On Wednesday, News24 published a report revealing that due to a lack of maintenance the database assembled by the Zondo Commission cannot be accessed. As the commission is no longer in existence, it was the duty of the Justice Ministry to maintain the database — which it failed to do.
It is not clear whether the data will be accessible in the future.
While government departments around the world can suffer from IT problems, this follows a trend of behaviour that shows a level of deliberation.
Last year, the chair of the commission, the outgoing Chief Justice Raymond Zondo, was forced to speak publicly about his frustration with the way his findings were treated by the Justice Ministry.
At the time, when the current international relations minister, Ronald Lamola, was justice minister, the State Attorney’s office refused to provide funding to lawyers to defend challenges against Zondo’s findings. In other words, Lamola and other officials were making it easier for the findings of the Zondo Commission to be overturned.
It was only thanks to help from the private sector that this was prevented.
Now, as News24 reported, it has emerged that the National Prosecuting Authority (NPA) has been desperate to access the information on the database containing Zondo Commission evidence, but has been prevented from doing so.
There are some legal technicalities here.
Evidence presented at the Zondo Commission cannot simply be accepted by a court in a criminal trial. Any evidence would have to be introduced in court again and any defendant would have the right to dispute that evidence or question the way it was obtained.
But the evidence would still be very useful — it would outline what happened and allow investigators to start making a case.
Also, legalities around the evidence and whether it could be used in a criminal case would not be the problem of the Justice Department but of the NPA.
While lawyers might want to argue about everything, if the justice minister wanted to aid justice and ensure prosecutions, then surely they would hand over the necessary evidence and leave the NPA to make its decisions.
Pain of injustice
That is not what has happened in this case. Rather, it appears that the justice ministers involved, first Lamola and now Thembi Simelane, are aiding or allowing those involved in State Capture to evade accountability. Those who suffered the injustice of State Capture may never get justice.
Simelane herself has suffered the deep pain of injustice. Her sister Nokuthula Simelane was killed by the apartheid government in 1983. The identities of those who killed her are known and they did not receive amnesty from the Truth and Reconciliation Commission (TRC), but they have not been prosecuted.
This has been one of the running sores of our society, that people denied amnesty by the TRC were never prosecuted. It has led to public campaigns for prosecution. In one case, former NPA head Vusi Pikoli said in an affidavit that he was pressured by the government of former president Thabo Mbeki not to prosecute those who had been denied amnesty. (Mbeki has denied this, despite all the evidence.)
While SA has had justice ministers who suffered injustice during apartheid, Simelane may be the first to have suffered the injustice of non-prosecution from the ANC-led government, her very own party.
It is one of the important stories of our country that someone who suffered the murder of her sister by the apartheid regime and the injustice of those responsible never being prosecuted by the ANC government is now the minister of justice.
Simelane may now come under pressure to ensure that the Zondo database is restored and made available to the NPA.
However, the fact that the NPA has been denied access to the database may well mean the justice ministry is breaking the law in a way not seen since Pikoli was suspended while on the verge of arresting the then national police commissioner, Jackie Selebi, in 2007.
A big issue at the time was whether the NPA, and particularly the National Director of Public Prosecutions, had the final authority on the decision of whether to prosecute.
It is surely the case that the Justice Ministry, headed by a political appointee and a member of the Cabinet, cannot have the final say.
Some in the NPA might well view the Justice Ministry’s behaviour as an attempt to interfere with the independence of the institution.
Conspiracy theories
It must be asked why the ministry is not bending over backwards to ensure justice is done.
This may well lead to conspiracy theories.
It was always curious that the ANC, when it had total control of the government, allowed the Zondo Commission to continue as it did. In essence, the commission was an inquiry into corruption carried out almost entirely by ANC members. No other parties were implicated.
And yet the ANC, in public at least, supported the commission. It has also publicly claimed there must be accountability for what happened.
For the conspiratorial, the fact that its deployees in the Justice Ministry are now actively working against this suggests there was a longer-term plan: that the Zondo Commission would assuage the public’s anger and that the ANC would still control the legal process afterwards.
No matter what the real reason is, there will be consequences for this lack of accountability.
It will weaken the rule of law and strengthen the perception that there is one system for politicians and another for everyone else.
In a society where only 14% of murders are solved, this is extremely dangerous.
It could have an electoral consequence. ANC leader President Cyril Ramaphosa has promised many times that action would be taken against those implicated in State Capture.
Yet he has appointed such people to his Cabinet. The party he leads has refused to act against those implicated, despite huge public pressure to do so.
Considering how important the issue of corruption is to the ANC, these actions might well cost it political power. First in the local elections in two years and then in the national government in 2027.
In the meantime, those implicated by the Zondo Commission may well sleep soundly at night, knowing that the actions of the Justice Ministry have made this database inaccessible. DM