Constitutional Hill

Bad day for journalists and politicians

I was one of the many people who welcomed the “election” of Ebrahim Rasool as Premier of the Western Cape back in 2004. After suffering under the ineffectual leadership of that Charles Bronson lookalike Gerald Morkel; the unspeakable windbag Peter Marais; and the arch opportunist and apartheid era Military Intelligence operative Marthinus van Schalkwyk (now ironically a Minister in the ANC cabinet !), the Western Cape finally seemed to have an honest and caring Premier who campaigned to make the Province “a home for all”.

Boy, was I duped or what?

Yesterday it was reported that Ashley Smith, a reporter for the Cape Argus until April 2006, “came clean” in an affidavit submitted to the National Prosecuting Authority, alleging that he had been bribed by Rasool. Smith claimed under oath that he and then political editor of the Cape Argus Joseph Aranes used their positions as full-time staff members on the Cape Argus to assist Rasool’s campaign against political rivals, and that they received money from a public relations company that obtained provincial government contracts handed out by Rasool’s office without using the tender route.

Rasool, who is supposed to take up the position as South Africa’s Ambassador in Washington, issued a tepid denial of these allegations, saying that the allegations are old hat and had been dealt with before. But Smiths allegations are backed up by Rasools enemies in the ANC who have made similar allegations against Rasool in the past.

If the allegations are true, Smith, Aranes and Rasool could all face conviction for corruption in terms of the excellent Prevention and Combatting of Corrupt Activities Act 12 of 2004. If convicted, they could face heavy sentences, as the High Court is empowered by the Act to impose a sentence of up to life imprisonment for contraventions of the relevant sections of the Act.

Section 3 of the Act – which creates the general crime of corruption – is rather broad and has two components.

First, it targets any person who gives or accepts “directly or indirectly” a “gratification”, which is defined as including any money, gift, contract, benefit, position, employment or service. If it can be proven that Rasool had arranged for the PR company to receive contracts from the Premiers office (as alleged by Smith), this would satisfy the first part of the test for corruption as not only direct payments or benefits are targeted. Where a front company is used to channel the payment of money or the rewarding of contracts (as is alleged in this case), that will still fall squarely within the definition of corruption set out in section 3 of the Act.

Second, the “gratification” had to be given or received with the intention to achieve any number of specific goals. Where a gratification is given or received with the understanding that the person who received it would act in an illegal, dishonest, unauthorised, incomplete, or biased way, or that would amount to an abuse of a position of authority or that would amount to any other unauthorised or improper inducement to do or not to do anything, the parties will be guilty of corruption.

If the allegations by Smith are proven to be true, this second requirement would also clearly be met as the journalists would have acted in a dishonest, unauthorized, biased and improper manner by writing bad things about Rasools enemies within the ANC and good things about Rasool while they were supposed to report fairly and honestly about politics in the Western Cape.

Section 24 of the Act further makes it easier for the state to prove its case. As long as it can prove that a “gratification” was given or received, it could be assumed that this was given or received with the intention to corrupt – unless the accused can produce evidence that raises reasonable doubt about this link.

A prosecutor would therefore have to show that the PR company did indeed receive contracts from Rasool’s office and that the journalists did indeed write stories favorable to Rasool and detrimental to his enemies in the ANC. Once this has been done, Rasool and the journalists would have to provide evidence that cast reasonable doubt on the link between these two events.

Two issues arise. First, given the fact that these explosive allegations have now been made under oath, will the police and the prosecuting authority investigate the matter properly and will they bring charges against Rasool and the journalists – despite the fact that Rasool is a well-connected member of the ANC and Ambassador designate to Washington? Or will Menzi Simelane strike again and make sure that these rather troubling allegations go away?

Second, can Rasool plausibly take up his position as Ambassador to Washington with these very serious charges of corruption hanging over his head? Rasool has, of course, not been convicted of any crime. Perhaps these allegations are all part of a dark plot by his enemies. But it seems to me untenable that he could properly represent South Africa in the USA while this dark cloud hangs over his head.

Surely the best way to deal with these allegations would be to investigate them properly and – if they seem plausible – to prosecute Rasool and the journalists who will then either be convicted or have their names cleared by the court. If Rasool is innocent, he might also want to explore the possibility of suing the Cape Argus and Smith for defamation in order to clear his name.

In the absence of such steps, Rasool would clearly not be fit to become the South African Ambassador in Washington. If President Zuma is serious about corruption he will have to withdraw the appointment until the matter has been cleared up. Any bets on whether this will happen? I guess it will depend on internal ANC politics, rather than on whether the President is committed to stamping out corruption or not.

  • Zoo Keeper

    Don’t know why you’re surprised Martinus Van Schalkwyk is in the ANC cabinet. The ANC did, afterall, welcome the likes of Pik Botha the chief apologist of Apartheid with open arms.

    Most of the dirty Nats went straight to the ANC, must be the comfort of race-based policies…

  • Gwebecimele

    @ Zoo Keeper

    Where would you put Van Zyl Slabbert, although he never got an ANC membership?

  • Zoo Keeper


    Van Zyl Slabbert? Maybe ANC before Mbeki’s era, but since then he’d probably be in a non-racial party.

    Maybe moving towards the DA? Or else on his own is probably more likely.

  • Gwebecimele

    @ Zoo Keeper

    Thanks for your responsel

    Lastly, What is a dirty Nat?

  • Zoo Keeper

    Those who were in the National Party and took as much as possible from Apartheid.

    All of them until 1994 when they kicked out of government

  • Gwebecimele

    @ Zoo Keeper

    It can be argued that majority of whites were in(VOTED) the NP and all benefited from Apartheid but few of them moved to the ANC.

    I hear you.

  • Maggs Naidu –

    Gwebecimele says:
    July 1, 2010 at 14:01 pm

    Hey Gwebe,

    If you can find any today who voted for the NP then (apart from the then politicians of course) it would be a wonder!

  • Brett Nortje

    Very droll, Maggs, I’m sure. Predictable too.

    I’m going to differ from you, Zoo Keeper. It would have been in the best interests of the country if we’d let up hating on the NP and helped them become a strong, effective opposition to the ANC. We were absolutely self-indulgent in driving them (well, helping them into Lemming-hood).

  • Vuyo

    “…the Western Cape finally seemed to have an honest and caring Premier who campaigned to make the Province “a home for all”. Boy, was I duped or what?”

    Were you “duped” by his performance as premier or were you duped by the alleged corruption/bribery? If by the latter, I would counsel you to be wary of jumping the gun and making conclusion based on allegations.

  • Pierre De Vos

    Vuyo, as you must surely have read in the post, I do not jump to any conclusions and treat the allegations as such. Problem is, under Rasool, the ANC in the province imploded and the infighting became so bad that various factions in the government were at war with each other and allegations of racial cliques, secret agenda’s and the like were the order of the day (until Lynne Brown came along and steadied the ship). And then Rasool gave work to an outfit (this is not an allegation but proven fact) who employed a guy making these serious allegations against him. A mess all around, I would say – no matter whether the allegations are eventually proven or not.

  • Zoo Keeper


    That would be the same as saying that all blacks are benefitting from AA/BEE.

    No easy fit here, the voting cattle got sold out and the elite took the benefits. Cost the voting cattle their government jobs and a fair whack of trauma from conscription – led down the garden path and then betrayed. No wonder whites are angry!

    Can’t extrapolate to the general populace I’m afraid.

  • Gwebecimele

    @ Zoo Keeper

    You are 100% correct AA and BEE is intended for all blacks. If implemented as effectively as apartheid (For the same period) then no black person would be able to distance themselves from AA/BEE.

    Just see below how others are missing out:

    Schussler said more South Africans received money from welfare than from employment with 12,8 million people working—not all for money—and 13,8 million people receiving welfare payments from the proceeds of five million taxpayers.

    “I don’t know of any other country in the world where the recipients of welfare are greater than the amount of people who work.”

  • Zoo Keeper


    Agreed, but do we want that? Shuoldn’t we chart a new way forward because at the end of the next 48-year cycle someone else will have been discrimminated against and then its another 48-year cycle.

    In my opinion, AA/BEE should be coming to an end and the citizen left to carry on with life in the near future.

    The figures of 13.8million dependant on the work of 5million is of extreme concern. Perhaps that’s how the ANC remains in power – 13.8 million economic slaves who will vote for you no matter what in case they lose their livelihoods. Evil system this.

  • Dirk

    I wouldn’t be surprised if most of the Premier’s Offices in this country has DTDs – “Dirty Trick Departments” – to engage in nefarious activities. Wonder how many journalists are NIA agents?

  • Gwebecimele

    @ Zoo Keeper

    My understanding is that correction will stop when the demographics are reflected in employment and other spheres of our lives. So this is the last 48 yr cycle.

  • Tony in Virginia

    President Zuma, with a cloud of corruption STILL hanging over his head, is a compromised leader. There are many Rasools within the ruling party and Zuma is one of them.

    The ANC will deal with the Rasool case as an internal matter of the ANC. He will not be prosecuted but will be deployed somewhere else. His punishment would be not to send him to Washington, but to Khazakstan (or some such place).

    Zuma serious about combating corruption? Don’t make me laugh.

  • abidam

    It is time for all good people of South Africa to stand up and be counted!

    Corruption is becoming a way of life in South Africa.

    It seems now all the ducks are in a row (for this one must give them credit, they are doing a sterling job);

    They have

    1) Sorted out the judiciary

    To quote Pierre; “Or will Menzi Simelane strike again and make sure that these rather troubling allegations go away?”

    2) Deployed their close supporters, allowing them to get away with their own corruption (Travelgate) so that they will never point a finger and be loyal for ever.

    3) They are even finalising a law to hide corrupt activities

    Revived media ‘gag’ bill faces criticism

    4) And to keep the people distracted they provide ever changing FIFA and toilet sagas

    so that the the plunder can continue and gather momentum until it is too late.

  • Herman Lategan

    This whole fiasco with journalists and a politician shows you just how pathetic the media industry has become. It is a sorry state of affairs, with understaffed newsrooms, badly paid hacks and silly people like Tony O’Reilly running one of our major media houses.

    In addition, most journalists nowadays want to be celebrities; they think having a by-line will give you fame and fortune. Shame. And if it doesn’t pan out that way, this is what happens.

    In any case, of that ineffectual Rasool one would expect this sort of underhand behaviour, it’s the nature of the beast. The poor man reminds one of a second hand car salesman and part time perlemoen aficionado.

    Now he’s off to Washington, dear Lord, what next? It’s all so embarrassing man. I would have laughed if it wasn’t for the fact that I’m chocking on my own vomit.

  • kenneth

    i raised this issue of brown envelopes back on previous topics, when one of the senior newspaper editor was then accused by the ANCYL of accepting brown envelope ,to my suprise nobody took note of that and it is so common in south africa media industry, if we were to put commission of enquiry on journalist profiting from brown envelopes, no newspaper will be found clean.

  • Howard Klaaste

    This scenario should be a very good reason why the Protection of Information Bill should never be allowed to reach the corridors of parliament. Politicians may reason that precisely because of irresponsible journalism this Bill should see the light of day, but Mr Rasool is a politician and it is obvious what would have happened if it was passed eons ago!

  • Lobengula

    Why on earth should you be worried that Rasool might get the post of ambassador with a dark cloud hanging over his head?
    Have you not even seen Zapiro`s cartoons.
    Zuma is in office with a dark cloud (even a shower hanging over his head) as he never got his day in court.
    Rasool is a small fish

  • Andy


    Dear Pierre,
    I’m going to keep it as brief as possible.
    Whenever I’ve had the time over the last year or so, I’ve generally looked into your blog because initially I thought it would was a forum or platform on which legal issues could be discussed and debated impartially, objectively and at a professional level. The reason for having “joined” this blog was that I was looking for a general display of argumentation, reason and logic to be exhibited. With regret, I have to establish that the level of debate and reasoning has mutated into (what I call) a “racialisation” of everything, the substance of which at times is unbearable. I say unbearable because it is sad to see that, judging by many of the patently racial comments made on this blog (whether made in jest or seriously), it is clear and sullen to see that the ideas of a democratic and non-racial South Africa have not really been internalised by many yet.

    I guess I could simply have made a silent exit and you would never have heard from me again. However and in all fairness, what I’d like to say is: in spite of the fact that you champion the cause for democracy, equality and black people in SA (all of which are highly noble and commendable things), and in spite of the fact that many of your perceptions, statements and assertions are (to my mind) heavily skewed but worth debating or attacking, I feel it was a good exercise debating with you and the one or other contributor. Notwithstanding the aforementioned, I have decided to leave this blog permanently purely because I feel this blog has reached a level to which I can no longer relate. It is not the discussion, disagreement or debate which is motivating me to leave this blog. On the contrary, this is what I thrived on. However, it cannot be that, in a fight towards a non-racist South Africa, that people still express patent or underlying sentiments of racial attitudes, when in fact this is the very thing everybody in SA is hoping to eradicate. Inasmuch as you take championing your cause/s seriously, I also take my humanistic and non-racist view seriously and I do not wish to be part of a forum on which subtle respectively patent racial undertones are prevalent or played around with. On a lighter note: my departure from this blog simply means you’re minus one critical voice on your blog now. Thanks anyway.

  • Herman Lategan

    Oh Andy, don’t be so stuffy and take yourself so seriously. Life’s too short to see a racist under every bush. Under the Nats there was always a communist lurking in every corner. Always the “other”, isn’t it? It’s usually called projection, in psycho babble.

  • anton kleinschmidt

    Hi Andy…some of what you say is valid but imagine a situation where “all good men” abandon the field of strife to avoid being sullied. Who would carry the banner of racial sensibilty, reason and good sense?

  • etienne marais

    hey! andy !

    you left some of your toys in the cot…shall we mail them to you?

  • Maggs Naidu –

    anton kleinschmidt says:
    July 2, 2010 at 13:27 pm

    “Who would carry the banner of racial sensibilty, reason and good sense?”


  • Belle

    So, Pierre, now that your Rasool idol has proved to have feet of clay, are you also going to fall on your sword used to defend the Erasmus Commission?

  • Gwebecimele


    WINDHOEK (Reuters) – Namibia’s central bank said on Friday it declined a bid by South Africa’s Absa (JSE:ASA) to buy a controlling stake in financial firm Capricorn Investment Holdings.

    Absa, majority owned by Britain’s Barclays, said in February it planned to buy a controlling stake in Capricorn for an undisclosed amount.

    Bank of Namibia Governor Ipumbu Shiimi told reporters the bank had declined Absa’s bid because of concerns the country’s financial sector would be controlled by foreign companies

  • Gwebecimele

    I was humbled by the stories of readers who told of their experiences of the horrific and everyday crime that had been the final push factor on the migration checklist.

    I hope we can “speak” further about migration and notions of identity and home in the coming weeks, but this week I want to acknowledge and own up to being a proud affirmative action beneficiary. Yes, a real live black woman who couldn’t do it on her own but needed a leg-up. Many of the comments left last week carry a sub-text that says my writing is soporific and that the only reason News24’s editor, Jannie Momberg, lets me onto this hallowed space is because I am black.

    Given the melanin deficient ranks of opinion columns here, I now realise that Jannie may not have asked me to write because of a refined turn of phrase.

    In fact, you are write. My spelling is atrocouos and my grammar. Even worse. I’ve got a long way to go.

    Unlike other beneficiaries who defensively say, “I am not an AA candidate” because they feel that it’s insulting and patronising, let’s get the conversation real. If it had not been for the Constitution and its provision for an employment equity law to fix years of apartheid oppression, I would not be enjoying this fine online sophistication but be forking out for the Daily Sun, that brilliant paper of the working classes.

    In Bosmont where I grew up, our paths were predestined down a blue-collar path. The way Hendrik Verwoerd, architect of apartheid, had it planned was that so-called coloured folk were not to be hewers of wood and drawers of water like black South Africans.

    Nope, our destiny was to go to work in the clothing factories when we still had a clothing industry because the siege economy was quite good at manufacturing things that nobody else would sell to them.

    Or to become a teller at the bank but to never set your eye on being a manager, oh no. Or to leave school in Grade 10, go to a teachers college and become an often, but not always, useless teacher so that our communities reproduced virtuous cycles of factory fodder.

    Luckily, I had pushy parents who were factory workers but thought their kids might do better and scrimped and saved to get us to varsity. At Wits University, the left-wing Marxists and liberals who ran the place altered destinies by setting up new dreams for young people like me who got in on the quota system which allowed a sprinkling of blacks to go to white universities.

    One of them was a graduate called Anton Harber who decided to set up his own newspaper, the Weekly Mail. When offered a decidedly affirmative action place on his training programme, I accepted it with open arms. To those of you who wondered last week how on earth I became an editor, you’re right: that was an affirmative action job too. Mail&Guardian owner Trevor Ncube thought I could turn a phrase but it helped that I was a black and female.

    Without these equal opportunities, without the vision of people who realised that hands-up were needed, without the employment equity laws and our Constitution, where would most middle-class black people be? Without that black spending power, would this economy have enjoyed the growth spurt of the early 21st century?

    At some point I decided that two affirmative action jobs were gift enough so I would not take another on those grounds. I am affirmed and free and want to compete equally in any future for any position. Yes, there are many skills to learn and much to burnish, but the opportunities to self-provide now exist.

    When young black professionals hop from job to job because it’s possible to demand higher and higher packages, you shut out new graduates and entrants and give employment equity a bad name. Moreover, it shrinks the pool of equal opportunity and there is an ocean of need among black graduates upon whose shoulders rest the dreams of future generations and the bread and butter needs of the present one.

    I hope that because I’ve been honest and acknowledged my hand-up the ladder, I can ask a question of those readers who have such a venomous outlook on empowerment.

    What was your destiny? What was your home circumstance: a property owned by your parents, aftercare or an at-home mum, a car when you turned 18, a trust fund to secure inherited wealth?

    Three proper meals and packed school lunches? Good doctors and dentists? Did you go to a school, whether private or public, with good teachers and sports fields; perhaps even properly equipped science labs? A varsity near home or one away that was your choice?

    I’m sure there were exceptions, I know there has always been a sizeable white working class, but on the whole, the world of white South Africans was one of middle-class respectability and comfort where inter-generational wealth transfers meant that there was always support to achieve your best and a cushion when times were tough.

    Such systemic privilege was the outcome of a huge affirmative action programme and the only way we will break the destructive and damaging debates we have about employment equity and black economic empowerment is to recognise that a hand-up for those left behind is the right thing to do.

    – Ferial Haffajee is editor of City Press.

  • Gwebecimele

    As much as I do not like Lekota and Cope, I suspect this was an agreed move to compensate Lekota for not getting an MP seat which comes with a free accomdation but now is being used to further certain interests. If this is true, no party would have announced the arrangement to its members at the time.

    My biggest concern is,”How many of these opportunistic officials are still roaming our public offices.”
    These are the people who have been making decisions about our lives for the last 15 yrs, I hope the ANC will one day find strength and flush out these rogue elements.

    I doubt even ex-Pres Mbeki still have meetings with these people and he probably regret appointing/trusting most of them.

  • Loudly South Africa

    Question to Prof de Vos:

    If Simelane does, indeed, “strike again and make sure that these rather troubling allegations go away” would HE not be guilty of contravention of the P&CoCA act?