Former chief justice Raymond Zondo suffered many sleepless nights as the enormity of state capture corruption unfolded before him at his commission of inquiry.
What came to worry him most as he sat there for four years, day in and day out, was how to prevent it from happening again.
This preoccupation gave rise to his most controversial recommendation: that the electoral system be amended to allow the electorate to choose the president directly.
Since the brazen efforts to repurpose the state to enable corruption were anchored by the incumbent president at the time, Jacob Zuma, Zondo reckoned that making the head of government directly accountable to voters — rather than, say, Luthuli House — might make it easier to remove them if they transgressed.
“Throughout the time of the commission one of the things that … kept me awake was what recommendation would make sure that we do not have a repeat of this … What could we do to stop it from happening again?” he tells the FM, speaking this week after officially starting retirement.
Zondo, who exudes warmth and humility, and remains unflustered in the face of vicious criticism, will be remembered for his many years at the helm of the labour appeal court and as a justice in the Constitutional Court. But perhaps it was his leadership of the state capture inquiry that will go down as his shining moment.
It was far from easy: Zuma expanded the scope of the inquiry, resulting in several requests for an extension of its life; Zuma’s backers sought to undermine him; and eventually the president himself rounded on Zondo and brought an application for his recusal.
Still, Zondo didn’t blink.
He brought contempt charges against Zuma for walking out on the commission and refusing to return, which led to the former president being jailed, albeit very briefly.
As widely lauded as Zondo’s chairing of the state capture inquiry was, many South Africans wondered about his recommendation about the electoral system, which seemed to stray outside his mandate.
It shows what happens when a member of a political party is powerful, and no matter how bad that person is, they propel you to lead the organisation
— Former chief justice Raymond Zondo
“One thing that worried me in relation to state capture … is how could this person get through the entire system?” he says.
It is a question the ANC should be asking itself, given that Zuma was at the heart of its electoral disaster in May.
“[State capture] shows what happens when a member of a political party is powerful, and no matter how bad that person is, they propel you to lead the organisation and if the party gets elected, that person is head of state. I thought, maybe we should leave it to voters.”
It was a noble idea, but one that was not very popular.
More recent events have borne out Zondo’s concerns about leaders such as Zuma. His MK Party has disgraced judge John Hlophe at its helm in parliament, and a host of the dubious characters implicated in state capture — Lucky Montana, Brian Molefe and Siyabonga Gama — as MPs.
Zondo is deeply concerned about this.
“Seeing them all makes me wonder, could the Guptas be working somewhere? Why are people not ashamed of the wrong things that they have done and they go up and be MPs, is it because we as a society don’t show disapproval? I don’t know, but I get worried.”
MK, which came from nowhere to be the third-largest party in parliament, unashamedly rejects constitutionalism. Which is unsurprising in Zondo’s view, given that it was the constitution and the institutions it created that eventually derailed state capture.
“They want a situation where if you are the majority you can do as you please,” Zondo says of MK’s backing for parliamentary sovereignty, the system that prevailed during apartheid. “All of us need to fight against going back. We must be vigilant and look at what happened during state capture … Parliament was unable to stop it during Zuma’s time … the ANC protected its leader.”
South Africa must be vigilant about protecting its constitutional dispensation, he says.
“If we do not protect that paper, we will find that it cannot protect itself. Yes, our constitutional democracy is strong, but we must not rest on our laurels and leave things and become complacent,” he says.
Testament to the strength and resilience of our democracy — and to the ANC’s credit — was the party’s acceptance of the outcome of the election.
I can say the EFF never supported the work of the commission and certainly MK would not support the implementation of the recommendations
— Former chief justice Raymond Zondo
Another positive development that emerged from the election is the government of national unity, and while there are those who say MK and the EFF should be in it, Zondo is not so sure.
“I can say the EFF never supported the work of the commission and certainly MK would not support the implementation of the recommendations. If that happened [inclusion of MK and the EFF], we would have to forget about those recommendations being implemented,” he says.
While Zondo’s call for a directly elected president may have gained little traction, it brings to mind something that former deputy chief justice Dikgang Moseneke said in 2014. The constitution “displays a remarkable concentration of the president’s powers of appointment”, he argued.
Instead of overhauling the electoral system, perhaps the constitution could be amended instead to curb a president’s powers? This would be an invaluable legacy for President Cyril Ramaphosa to leave behind.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.