required to fix the structural defects that enabled state capture, but this argument misses the point. As head of state, particularly in his second and final term, it is his duty and responsibility to do so, instead of spending endless hours navigating the complexities of ANC politics.

There are at least five other members of the executive with clouds over them — not all linked to state capture — and this includes Deputy President Paul Mashatile

Gwede Mantashe is a close ally of Ramaphosa and is the ANC chair. Last week he lost his Joburg high court challenge against the recommendation that he should be prosecuted for a gratuity in the form of security upgrades he allegedly received from Bosasa. Mantashe brought the challenge in July 2022 and it was dismissed on a technicality.

There are at least five other members of the executive with clouds over them — not all linked to state capture — and this includes Deputy President Paul Mashatile, whose lavish lifestyle has come under scrutiny. 

Ramaphosa is unlikely to act against Mantashe, who will probably return to the courts to amend the defect in his application which resulted in its dismissal.

Mkhabela says Ramaphosa will retain compromised individuals in his cabinet. “How can we legislate that the right people must be appointed? In the end, it’s all about political will,” he says.

According to an analysis of Ramaphosa’s state capture response by the Public Affairs Research Institute (Pari), released late last year, there are questions over whether he has acted “rationally” and “in accordance with the principles of rationality and legality” by failing to “draw on his constitutional prerogative to act against implicated members in his executive”.

The Pari report says: “Continued failure to ensure accountability further undermines public trust in government and the president, and in our constitutional democracy. Even in the absence of criminal wrongdoing, questions remain about the competence and integrity of members of the executive implicated in the state capture commission.”

A central figure identified in the architecture of the state capture project, former state security minister David Mahlobo, continues to serve in the executive as deputy minister of water & sanitation and has been in Ramaphosa’s government since 2018. 

Aside from its political drivers, state capture was enabled by using political power to appoint people into key executive and administrative positions to do the bidding of their masters. 

Pari has questioned the shift in the government’s stance in relation to the appointment of the national director of public prosecutions (NDPP) from a legislated shift to mere “guidelines”.

The FM understands that there has been significant resistance from successive justice ministers to creating more space for the independence of the NPA. A possible amendment of the NPA Act is being “considered”, relating to appointment guidelines for the NDPP. The report says this should be finalised by November, because NPA boss Shamila Batohi will reach the end of her term next year.

t is understood that addressing “administrative politics” and exorcising the culture of state capture in state administration have slowed down progress in implementing reforms.

It is understood that addressing “administrative politics” and exorcising the culture of state capture in state administration have slowed down progress in implementing reforms. Pari notes that the progress in reforming personnel practices in the public administration has been slow and halting. 

“Tensions at the political-administrative interface have been problematic because delegations to accounting officers have been inconsistent and discretionary, often leaving the latter vulnerable to undue political pressure from their executive authority,” its report says. 

Mkhabela notes that the ANC’s management of the administrative and political interface has always been fraught. “The ANC has failed to find a perfect way for the two to interface and deliver on what the constitution requires,” he says. 

The presidency report shows where the blockages are to building a state that is resilient and able to resist capture and corruption. The annexures of the report hide the nasty details of what is holding reform back, indicating a connection back to the ANC itself. It is apparent that the recommendations that are the key to institutional reform in state-owned entities (SOEs) and in the criminal justice system are being resisted by the ANC-run departments responsible. 

While Eskom has turned the corner and Transnet is slowly on the mend, the recommendations which will help neutralise political interference in SOEs in the long run are among those that the state is simply not acting on. They are labelled as “requiring action” in a bright red box in the report.

These include the establishment of a central database for SOE board appointments and the introduction of independent panels for nomination of boards and CEOs for SOEs. Ideally, this should be legislated. 

These appointments link directly to the ANC’s persistence with a policy of cadre deployment, which was heavily criticised in Zondo’s report. On the criminal justice system, the recommendation to resolve the question of the financial and administrative independence of the NPA is still outstanding. Implementing just these two recommendations would go a long way to prevent capture and corruption, but politicians are not having it. 

What could be behind the resistance clearly seen from the side of the justice department? 

Alex van den Heever, adjunct professor at the Wits School of Governance, says the only inference that can be drawn is that this is a “deliberate obstruction [to] protect people”. A clear example is the battle between the NPA and the justice department in 2024, over access to the Zondo commission archives. The NPA wanted direct and unfettered access to the petabyte of information, while the justice department banged on about being the “custodian” of the information, and that it would benevolently provide access to the NPA on an “as needed” basis.

To make matters worse, reports at the time indicated that the hardware and programs which store the data require constant updating to maintain its integrity. There were concerns that the justice department was not doing this, which could compromise the information.   

“So when there’s no good reason, you have to draw [the inference] that this is a deliberate obstruction and it is to protect people. Otherwise holding onto the material from the Zondo commission that would allow for proper prosecutions to proceed after such an in-depth process of gathering evidence makes no sense,” Van den Heever says. 

He makes another worrying observation. 

As the commission probing Mkhwanazi’s allegations unfolds, and looks into claims that criminal cartels have captured senior government leaders such as police minister Senzo Mchunu and deputy police commissioner Lt-Gen Shadrack Sibiya, the police have not stopped working. They are continuing their investigations into these matters — a search and seizure raid was carried out at Sibiya’s home days before he gave evidence before parliament’s ad hoc committee. This did not happen with state capture. The NPA, the Hawks and the police waited until Zondo’s report was handed over and only then began taking tentative steps.

“There was never a reason not to parallel-investigate what was coming out of the Zondo commission,” says Van den Heever. “To have waited till the end also looks very peculiar. So again, you draw an inference that there is a clear unwillingness to address the issues raised.” 

Cadre deployment, as Zondo highlighted, was central to the structural weaknesses which allowed for capture. It establishes a “conflict of interests” in the corporate governance design of SOEs, the NPA and government departments themselves. 

The ushering in of the GNU in 2024 did not change this, because the ANC clung to ministries that were key to controlling the criminal justice system and SOEs. 

The EFF and MK, likely allies of the ANC after Ramaphosa’s term, are effectively spinoffs from the ANC. The EFF is implicated in corruption in Limpopo and the VBS Mutual Bank scandal, and MK in state capture itself. 

Another deep concern, says Van den Heever, is why the NPA has been so “lacklustre” — for example, failing to approach the courts to have the Zondo evidence handed over to them. 

“Why do they not take the extreme action? Why do they not escalate the matter? They’re holding us back.”

An aspect of the presidency report that adds yet another dimension to the Gordian knot created by Zondo’s recommendations is the issue of “amnesty”, cloaked under the heading of “deferred prosecutions”.

Party sources who are in support of reform to provide long-term protection to crucial state institutions indicate that this could be a way to ensure that vested interests are almost bypassed. The report says: “The commission recommended introducing legislation for deferred prosecution agreements, by which the prosecution of an accused corporation can be deferred on certain terms and conditions.”

The current structure, says Van den Heever, “corrupts the political parties, because it’s so easy once you’re in that position to steal from the state and to shut down all the accountability structures. So we basically created an institutional gap that has to be closed. Until it’s closed, we are vulnerable to recapture and recapture and recapture by different parties, different people.”

Real reform following state capture would see the depoliticisation of the NPA and SOEs through structural and legislated reform. But that appears unlikely, at least over the medium term. 

The Zondo commission largely sidestepped the deep problems and politicisation of the police. But the systemic problems are now being highlighted in the Madlanga commission and in parliament’s ad hoc committee, which are both investigating Mkhwanazi’s allegations. 

So far, a bleak picture of capture by vested interests in the police is emerging.

Appearing before parliament last week, Mchunu made it clear that he did not believe he was stepping into the terrain of the national police commissioner by ordering the disbanding of the political killings task team in KwaZulu-Natal on December 31 last year.

This was despite evidence by the SAPS head of legal services, Maj-Gen Petronella van Rooyen, and national commissioner Gen Fannie Masemola, indicating that Mchunu had overreached in ordering the team’s disbandment.

What is at play around the Mkhwanazi allegations is also deeply complex. It links to intra-political party fights, battles between various vested interests among the SAPS top brass and even the ANC’s succession race. 

Insiders in security agencies tell the FM that Mkhwanazi is seen as being close to certain loyalists of Zuma’s MK, and that he has a deep dislike for the ANC. Sibiya, who is accused of acting hastily to disband the team, is seen as closer to the ANC.

Sibiya is said to have a vast network of “informants” and his personal interests may have been served by some of them, leading to the suspicion around himself that he has created among senior SAPS leaders, including Masemola and Mkhwanazi. 

A source describes the battle as having no “good and bad apples”, rather the conflation and diversion of interests between various groupings, all of whom have at least some skeletons in their closets. 

The Madlanga commission and the ad hoc committee are likely to recommend reforms within the police. But judging by the lacklustre approach to tackling the state overhaul recommended by Zondo, they are unlikely to see the light of day. 

The Tembisa Hospital example is another illustrating the dire need for reform of state institutions, with R2bn looted, whistleblower Babita Deokaran shot and killed and now, three Lamborghinis and other luxury items seized from the man allegedly at the centre of the cartel bleeding the facility dry, Hangwani Maumela. And still, no arrests beyond the hitmen who killed Deokaran. 

The common thread linking Tembisa Hospital and the Madlanga commission — looting by criminal cartels — illustrates how the failure to act with speed on Zondo’s recommendations has allowed the modus operandi of the corrupt to morph and take on new characteristics. Cartel-like behaviour is now consuming the state and the officials in it. 

Commissions of inquiry are quickly becoming places of theatre, rather than of accountability, reform and justice. The mushrooming of corruption in South Africa is testament to this.