THE PROSECUTION OF STATE CAPTURE IN SOUTH AFRICA: AN APPRAISAL OF THE LACK OF HIGH-PROFILE CONVICTIONS

Abstract

State capture emerged as a critical public issue in South Africa around 2016, driven largely by the work of then Public Protector Thuli Madonsela, alongside investigative journalists and whistleblowers. As a form of systemic, high-level corruption, state capture has had profound consequences undermining governance, weakening public institutions, de-stabilising the economy, and eroding public trust. The South African case is particularly notable for its scale and the depth of institutional damage. Major state owned enterprises, including Eskom, South African Airways, and the Passenger Rail Agency of South Africa, were systematically looted. The looting of Eskom, for instance, resulted in persistent electricity outages that hampered economic activity and daily life, and repeated government bailouts to keep South African Airways afloat. The crisis culminated in the resignation of former President Jacob Zuma and the establishment of the Zondo Commission, which in 2022 released a landmark report implicating numerous high-profile politicians and other role players. Despite the Zondo Commission’s extensive findings and the subsequent internal disciplinary actions by the African National Congress against numerous high-profile politicians, with a few being expelled, prosecutions of the majority of individuals implicated remain nonexistent. To date, the only case brought forward was the first state capture prosecution in 2023, which ended unsuccessfully for the state, resulting in a discharge. Promisingly, the discharge was successfully overturned on appeal in 2025, and the case is set for a retrial. Meanwhile, the long-standing and troubled prosecution of Jacob Zuma continues to remain stalled. Additionally, efforts to extradite the Gupta brothers, alleged central figures in the capture network, have failed. This paper presents a qualitative doctrinal study that investigates the underlying reasons for the lack of successful state capture prosecutions. Initial findings indicate South Africa’s investigative agencies and the National Prosecuting Authority have failed to develop strong, trial-ready cases, reflecting deeper systemic and institutional deficiencies. This paper offers a rare exploration of why state capture prosecutions in South Africa have largely failed to successfully materialise. By shedding light on these developments, the paper contributes new insight into the challenges of prosecuting economic crimes. It identifies key weaknesses in South Africa’s investigative and prosecutorial processes that have impeded effective action against those involved in state capture.