The Madlanga Commission’s biggest weakness

The Madlanga Commission of Inquiry has confirmed that its findings are not binding but merely recommendations for President Cyril Ramaphosa to act on.

This is according to Matthew Chaskalson, one of the Commission’s evidence leaders, who spoke during a press conference on Monday.

“The law is clear in that our findings are not binding. All we can do is make a recommendation to the President,” he said.

“Our recommendation does not bind the President. It also doesn’t bind the people with respect to whom we make those recommendations or findings.”

Ramaphosa established the Commission following KwaZulu-Natal Police Commissioner Lieutenant General Nhlanhla Mkhwanzi’s allegations that a criminal syndicate had captured the country’s law enforcement and intelligence structures.

Professor William Gumede from the Wits School of Governance pointed out that the Commission’s recommendations not being binding is a major weakness of these types of investigations.

“In the past, commissions of inquiry have often been used to appease the public and in the end often never see any implementation,” Gumede told the SABC.

Gumede added that he felt that Parliament’s investigation, which is running parallel to the Madlanga Commission, may complicate things.

“It would be more prudent for Parliament to watch the outcome of the Commission’s investigation before they get going with their own investigation,” he said.

“In the meantime, they should follow up with the recommendations to ensure they are implemented. Also, look at Parliament’s role in previous commissions, as the Zondo Commission pointed out that it tends not to follow up on recommendations.”

He pointed to the Zondo Commission’s recommendation that Parliament create an oversight committee to ensure the Presidency acts on the Commission’s recommendations.

Lack of follow-through

While South Africans remain hopeful that the government will act on any corruption detected during the upcoming public hearings, many cannot help but feel pessimistic following the President’s lack of action on the Zondo Commission’s findings.

The Zondo Commission of Inquiry was established to hold those responsible for state capture accountable, costing the country R1 billion.

Chaired by former Chief Justice of South Africa, Raymond Zondo, it ran from August 2018 until August 2021, receiving over 300 witness testimonies and 1,438 entities that shared information.

The Zondo Commission revealed significant levels of corruption, maladministration, lobbying, and kickbacks at state institutions.

Zondo provided more than five state capture reports in the first half of 2022, with the full report amounting to nearly 5,500 pages summarising over 8 million pages of documentary and 75,000 pages of transcribed oral evidence.

The National Prosecuting Authority even created a task force for prosecutions and promised a dedicated court to handle state capture matters.

Despite this, the executive failed to take action against several politicians implicated in aiding and benefiting from state capture, with many still in positions of political power today.

These include Minister of Mineral and Petroleum Resources Gwede Mantashe, ANC MPs Mosebenzi Zwane, Malusi Gigaba and Faith Muthambi, and ANC Deputy Secretary-General Nomvula Mokanyane.

Zondo criticised Ramaphosa’s inaction regarding his state capture report findings after the former Chief Justice presided over the swearing-in ceremony for the seventh Parliament’s MPs in 2024.

“I found myself having to swear in ministers against whom I had made adverse findings in the commission. One was a deputy minister who had been promoted to a full minister, and I had to swear them in, knowing the findings I had made,” he said.

“Another one was the deputy minister who was the chair of the portfolio committee who had previously been minister of transport, and I had made findings against them, and the president was promoting them despite the commission’s findings.” 

“What does that do to our fight against corruption?”

Off to a slow start

The Madlanga Commission’s proceedings, which will reportedly cost taxpayers around R148 million, were supposed to begin on 1 September at the Bridgette Mabandla Justice College in central Pretoria.

However, this had to be delayed because the Department of Justice and Constitutional Development failed to procure critical IT infrastructure.

Minister of Justice and Constitutional Development said that the Commission needed a secure platform to share its work report, which had not yet been finalised.

Following her department’s failures, Kubayi suspended Jabu Hlatshwayo, the deputy director general responsible for ICT, pending a full investigation and disciplinary process.

Additionally, she announced “disciplinary proceedings” to be taken against the Director-General for Justice and Constitutional Development, Advocate Doctor Mashabane.

The Commission’s spokesperson, Jeremy Michaels, said on Monday that most of the ICT infrastructure has been delivered and that proceedings will begin on 17 September.