South Africa has become notorious for corruption in many of its state-owned entities. In particular there’s been mounting evidence that utilities such as Eskom, which supplies power, and South African Airways were ‘captured’ when a small group of people influenced the state’s decisions to their own benefit and hijacked state organs to channel public resources their way.
State capture is not unique to South Africa. For example, there have been allegations of state capture in Bulgaria, Hungary and the Western Balkans.
In South Africa a great deal of evidence has been given to the Zondo Commission of Inquiry into corruption in the country during the Zuma presidency from 2009 to 2018. A major feature of some of the testimony has been about the awarding of contracts by state-owned entities.
In December 2020, the High Court in Mahikeng, the capital of South Africa’s North West Province, made a controversial order after finding that the Kgetlengrivier Local Municipality was in breach of its legal obligations. The municipality had failed to deliver water and sanitation. It had also failed to prevent environmental pollution in the towns of Koster and Swartruggens.
The court issued an interim order that the municipal manager be jailed for 90 days, unless the municipality urgently restored water services and stopped sewage flowing into the local rivers. It also ordered that, unless the municipality acted quickly, a local residents’ association could take control of the water and sewerage systems. The state would then have to pay the residents for doing the municipality’s job.
It is, nonetheless, a grave moment for modern South Africa and its fledgling democracy.
A former president who, as the Constitutional Court has pointed out, has a particular responsibility to respect the constitution even out of office, has chosen to defy an order from the highest court. This, while attacking the legitimacy of the judiciary and the Commission of Inquiry into State Capture led by Deputy Chief Justice Raymond Zondo.
A quick rendition of the history of the matter is appropriate. In 2016 then public protector Thuli Madonsela completed her report on systemic corruption in government – called State of Capture – shortly before the end of her distinguished seven-year term.