corruption

Prosecuting authority: President Zuma’s conflict of interest

May 30th, 2013

It has been almost eight months since the Constitutional Court found that President Jacob Zuma had acted irrationally when he appointed Adv. Menzi Simelane as National Director of Public Prosecutions (NDPP) and declared that disastrously unwise appointment invalid. For eight months Adv. Nomgcobo Jiba has been acting as NDPP, fuelling the perception that the NPA is beholden to powerful political and business interests. This failure on the part of President Zuma to appoint a NDPP constitutes a breach of the Constitution. But given President Zuma’s own entanglement in various criminal prosecutions, it is unclear whether he is constitutionally entitled to appointment a NDPP at all.

The appointment of a new NDPP by President Jacob Zuma (whose own prosecution for fraud and corruption still looms large in many people’s minds, surely not least in the mind of President Zuma himself) raises truly interesting and novel constitutional law questions.

In terms of section 179(1) of the Constitution, the President has the duty to appoint the NDPP. When this provision was drafted, Nelson Mandela was President of South Africa, which suggests that the drafters of the section probably did not imagine that a President would be required to appoint a NDPP who might ultimately have to decide on whether to prosecute the very President who appointed him or her. To grasp the stark nature of the conflict of interest that arises with the appointment of a new NDPP by President Jacob Zuma, you first have to understand what the constitutional purpose of such an appointment is.

As the Constitutional Court pointed out in the Simelane judgment, the drafters did foresee that a politically pliant NPA would endanger the effective and impartial functioning of that institution and hence guaranteed its independence (from both politicians and private business interests) in the Constitution itself. As Justice Yacoob pointed out in that judgment, this required that the NDPP had to be viewed as a “non-political chief executive officer directly appointed by the President”. The office of the NDPP had to “be non-political and non-partisan”. Its role, said Yacoob, was “closely related to the function of the judiciary”.

In the Simelane judgment it was thus made clear that the purpose of appointing the NDPP was to ensure that the person appointed as NDPP is sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office and, in particular, to ensure amongst other things that:

the prosecuting authority performs its functions honestly and without fear, favour or prejudice;
decisions to institute criminal prosecution are taken honestly, fairly and without fear, favour or prejudice;
any improper interference, hindrance or obstruction of the prosecuting authority by any organ of state is not tolerated.

Of course, given the fact that the original decision of the (then acting) NDPP to drop all fraud and corruption charges against President Zuma is being challenged in court, an NDPP appointed by Zuma may well in future be required to make a decision on whether to pursue criminal charges against him. It would obviously be in the personal interest of President Zuma to appoint a NDPP who would favourably consider his requests not to resurrect charges against him and not to pursue a criminal case of fraud and corruption against him.

There is therefore a direct conflict between President Zuma’s personal interest (in appointing a person that could be trusted never to pursue charges against him) and President Zuma’s constitutional duty to appoint a person for the laudable purposes set out above.

When he decided to appoint an acting NDPP eight months ago, it is far from clear that the latter consideration trumped the former in the mind of the President. This is because as acting NDPP, Adv. Jiba has seemingly flouted a court order requiring the NPA to hand over various spy tapes and other information (used as an excuse for dropping the charges against President Zuma) to the litigants. Adv. Jiba has also pursued a vendetta against a prosecutor who has displayed a (in retrospect, unwisely principled) determination to pursue criminal charges against the head of crime intelligence who had indicated that he would help to protect Zuma.

The fact that President Zuma had for the past eight months failed to appoint a permanent NDPP, also suggests that the constitutional obligation to ensure an impartial and independent NDPP may have taken a back seat to the President’s more urgent personal considerations.

One of the aspects generally associated with the independence of a constitutional body is a guarantee of security of tenure. An individual who acts in a position for eight months does not enjoy such security of tenure. In fact, such a person is peculiarly vulnerable to political pressures as she can be removed as acting head without following the procedure prescribed in the NPA Act. A President who is willing and able to safeguard the independence of the NPA as required by the Constitution would therefore avoid a situation in which somebody serves in an acting capacity as NDPP for any length of time.

Moreover, section 237 of the Constitution explicitly states that “[a]ll constitutional obligations must be performed diligently and without delay”. What constitutes diligence and action without delay would, of course, depend on the specific context. In the case of the appointment of a NDPP, where the independence of a NDPP serving in an acting position would be inherently compromised, the President would have to act within a few weeks. This never happened, meaning that President Zuma is in breach of his constitutional duty to appoint an NDPP “without delay”.

But because the appointment of a NDPP by the President raises the spectre of a direct conflict between his own personal interest and the constitutional duty to appoint an independent NDPP, I am not sure that the President is constitutionally capable of validly appointing a NDPP himself. Doing so would leave the appointment of NDPP extremely vulnerable to constitutional challenge on the basis that the conflict of interest would render the President unable to appoint the NDPP.

In the SARFU judgment the Constitutional Court made it clear that the President could not delegate the powers bestowed on him by the Constitution to an underling. This means that if the President wished to avoid the conflict of interest inherent in his duty to appoint a new NDPP, he could not delegate that power to, say, the Minister of Justice.

I would suspect that section 90 of the Constitution is applicable in this situation and should regulate the constitutionally correct course of action. This section states that where the President is, inter alia, “unable to fulfil the duties” of President, the Deputy President must act as President. I would argue the President is “unable” to appoint the NDPP because of the clear and direct conflict of interest. In such a situation, section 90 of the Constitution could be invoked by President Zuma in order to allow Deputy President Kgalema Motlanthe to make the decision on who to appoint as permanent NDPP and then to make the appointment.

If I was President Zuma’s legal advisor I would therefore advise him that it is imperative that a NDPP is appointed forthwith. I would also advise him that because of the direct conflict of interest he is rendered unable to appoint the NDPP and hence the Deputy President will have to fulfil this task. To avoid any perceptions of impropriety, the Deputy President would then have to make the decision without any involvement of the President himself. But whether President Zuma would be prepared to take such a chance on his own future freedom is, of course, another matter.

Breytenbach: too little fear, favour and prejudice?

May 27th, 2013

by Pierre De Vos.

63 comments

The acquittal of prosecutor Glynnis Breytenbach on all 15 charges brought against her by her superiors at the National Prosecuting Authority (NPA) raises serious questions about the independence and impartiality of the NPA and its leadership. It will strengthen the increasingly widely held perception that senior NPA leaders are appointed because of their political loyalty to the dominant faction inside the ANC (and especially to President Jacob Zuma and his campaign to stay out of prison) and not because of their personal integrity, independent attitude and ability to act without fear, favour or prejudice (as required by the Constitution). If this perception is true, this would not be surprising, as the capture of independent institutions by the dominant faction within the ruling party is one of the pathologies generally associated with one party dominant forms of democracy.

From a political point of view, the suspension and subsequent charging of Glynnis Breytenbach in an attempt to get her fired from the NPA always looked particularly suspicious. Breytenbach was working on several high profile politically important cases and was suspended shortly after she demonstrated a “disturbing” ability to act in a principled, independent and honest manner — disturbing, that is, from the perspective of those politicians and their benefactors who rely on a politically pliant NPA to protect their interests and to keep them out of jail.

One such a high profile politically charged case on which Breytenbach worked was the fraud charges she pursued against crime intelligence boss Richard Mdluli. Mdluli wrote a letter to President Jacob Zuma in which he mentions — seemingly with approval — perceptions that he (Mdluli) would abuse his position as head of crime intelligence to work towards Zuma’s re-election as ANC President at Mangaung – making Mdluli something of the original names-dropper in a system infected with name-droppers. (The Presidency later claimed never to have received this letter, although Zuma himself never denied personally receiving the letter.)

Back in 2008 Mdluli made an affidavit in support of now acting head of the NPA, Nomgcobo Jiba, who was facing disciplinary charges at the time for assisting in the arrest of fellow prosecutor Gerrie Nel as part of a plan to thwart the prosecution of now convicted fraudster Jackie Selebi. Zuma expunged the criminal record of Jiba’s husband Booker Nhantsi who was imprisoned for stealing trust funds, creating (at the very least) a perception that Jiba might be beholden to the president and might feel that she had to keep an eye out for his interests. Former acting head of the NPA, Mokotedi Mpshe, Menzi Simelane and Jeff Radebe mysteriously reinstated Jiba to the NPA after a back room settlement. The Zuma spy tapes were obtained by Crime Intelligence and given by Mdluli to Jiba to use in her disciplinary case.

Breytenbach was also involved in a criminal complaint in the mineral rights dispute between politically connected Imperial Crown Trading (ICT) and Sishen Iron Ore Company. ICT is partly owned by those others name-droppers of note, the Guptas, and by Duduzane Zuma – one of President Jacob Zuma’s sons. It was her conduct in the latter case which was used to suspend and charge Breytenbach – three months after a complaint was first laid against her by an ICT lawyer, but days after she signalled her determination to pursue the Mdluli matter.

In the ruling acquitting Breytenbach, it was found that some of the charges levelled against Breytenbach amounted to “victimisation”. Advocate Selby Mbenenge, the chairman of Breytenbach’s disciplinary hearing, found that: “There is no evidence that the employee was not always in control. She was independent and objective. She cannot be found guilty”. In other words, the NPA victimised an independent and objective employee for as yet unexplained reasons.

One of the most notable aspects of South Africa’s democracy is that one political party — the ANC – enjoys overwhelming support from those voters who take the trouble to vote in general elections. Moreover, in the absence of a credible political alternative, given the governing party’s untrammelled ability to distribute patronage in the form of tenders and government jobs, and given the ANC control of the SABC (the media outlet serving the vast majority of the electorate), the leaders of the dominant faction inside the ANC have every reason to believe that this overwhelming support for the ANC will continue into the future.

In almost all such one party dominant democracies — whether in post-war Japan, Mexico for the first ninety years of the previous century, post-war Italy or post-independent India – independent state institutions are often co-opted by the dominant faction within the majority party and used to maintain its faction’s political control inside the dominant party and to protect members of the dominant faction from any legal threats — including threats of criminal prosecution for fraud and corruption and threats of exposure of maladministration and abuse of power.

It is against this background that the acquittal of Glynnis Breytenbach must be viewed. If it is true — as the presiding officer found — that the NPA “victimised” Breytenbach, the question arises why she was victimised? Surely independent, impartial and diligent prosecutors would never victimise a colleague for doing her job? Could this, perhaps, signal that when the NPA suspended and charged Breytenbach, it was pursuing factional political aims to protect the President and the cabal of name-droppers around him?

Does it mean that Breytenbach had to be gotten rid of at all costs (even the cost of severe embarrassment now being suffered by the NPA in the wake of the Breytenbach acquittal) because she was far too honest, too fearless and too independent and therefore threatened the political interests of the ruling faction inside the ANC? Or did Breytenbach rather pose a threat to the financial interests of President Zuma and those opportunists like the Guptas who have ingratiated themselves with Zuma and the dominant faction within the ANC by providing various benefits to Zuma and his family?

Surely, whatever the answers to these questions might be, only the most loyal cadre (who also happens to have benefited from the fact that President Zuma and his political faction is now in control of the ANC and of the intelligence services), would not worry that the Breytenbach saga demonstrates that the independence and impartiality of the NPA has been fatally undermined.

In law, the independence of a body like the NPA is measured not only on the basis of whether it is truly independent and can act without fear, favour or prejudice. You must also ask whether a reasonable person — someone not overly suspicious who knows all the relevant facts — would have a reasonable apprehension that the body would be biased. A reasonable person would know all the facts mentioned above. A reasonable person would also know that it is in the interest of President Jacob Zuma to ensure that the leadership of the NPA remains beholden (and therefore loyal) to him as he must avoid a situation in which these very people charges him again for fraud and corruption.

A reasonable person would also know of the high risk in a one-party dominant democracy of the dominant faction within the governing party capturing independent institutions like the NPA to protect the members of its own faction against prosecution and to use the NPA to pursue vendetta’s against members of opposing factions.

Such a reasonable person would also be aware that the police and the NPA started showing an interest in Julius Malema’s alleged corrupt activities only after he had fallen out with president Zuma and started to threaten Zuma’s hold over the ANC. Given all of this, I would guess that any reasonable person would conclude that the NPA has (in fact, and/or as a matter of perception) long since ceased being the independent body it is required to be by our Constitution.

And is it not because of this perception (that the NPA will never prosecute those who are aligned with the dominant faction within the ANC) that all the platitudes mouthed about the evil of corruption and all the programmes launched by the government or by the ANC to root out corruption will finally come to naught? Because as long as everybody believes that they are safe from prosecution for corruption as long as they support the president and the faction inside the ANC he heads, they are never going to stop looting public funds or stop bribing state officials to obtain tenders. Neither are they going to challenge the dominance of President Zuma and his faction inside the ANC.

This is exactly how the dominant faction in a one party dominant system retains its control over the party and the government. It protects those who remain uncritical and deploy state institutions against those inside and outside the party who challenges its dominance. It allows (what it believes to be) acceptable amounts of nepotism and corruption amongst its loyal benefactors and members to ensure a steady flow of patronage to buy loyalty.

In that sense, at least, a certain level of unchecked corruption by party loyalists serves to promote the short- to medium-term interests of the dominant faction within the governing party. It is only in the long run that the electorate at large and factions in the party who find themselves outside the magic circle of patronage becomes so disillusioned that new political formations emerge to challenge the dominance of the once great party.

What’s that smell? Must be the name droppings

May 20th, 2013

by Pierre De Vos.

42 comments

Minister Jeff Radebe on Sunday blamed “name-dropping” for the Gupta corruption scandal and said the government wanted name-dropping to be classified as a form of gross misconduct – presumably for members of the civil service. But for Radebe to blame officials for a culture of name-dropping and to rail against such a culture, is a bit like a habitual drunk blaming a culture of wine making and railing against liquor stores to excuse the fact that he killed a child while driving under the influence of liquor.

Several years ago I was involved in an argument with the principal of a high school in Polokwane. The principal had endorsed unfair discrimination against gay and lesbian learners during a school assembly (comparing homosexuality to Satanism) and I was trying to get the principal to repent and to respect the existing law. The principal was evidently an old style beneficiary of Broederbond-style affirmative action gone wrong and was clearly not the sharpest tool in the shed. He refused to acknowledge the existence of the sections of various Acts prohibiting his school from unfairly discriminating against gay and lesbian learners, choosing to repeat his own narrow-minded, racist and homophobic views as justification for his actions.

As it dawned on me that the principal lacked the basic intelligence and academic literacy required to engage in a logical and coherent debate, I am ashamed to admit I finally reverted to name-dropping. Pretending to be good friends with the then-Minister of Education, I threatened to report him to my good friend, the minister, if he did not relent.

But even this intellectually challenged man did not fall for my bluff. He knew as well as I did that I had no influence with the Minister of Education. I could drop her name a million times until her name shattered into a million bright little pieces at my feet – he would be safe in ignoring my increasingly shrill demands and threats. He knew I had no influence or power over the minister and hence that the name-dropping was nothing but an empty gesture to try to get him to do what his reactionary politics prevented him from doing.

Now, of course, the situation would have been different if I was widely known to be a friend and financial benefactor of the minister. The principal would probably have quaked in his boots if it was widely known that I were the minister’s financial benefactor and that I had been bankrolling the minister and her family. He would have jumped and done as I asked if he had thought that the minister would do anything I told her to do because I had bribed the minister. In those circumstances, not even a person as stupid as that principal would have dared to ignore my complaints. He would have been far too scared of losing his job or being transferred to Putsonderwater High School.

But because the principal correctly suspected that I would never pay bribes to a politician, because we both (probably correctly) assumed that the Minister of Education would never have taken bribes from me or anyone else, and because it was therefore highly unlikely that I had the Minister of Education in my pocket to do as I ordered her to do, that principal had no problem in ignoring my pathetic attempt at name-dropping.

The admission by Minister Radebe that “names were dropped”, is therefore telling. Using the passive voice – a classic technique of evasion – Minister Radebe on Sunday said that the Minister of Defence, the Minister of Transport and President Jacob Zuma’s names were dropped (by whom we are not told) to officials to get them to break the law.

Even if we believe Minister Radebe when he claims that no minister, nor the president, gave direct instructions to any of the officials who orchestrated this abuse of state power, the very appeal to “name-dropping” as a justification for exculpating the politicians, suggest that corruption is at the heart of this scandal. For some reason – which might or might not be linked to activities that are prohibited by the Prevention and Combatting of Corrupt Activities Act – all the officials miraculously believed that when the Gupta’s drop the president’s name, they better jump – after asking the Gupta’s how high they were required to jump.

The most telling and shameful aspect of Guptagate is that – even on the version of events dished up to us by the likes of Minister Radebe – the officials all believed that they had to follow the Gupta’s request or face the consequences from the president and the ministers whose names were dropped. On Radebe’s own version, then, senior officials believed that the president and his ministers were corrupt and willing to break the law and endanger South Africa’s security. On this version officials wilfully broke the law and endangered South Africa’s national security because they thought their jobs depended on fulfilling the corrupt and unlawful wishes of the President and his Ministers.

This is an extraordinary admission to make and I am not sure the minister and his colleagues have given sufficient thought to what they are admitting to. They are, in effect, telling us that the culture of corruption and bribery around the president and the government he leads is so deeply entrenched that – without even having to take instructions from the president or one of his ministers and regardless of what the actual situation might be – senior officials would break the law and endanger national security to please the Guptas, because they believed the Guptas had bribed President Zuma and could instruct him what to do.

What is equally astonishing is that Minister Radebe and his colleagues have failed to ask the obvious question that flows from this unintended admission of government entanglement with corruption: why would the officials believe that the name-dropping by the Guptas (or their underlings) of President Zuma’s name was anything but the empty threats made by any other citizen? After all, those officials would have been unimpressed if any of us ordinary citizens, who (unlike the Guptas) had not been paying off the bond on the house of one of the president’s wives and had not co-opted the president’s son as a business partner, had dropped President Zuma’s name in order to get those officials to break the law. I could drop President Zuma’s name a million times, and I would still not get a single official to allow me to land a civilian plane at Waterkloof Air Force base.

When Radebe claims that the scandal shows that name-dropping in the public service had to be classified as a form of gross misconduct, he is either demonstrating a tenuous grip on logic, or he is wilfully trying to mislead the public. Officials do not drop names. People like the Guptas drop names. They drop names because they have paid their dues and know that the officials will feel pressured by the name-dropping. They drop names because they have names in their pockets to drop. People who drop names have those names in their pockets because they are willing to pay for the privilege.

It is not the officials who are at fault. It is the business people who buy the influence of powerful politicians with offers of financial and other assistance (and the powerful politicians who allow this to happen), who are at fault. And there is no need for new legislation to deal with this problem. This kind of buying of influence that makes name-dropping effective is all outlawed by the Prevention and Combatting of Corrupt Activities Act. This is, not so incidentally, the very Act under which President Jacob Zuma was going to be prosecuted before charges against him were mysteriously dropped. (I guess President Zuma must have dropped his own name to get the National Prosecuting Authority conveniently to make those charges go away.)

So, dear reader, when you hear a politician bemoaning the culture of name-dropping, ask that politician whether he or she could take a lie detector test to promise that he or she had never received any financial or other benefit from any one of those rich businessmen and -women who so love to drop the names of our politicians. Then watch as that politician squirms to avoid answering your question.

Nkandla: the National Key Points Act must be ignored

May 16th, 2013

by Pierre De Vos.

28 comments

The Minister of Public Works must have jumped for joy when he was told that details of the abuse of public funds to upgrade the private home of President Jacob Zuma and Nkandla could be suppressed by invoking the truly authoritarian National Key Points Act. Passed in 1980 – as the finger-wagging, lip-licking, PW Botha and his securocrats were consolidating their autocratic powers and creating new mechanisms to censor the media to prevent another embarrassing Info scandal – the Act is a true relic of an undemocratic and oppressive past. No wonder it is only invoked selectively in an attempt to hide aspects of some – but not other – scandals washing like the proverbial tsunami over the Zuma government.

When journalists reported that a plane full of wedding guests (attending the lavish wedding organised by the politically connected Gupta brothers) had landed at Waterkloof Air Force base, they probably did not realise that they were potentially exposing themselves to the risk of a three-year prison term for breaching the provisions of the National Key Points Act. This is because Waterkloof Air Force base has allegedly been declared a National Key Point – although there is no way of knowing whether this is true or not because the list of National Key Points is itself a state secret. (For all we know there is no list of places declared as National Key Points at all and our government makes up National Key Points as they see fit in order to cover up corruption and maladministration – we simply do not know.)

But when, first, Gwede Mantashe and then later several cabinet ministers also commented on the scandal, they must have known that they were running the risk of breaking an infamous Apartheid law – if Waterkloof Air Force base is indeed a National Key Point as alleged. But because they were trying to protect the president, they seemed to have shown little concern about the possible dangers of breaching the provisions of the National Key Points Act – and rightly so. Pity the same level-headed attitude about this Act is not in evidence as far as the corrupt use of public funds to upgrade the private home of President Zuma at Nkandla is concerned.

Section 10(2)(c) of the National Key Points Act states that any person who:

furnishes in any manner whatsoever any information relating to the security measures, applicable at or in respect of any National Key Point or in respect of any incident that occurred there, without being legally obliged or entitled to do so, or without the disclosure or publication of the said information being empowered by or on the authority of the Minister… shall be guilty of an offence and on conviction liable to a fine not exceeding R10,000 or to imprisonment for a period not exceeding three years or to both such fine and such imprisonment.

This section is rather broad. It prohibits any person from revealing any information about any “security measures” (or lack of security measures, one would assume) applicable at a National Key Point. It also prohibits anyone from furnishing any information on “any incident” of terrorism or subversion that had occurred at the National Key Point. However, we are not allowed to know which areas have been declared National Key Points and we are asked to trust the relevant Minister who claims at will that this or that site has indeed been declared a National Key Point.

This means that the journalists and the ministers who furnished information to the public about the landing of a private plane at Waterkloof Air Force base and the relative absence of security measures at the time, as well as the manner in which the guests on that plane was dealt with, might – at a stretch – inadvertently have revealed information about “security measures” applicable at Waterkloof and in theory might have committed an offence in terms of the National Key Points Act.

But I suspect the journalists and the ministers will be safe from criminal prosecution. Although the section is indeed absurdly broad, the Act does not prohibit anyone from providing any information about the National Key Point at all. It is clear that the Act does not prohibit anyone from revealing any information on non-security related measures or incidents at a National Key Point. On this basis the journalists and the ministers who revealed information about the landing of a private plane at a National Key Point might escape criminal prosecution. They might argue that they only revealed information on events that took place there and did not reveal what security measures are in fact in place at Waterkloof.

If this is correct and if the journalists and Ministers did not commit a criminal offence when they revealed details of the Gupta plane landing, then the claim by the Minister of Public Works that the report on the Nkandla scandal cannot be made public and must be discussed behind closed doors because Nkandla is a National Key Point is demonstrated to be pure nonsense invented to hide the truth about the abuse of public funds. Just as the journalists and the ministers were allowed to reveal information around the landing of a plane at Watekloof, we are also allowed to reveal information about the use of public funds for the upgrade of the private home of President Zuma at Nkandla.

Soon the Public Protector will finalise her report on the Nkandla scandal. In a futile attempt to protect the president, the very cabinet ministers who ignored the possible infringement of the National Key Points Act in the Guptagate saga will invoke this law to try and suppress that report. Those of us who might obtain a copy of the Public Protector’s report might do well to follow the example of the various ministers by ignoring the absurd law and publishing the Public Protector’s report.

As a complainant in the matter I expect to receive a copy of that report. Taking my cue from the Minister Jeff Radebe, I promise to publish it on my blog as soon as I receive a final version of that report. After all, I have no evidence that President Zuma’s Nkandla home has indeed been declared a National Key Point, and would take any claim to the contrary by the Minister of Public Works with a pinch of salt.

And even if Nkandla had indeed been declared a National Key Point as claimed, a report dealing with the use of public funds to upgrade the private home of the president will surely not reveal information about existing security measures at Nkandla. For the same reasons the Ministers ignored section 10(2)(c) of the National Key Points Act when they discussed the landing of a private plane at Waterkloof, I will also ignore that section when provided with the Nkandla Report by the Public Protector.

Surely, if we agree with Minister Jeff Radebe, who said during the Guptagate scandal that “the truth shall set you free”, we all have a duty to expose rather than cover up corruption. It is for that reason – and because it will not break any law – that the Public Protector’s Report on Nkandla must and will be made public.

Zuma and the Guptas: the “symbiosis” continues

May 2nd, 2013

by Pierre De Vos.

80 comments

Not even the most gullible South African is going to believe that a plane with 200 guests attending the private wedding of a foreign national would have been allowed to land at an air force base if the father of the bride was not financially entangled with President Jacob Zuma and his family. Out of loyalty or embarrassment some Zuma supporters might pretend to believe that (now suspended) Chief of State Protocol Bruce Koloane is solely responsible for this scandal. The rest of us would be within our rights to demand that an independent criminal investigation be launched to find out whether the Prevention and Combatting of Corrupt Activities Act was breached.

It is not a secret that President Zuma and members of his family are financially entangled with the Guptas. (Previously, President Zuma was financially entangled with Schabir Shaik in what the High Court called a “mutually beneficial symbiosis” — before the relationship broke down when that encrypted fax temporarily landed Shaik in jail — and at death’s door — for corrupting and bribing Zuma.)

Of course, at present there is no proof that the “mutually beneficial symbiosis” between the Zuma family and the Gupta family is directly to blame for the Waterkloof fiasco, as there is no proof that President Zuma himself instructed officials to break the law in order to help his Gupta pals. It might be that the private plane was received at Waterkloof military base, that the guests entered South Africa without any customs inspection, and that the guests were escorted by specialist policemen all the way to Sun City without Zuma’s personal knowledge. The Guptas have always bragged about their connections with the Zumas and this might have led the relevant politicians and the officials that take orders from them to break the rules to accommodate the Gupta wedding party. Sometimes in order to receive preferential treatment all you need is for people to know you have the Big Man in your pocket. A wink and a nod will do the rest.

What are the elements of the “mutually beneficial symbiosis” between the Zuma family and the Gupta family? Rumours have swirled around the nature of the financial entanglement of the Guptas with the Zuma family and the influence this has bought the Guptas. As there is no independent corruption fighting body in South Africa that is independent enough, brave enough and powerful enough to investigate corruption allegations against either President Zuma and his family members or against any of the Guptas, the exact nature of the possible benefits that flow from the Guptas to the Zumas and from the Zumas to the Guptas remain unknown. But there are many proven facts, along with untested allegations and circumstantial evidence, about this relationship that will probably never be aired in court because of the absence of an independent corruption fighting body to look into whether these links have crossed the boundaries of legality.

Late last year the Mail & Guardian reported that there was evidence that the Gupta family was helping first lady number four, Bongi Ngema-Zuma, pay off her R3.8-million home loan. We also know that Duduzane Zuma, President Jacob Zuma’s 29 year old son, jointly control Mabengela Investments with Tony Gupta while JIC Mining Services is also majority-owned by the Guptas and Duduzane Zuma. There are other links: on Thursday President Zuma was supposed to board an air force Oryx helicopter at 14:00 from Swartkop air base to Sun City to attend the Gupta wedding ceremony, but these plans were shelved after the uproar about the abuse of the Waterkloof military base.

We also know that state-owned enterprises have spent more than R100 million in “advertising” in the Gupta-owned New Age newspaper, despite the fact that the newspaper has not been able to provide audited circulation figures. Two years ago the Sunday Times alleged that the Guptas might have had a role in influencing the appointment of CEOs and chairmen in key state-owned enterprises and that this was raised at an ANC National Working Committee (NWC). The Sunday Times claimed that the Guptas telephoned at least three deputy ministers and told them they were to be promoted days before Zuma announced his cabinet reshuffle; phoned several ministers to assure them that their jobs were secure ahead of Zuma’s announcement; bragged about their influence, telling one ANC premier he was “fortunate” they went to his office to see him — as many other public officials had to meet them at the Guptas’ home. Several of these claims have been denied — in general terms — by some of those involved.

Of course, the influence of the Guptas goes beyond Zuma and the ANC. Helen Zille last year admitted to having visited the Guptas’ home, where she received a donation for the DA – although she made the startling claim that she had no idea the cheque came from the Guptas. (She did enthuse about the food, which apparently was delicious.)

But given the proven facts about the shared business interests of the Gupta and Zuma families, the widespread rumours of how this entanglement is allegedly being used by the Guptas to gain some benefits from their association with the Zuma family (they reportedly often boast of their influence over Zuma) and the brazen nature of the current breach of national security, it would be bizarre (but not unexpected) if the police fail — at the very least – to investigate the Guptas for breaching the corruption laws.

Section 3 of the Prevention and Combating of Corrupt Activities Act of 2003 creates an extremely broad definition of corruption. It punishes both the person receiving or offering to receive any “gratification” and the person who gives or offers a “gratification”. The Act punishes people who take or give “gratifications” when the “gratification” is given to corrupt either the person who is offered the “gratification” or with the understanding that the corrupted person would influence others to act in a corrupt way.

This means if someone — a Gupta family member, say — hands money to the president or provides employment for a child of the president or co-opts the president’s child as a business partner, or pays the bond on the house of one of the president’s wives with the intention of creating a “mutually beneficial symbiosis” with the president for corrupt purposes, he or she is committing a crime. It matters not whether the president ever intended to be corrupted. Neither does the Act require the person providing the “gratification” from intending to get the benefit for which the bribe is being offered directly from the person the gratification was provided to.

As the Shaik judgment illustrated, there is no need to link a specific payment or provision of a specific “gratification” with the actual benefit derived from it. The state would therefore not have to show that a specific payment or benefit was made in order to buy special treatment for the Gupta wedding guests. All it would have to show is that there was an intention to buy the favour of the president for the purpose of obtaining favours from him or those directed by him in future. As long as there was an intention to corrupt and as long as a benefit was given with that intention, the person who gave the benefit is guilty of corruption.

The person receiving the benefit can also be convicted of corruption, whether he or she had the intention actually to do a favour for the person offering or giving the bribe or not. As long as he or she knew the benefit was provided for a corrupt purpose, he or she will be guilty of corruption — even if no favours are actually done in return and even if he never intended to do such favours. This much is made clear by section 25 of the Act which states that a person charged with receiving a benefit cannot offer as a defence that he or she did not have the power, right or opportunity to perform or not to perform a specific act benefitting the corruptor or never intended to provide the benefit for which he or she was bribed.

This means that if, say, a president receives a benefit from a friend who had the intention to corrupt him — to buy his influence — and the president knew or reasonably ought to have known this was the corruptor’s intention, the president himself is guilty of corruption when he accepts the “gratification” — even if he had no intention of committing a corrupt act or of influencing somebody else to commit a corrupt act.

Of course it is easier to prove that the receiver of the benefit is corrupt if he or she actually did some favour for the corruptor or influenced another person to do the corruptor a favour. Section 3 sets out what kinds of favours will be considered as corrupt, stating that this will be the case if you have a legal obligation (in terms of statute, contract or the like) to act in one way and you act differently, for example because you act illegally, dishonestly, in an unauthorised, incomplete or biased manner and this amounts to the abuse of a position of authority, a breach of trust, or the violation of a legal duty or a set of rules or that amounts to any other unauthorised or improper inducement to do or not to do anything.

The nature of the “gratification” that must be offered, given or accepted is defined extremely broadly too. It includes giving money, any donation, gift, loan, fee, reward, valuable security, property or interest in property, as well as any office, status, honour, employment, contract of employment. It would also include any payment, release, discharge or liquidation of any loan, obligation or other liability (like paying off another person’s bond) as well as any other service or favour or advantage of any description including any right or privilege. This means if you accept the offer of someone repaying the bond on your wife’s house and you ought to have known that this offer was made for a corrupt purpose, then you are guilty of corruption yourself.

By setting out these principles I am not suggesting that I have access to evidence to prove that any of the Guptas gave the various benefits to members of the Zuma family with the intention to corrupt them. Neither am I suggesting that there is hard proof that various members of the Zuma family received “gratifications” from the Guptas knowing that this was intended to buy the influence of the president or any other family member. What I am saying is that given the bizarre favouritism shown to the Guptas by members of the government (who allowed a plane with their private wedding guests to land at a military base and then provided an official 40-man police convoy to accompany the guests to the wedding), any independent corruption-fighting body would at the very least immediately have started an investigation into the possible links between the “gratifications” provided to various Zumas and the benefits received by the Guptas in return.

But this will not happen because there is no truly independent corruption-fighting unit in South Africa who would decide — based on the prima facie evidence and acting without fear, favour or prejudice — to investigate either the Guptas or the president for potential involvement in a corrupt relationship. In any case, if there were such a body, a decision to launch such an investigation would have meant the end of its existence — just ask the Scorpions. Of course, the fact that both the Zuma family and the Guptas know this might or might not be a mere co-incidence.

CAR: President Zuma’s attack on the dignity of all citizens

Apr 2nd, 2013

by Pierre De Vos.

65 comments

President Jacob Zuma and the version of the ANC he currently leads are, for obvious reasons, not great fans of the Latin maxim “veritas liberabit vos” — the truth shall set you free. There are many recent examples of this disdain for the truth (and the disdain for ordinary citizens this represents), but nothing illustrates this fact more clearly than the manner in which our government is dealing with the crisis arising from the killing of several of our troops in the Central African Republic (CAR).

When a government believes that its own actions are justifiable and that the vast majority of citizens will support it if they knew all the relevant facts relating to a specific event or action, it will have nothing to fear from telling its citizens the truth. But when a President and the members of the party he leads know that their intensions are dishonourable and that the support of voters could not be guaranteed if those voters were told the truth, that President and the members of the party he leads will invariably try to hide the truth, attack the patriotism of those who ask for more information, call into question their motives and invoke national security in order to avoid having to face up to their own dishonesty and questionable motives and actions.

When a President and the governing party have nothing to fear, they will trust the citizens of that country enough to play open cards with them. An open, transparent and essentially honest government respects the inherent human dignity of ever citizen — whether that citizen is a tenderpreneur, a teacher, a taxi driver, an informal trader or a social grant recipient. For ordinary citizens, it is profoundly empowering when a President and his government display such honesty. This is because through such honesty the President and his government signal their willingness to treat all citizens as individuals with an equal moral worth, capable of making informed decisions about who they are, how they wish to live and what is best for them and their children. It signals a relationship of trust between citizens and those servants temporarily elected to govern citizens.

Conversely when a President and his government are deceitful or when they attempt to hide the truth from citizens, it reveals their disdain for ordinary citizens and for the democratic process. For such a secretive and dishonest government, citizens are not fully human: they have no right to ask questions or to be informed about government actions. Neither do they have a right to take part in debates about the wisdom of individual government policies or actions or to try and influence such actions to prevent the government from making more deadly mistakes in the future.

Citizens are treated as chattels — good for working at minimum wages in the mines, cleaning the streets or earning money for big corporations and the government who taxes these corporations. In such a quasi-democracy, the President and his government will promise not to wage war on their obedient corporate servants as long as pesky citizens do not demand to be treated with the honesty and respect that every human being deserves as of right.

Unfortunately, the cynical speech delivered by President Jacob Zuma at the memorial service for those of our soldiers who died in the CAR, suggests that President Zuma does not respect the human dignity of ordinary South Africans. Neither does he respect the right of citizens to take part in the democratic process. In his speech President Zuma stated that:

The problem in South Africa is that everybody wants to run the country. Government must be given the space to do its work of running the country to implement the policies of the ruling party that was voted into office by millions of our people. There must also be an appreciation that military matters and decisions are not matters that are discussed in public, other than to share broader policy. No country discusses its military strategy in public in the manner in which South Africa is expected to do in this country. Those who are engaging in this game should be careful not to endanger both the national interest and the security of the Republic while pursuing party political goals.

In a democracy in which the human dignity of all are respected, citizens do not only exercise their democratic rights (as individuals imbued with an inherent human dignity) once every five years when they vote for the political party of their choice. In his magisterial Doctors for Life judgment, former Chief Justice Sandile Ngcobo affirmed that democracy requires more than “allowing” citizens to vote every few years. Rather democracy also includes a participatory aspect, as citizens in such a democracy co-run the country with the government temporarily elected to serve all citizens. Quoting from a General Comment of the United Nations Human Rights Committee, Ngcobo stated that:

Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organise themselves. This participation is supported by ensuring freedom of expression, assembly and association.

Firmly placing this right to participate in the affairs of the country and to influence the manner in which we are governed in-between elections within an African and South African context, Ngcobo continued:

The idea of allowing the public to participate in the conduct of public affairs is not a new concept. In this country, the traditional means of public participation is imbizo/lekgotla/bosberaad. This is a participatory consultation process that was, and still is, followed within the African communities. It is used as a forum to discuss issues affecting the community. This traditional method of public participation, a tradition which is widely used by the government, is both a practical and symbolic part of our democratic processes. It is a form of participatory democracy.

In response to demands for more clarity, President Zuma now claims that ordinary citizens have no right to ask whether the government we elected acted correctly when it sent our sons to die in a foreign country for one of the various — often conflicting — reasons provided by different members of our government at different times. Neither, apparently, do we have a right to ask questions about the vague and often contradictory statements made about the reasons of the deployment of South African troops in the CAR.

As far as I am aware, citizens have not asked our government to reveal details of future military actions that could endanger our troops. Revealing such plans would obviously not be appropriate. But that is not the issue here. Ordinary citizens are asking why troops were sent to the CAR and for some honesty about what had really happened when rebel forces in that country killed 13 of our soldiers.

Not only do South African citizens have a right to ask these kinds of questions, they have a patriotic duty to do so. A failure to hold the government accountable and to demand some transparency would dishonour our troops and would make us all complicit in the attempt by President Zuma and his party to turn us into chattels with no inherent human dignity and no agency to decide for ourselves whether our government did the right thing or not.

The urgency of the matter is highlighted by the fact that we now have two directly contradictory statements from the Presidency about the deployment of troops in the CAR. When additional soldiers were sent to the CAR earlier this year, the Presidency stated that:

The employed members of the SANDF will assist with capacity building of the CAR Defence Force and will also assist CAR with the planning and implementation of the disarmament, demobilisation and re integration processes.

But this week at the memorial service President Zuma changed his story, stating that:

When the security situation in the CAR deteriorated in the late 2012, our government made an assessment that resulted in the deployment of 200 additional troops in the CAR as a protection force for the trainers and the military assets that were already in that country. These additional soldiers were not trainers. They were not deployed to train but as a protection force for the trainers.

It is difficult to see how both these claims can be true. The latest statement says nothing about our soldiers assisting with the demobilisation of rebels. It also explicitly states that the soldiers were not sent to assist with capacity building (or training) of the military. This obvious contradiction suggests that our government has not been honest with us about the real reasons for deploying more troops to a country in the middle of a civil war.

We are now told that our troops were sent to protect the trainers training the CAR military. But the SANDF itself admitted that our soldiers might have protected business assets. Who is lying? And how can it be treasonous to ask such questions? Moreover, if this new version is true, why was it so important to continue training the CAR soldiers involved in a civil war in which rebels expressed animosity to our presence there? What happened to South Africa’s previously stated commitment not to get involved in the internal affairs of another African country unless sanctioned by multilateral agreement by the UN or the AU?

Claiming that when citizens raise such questions they are potentially endangering the security of South Africa and of our troops, rob citizens of their dignity and of their democratic rights. It treats us all like minor children in a patriarchal and authoritarian household. But most of us do not live in that R200 million Nkandla homestead, but rather in a vibrant participatory democracy. If President Zuma does not like this, he can always retire to his security bunker at Nkandla.

On the legality of the continued presence of SA soldiers in the CAR

Mar 28th, 2013

by Pierre De Vos.

104 comments

An unconfirmed number of South African troops remain stationed in the Central African Republic (CAR), while some reports claim that South Africa has sent (or is preparing to send) more troops to that country, whose government was last week illegally overthrown by rebel forces. The new rulers are not recognised by either the United Nations or the African Union. Pressing questions arise about the legal basis for the continued presence of our troops in the CAR, both in terms of South African and international law. Here is why.

In the run-up to the invasion of Iraq by the United States and Britain, the invading parties sought a resolution from the United Nations Security Council to sanction its invasion in order to provide it with cover in terms of international law. This resolution was blocked when France – a permanent member of the Security Council – threatened to veto it. South Africa, to its credit, also stood firm in its opposition to such a resolution on the grounds that an invasion would breach the UN Charter, which safeguards the sovereignty of all states. Many international lawyers argued at the time that the invasion was in breach of international law and that George Bush and Tony Blair could be prosecuted at the International Criminal Court for war crimes. Realpolitik prevented this line of argument being pursued seriously by any of the states opposed to the invasion.

Later, serious concerns were also raised about the legality of NATO bombings in Libya during the uprising against the regime of Muammar Gaddafi, ostensibly under the cover of a UN Security Council resolution allowing actions to be taken to protect civilians in that country. Questions about the legality of military involvement in the internal affairs of a sovereign country stems, first and foremost, from article 2.4 of the United Nations Charter, which states that:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

But there are requirements of customary international law that protect even states that are not members of the United Nations. These rules of customary international law impose legal duties on all states not to violate the sovereignty of another State; not to intervene in the affairs of another State; and not to use force against another State – unless formally sanctioned by bilateral agreements or by the UN or African Union.

It is therefore important to establish that South Africa has a legal mandate to station troops in the CAR, whether the mandate is provided by an official resolution of the UN Security Council or the African Union or by a valid bilateral agreement with the CAR. Although our presence in the CAR cannot be equated with the unlawful invasion of Iraq, many of the same international law legal principles are applicable in the present case.

President Jacob Zuma announced in early January this year that a decision had been taken to send more South African troops to the CAR “to render support in fulfilment of an international obligation of the Republic of South Africa towards the CAR”. This international obligation of South Africa apparently arose from a bilateral agreement between the South Africa and the CAR. As far as I can tell, the agreement has not been made public, but we have been told that in terms of the agreement South Africa would provide VIP assistance to the deposed President Francois Bozize and “assist with capacity building of the CAR Defence Force” and “with the planning and implementation of the disarmament, demobilisation and re-integration” of rebels into the army.

In a written reply in Parliament South Africa’s Minister of Defence stated that the bilateral agreement between South Africa and the CAR was in the form of a memorandum of understanding (MOU) “to capacitate the Armed Forces of Central African Republic (FACA) to be able to defend and protect the sovereignty and territory of the Central African Republic. Based on the signed MOU the SANDF deployed a contingent to train FACA on VIP Protection, Sub Units and Junior Leader Group.

Section 231 of the South African Constitution states that “[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces” (NCOP), unless it is “of a technical, administrative or executive nature, or an agreement which does not require either ratification or accession”. It is at best unclear whether the agreement between South Africa and the CAR required assent by the National Assembly and the NCOP. If it did require assent, and if the two houses of Parliament had not approved it, the agreement would never have come into force and South Africa’s deployment of troops would have been illegal from the start as there would not be any legal agreement with the CAR.

However, even if the agreement was only of a technical nature, section 231 requires that it must be tabled in the National Assembly and the NCOP “within a reasonable time”. I have been unable to find any information about whether the required tabling in fact took place. Hopefully the Speaker of Parliament, the Presidency or the Minister of International Relations can allay fears that the requirements of our Constitution might have been ignored in this regard.

Even if all the constitutional requirements for the establishing of a valid bilateral agreement were complied with, it is far from clear that the bilateral agreement concluded between South Africa and the CAR are still in existence. There are two rules of international law regarding treaties that might suggest that no binding agreement exists at present.

First, the rule of rebus sic stantibus establishes the principle that an agreement between states is valid only for as long as the basic facts present at the time the agreement was concluded remains the same. This rule has arguably been slightly altered by article 62 of the Vienna Convention on the Law of Treaties of 1969, which now requires that the treaty would only be invalidated if “the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty and the effect of the change is radically to transform the extent of obligations still to be performed under the treaty”.

Given the fact that the agreement was reached at a time when there was an AU recognised government in place in the CAR and when there was indeed a CAR military to train, and given further that South Africa, as a loyal member of the AU, do not recognise the rebel government in the CAR and that the AU prohibits South Africa from supporting the unlawful rebel government in any way, I would suggest that the essential requirements for the continued validity of the bilateral agreement have fallen away.

However, there is a second reason why the bilateral agreement must surely now be void, namely that when it becomes objectively impossible to fulfil the conditions of the agreement, the agreement between states will terminate. This is confirmed by article 61 of the Vienna Convention that states that the impossibility of performing a treaty is a ground for terminating a treaty if “the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty”.

Thirteen South African soldiers have died at the hands of rebel forces who are now in control of the CAR. President Bozize has fled to Cameroon. The CAR army has disintegrated. It is therefore impossible to train the CAR army or to protect President Bozize as per the original bilateral agreement. In these circumstances it is not possible to argue that South Africa can fulfil its obligations in terms of this bilateral agreement with the CAR.

Given these circumstances, it is far from clear that the continued presence of South African troops in a sovereign country does not violate the UN Charter as well as customary international law.

Imagine, for a moment, that the apartheid government had been overthrown by Umkhonto we Sizwe while troops from the United States of America were stationed in the country in terms of a bilateral agreement in order to protect President FW de Klerk and to train members of the then South African Defence Force. If the US had refused to withdraw its troops (after a bloody battle with Umkhonto soldiers in which 13 US soldiers had been killed), citing the noble mission of protect American business interests and bringing peace and stability to us primitive Africans, most of us would have been outraged at the continued presence of the US army seen as having tried to prop up the apartheid regime. Many lawyers would also have cited the international law principles mentioned above to question the legality of the continued presence of US troops in what would have then been a newly liberated state.

While the rebels who now rule the CAR cannot in any way be equated with Umkhonto and the ANC (the latter having fought against apartheid which the UN had labeled a crime against humanity), the legal issues would be similar. At the very least, the Presidency, the Minister of Defence and the Minister of International Relations should address concerns that South Africa’s continued presence in the CAR is unlawful, and that this exposes our troops to possible prosecution by international bodies. Statements made by AU officials or in a BRICS communique, affirming the need of States to support efforts to stabilise the situation in the CAR do not change the legal position regarding our troops.

As the original purpose of the deployment of troops to the CAR has now fallen away, President Zuma is also constitutionally required to inform Parliament forthwith whether our troops will remain in the CAR and if so what the legal basis of this continued deployment might be. After all, the last thing we want is a kind of mission creep, something which got the USA into a terrible mess in Vietnam in the first war it ever lost. We might then also be told whether private business interests of ANC aligned individuals played a role in the January deployment and in any decision to remain in the CAR despite the fact that the original purpose of the mission has become impossible to pursue.

Cardinal Napier, you have a moral and legal duty to report sexual abuse

Mar 19th, 2013

by Pierre De Vos.

133 comments

The Catholic Church has rightly been criticised for its handling of the widespread sexual abuse of children by priests across the world. In order to protect the “good name” of the church, many abusers were never reported to the police but were sent for “treatment” and counselling before being “redeployed” by the church to other positions. Some of them then went on to abuse other children. Unfortunately Cardinal Wilfred Napier, who has dealt with such cases in South Africa, seems to be unaware that if he fails to report those priests to the police he is committing a criminal offence and exposing himself to a 5 year prison sentence.

In a controversial interview with a BBC radio journalist, Cardinal Napier indicated that when he dealt with cases in which priests have sexually abused children, he followed a protocol developed by the Church itself. He insisted that each case was referred to the Doctrine of the Faith office and the Pope. Cardinal Napier seems to believe that the Church is the victim of unfair publicity. In the interview he complained:

I really would resent it if someone said to me you mishandled that case. Some of the priests went, according to the wisdom of the time, the best information that we had from psychologists, they went for treatment, came back and have been under – what we call it – personal surveillance and have functioned quite normally ever since. Others left the priesthood, they were laicised, but it depended on each case being handled differently because of the peoples conditions were different.

Nowhere in the interview does he say that he actually reported any priests who have confessed that he sexually abused children to the police. Instead, displaying an admirable understanding and compassion for abusers (an understanding and compassion not displayed towards others involved in consensual and often loving sexual behaviour), he argued that such priests act out of a defect in their own character and that they are not necessarily culpable for what they did.

In the interview Cardinal Napier explicitly states that he is not qualified himself to say whether such priests should be held criminally liable or not. They might be held criminally liable. They might not be criminally liable. But that is for others to decide and is not a concern of the Cardinal. He would rather not think about whether the criminal justice system should deal with such priests or not.

His certainty about sexual matters – including about the alleged “evils” of contraception, abortion and homosexuality – suddenly gives way for an admirable doubt. If only Cardinal Napier could conjure up the same doubt when pontificating about consensual adult sexual behaviour and about the right of women to make decisions about their own bodies and about reproduction – but priests can’t fall pregnant, so this is probably too much to ask.

When pushed by the BBC interviewer about whether there was a duty to report the sexual abuse of children by priests to the police, the Cardinal (rather shockingly) makes the following claim:

That depends on what country you were in. For instances in our country, in South Africa, there was no way I as bishop could have accused somebody and reported the case and made a case with the police. It would have to be the victim themselves who would have to make the case against the person and only then could the justice system kick in. I don’t see how you could say that if the victim then said we don’t want this thing to go to the police, how can you then say the Church is mishandling the thing by respecting the victim’s own request. I think we’ve got to be fair and not generalise.

This statement is patently false. In terms of section 42 of the Criminal Procedure Act any private person is legally entitled without a warrant to arrest any person “whom he reasonably suspects of having committed” a Schedule 1 offence. Schedule 1 offences include any sexual offence against a child. This means the Cardinal had the legal right to arrest any of the offending priests at the moment that he was told by that priest or anybody else about the abuse. To my knowledge no priest was ever arrested and handed over to the police in this manner. Why not? What kind of perverse moral worldview drives a Bishop or Cardinal to deal with allegations of sexual abuse against children without involving the police?

One of the big problems with child sexual abuse is that adults purporting to act in the interest of children (but often acting in their own interest) often put pressure on the child not to report sexual abuse. A child is by its very nature vulnerable and cannot always make an informed decision about such matters. On the other hand, a Bishop or a Cardinal (as well as the child’s parents who might very well be in awe of the Bishop or the Cardinal) serve in a position of great authority vis-à-vis the child. The Cardinal or the Bishop may also have an undue influence on the parents of an abused child as they might very well hold the revered Church leader in awe. In these circumstances a Bishop or a Cardinal who is required to deal with allegations of sexual abuse of a child by a Priest has an enormous responsibility to do so in the best interest of society and not in the interest of the Church.

The problem is that a Bishop or Cardinal dealing with such cases will invariably be conflicted. On the one hand, he will have a duty to protect the Church and the priests. On the one hand he will have a moral and legal duty to protect the child (and other children who might in future fall prey to an abusing priest). For any moral person, this should not be much of a conflict at all as the best way to protect children is to report the abuser to the police and to ensure that he is successfully prosecuted and sent to prison for the abuse. Where this is not done (often based on the claim that the disempowered and traumatised child did not want to press charges), the Bishop or Cardinal manages to protect the Church to the detriment of the abused child and to all other children who in future may potential fall victim to the abusing priest.

This is exactly why section 54 of the new Sexual Offenses Act (adopted in 2007) now requires anyone “who has knowledge that a sexual offence has been committed against a child” to “report such knowledge immediately to a police official”. A person who fails to report such knowledge, is guilty of an offence and is liable on conviction to a fine or to imprisonment for a period not exceeding five years or to both a fine and such imprisonment.

The Act cannot have any retrospective effect. But from the moment the Act came into force, the Cardinal had an obligation to report his knowledge of all cases of child sexual abuse by priests to the police – even those cases that occurred before the Act came into effect. If he had failed to do so, he would be guilty of a crime and could be arrested and prosecuted for failing to adhere to the law. It is unclear whether Cardinal Napier has indeed reported his knowledge of all cases of child sexual; abuse by priests to the police. Judging from his false statement above, he may very well not have done so. If this is true, it would mean that he has committed one or more criminal offenses and could be prosecuted.

In Smit v Van Niekerk the Appellate Division (as it then was) found that members of the clergy do not enjoy a special privilege not to divulge information given to them in the line of their duties. For technical reasons the Constitutional Court (in S v Bierman) declined to revisit this rule when it came before it. This means that in our law somebody like Cardinal Napier does not enjoy any special privilege regarding any confession made to him (either during the confessional or outside it as part of his administrative duties) and he cannot legally refuse to report serious allegations of child sexual abuse by any priest to the police on the basis that the allegations were made to a priest and are therefore privileged.

If the police was serious about the protection of children against child sexual abuse and about the prosecution of offenders, it would of course raid the Cardinal’s offices and take him in for questioning in an attempt to uncover all cases of child sexual abuse by priests in South Africa and then to prosecute those cases where a winnable case could be built. But this would not be necessary if Cardinal Napier fulfilled his legal duty and on his return to South Africa immediately reports his knowledge of all child sexual abuse cases by priests to the police.

Nkandla: Why is the ANC protecting the Emperor who is not wearing any clothes?

Mar 17th, 2013

by Pierre De Vos.

76 comments

Members of the ANC and the government it leads often complain about the unfair manner in which the non-SABC sector of the media portrays the party and the government. And it is true that some members of the media suffer from a form of Afro-pessimism and do not often dwell on the government’s successes and achievements. After all, many white middle class consumers of the media do not want to read about what is going well in the country because this does not accord with their own prejudiced view of the ANC. But sometimes the government and the ANC can only blame itself for the bad publicity that rains down on it. Nothing illustrates this point better than the manner in which the government and the ANC have so far handled the Nkandla scandal.

A lesson very few democratic governments ever learn is that when a big scandal like the Nkandla palace upgrade breaks, the worst thing you can do is to try and hide information about the scandal from journalists and the public. When you do this, you give the scandal legs. In a democracy like ours, some if not all of the facts will eventually be revealed – usually in a piecemeal fashion – allowing journalists to continue reporting on the scandal. If you come clean from the start and reveal all the sordid facts, the scandal will die down after the initial flurry of reporting and condemnatory editorials. Journalists have a notoriously short attention span and in the absence of stories on how the government is trying to cover up the use of public funds to enrich the President, it would not report on the Nkandla scandal.

The reason why we are all still talking and writing about the Nkandla scandal – centred around the use of over R200 million of public funds to improve the private palace of President Jacob Zuma at Nkandla – is because the government, bizarrely, continues to claim that Nkandla is a “National Key Point” and that revealing any information about how the money was spent on this private residence would endanger national security and the security of the President.

This move places the interests of President Zuma above the interests of the ANC and the government it leads. Public Works Minister Thulas Nxesi now has to defend the indefensible, damaging his own image and that of the government in the process – all to protect the Emperor of Nkandla. Nxesi can surely not really believe that it is right to invoke a draconian apartheid era piece of legislation to protect Zuma, whose financial advisor was convicted of bribing the President? Why the ANC has not intervened to protect itself from the political fall-out of their leader’s spendthrift ways is beyond me. Why are they putting the interests of one man above the interests of the party and the country?

The unconvincing attempts at hiding the truth about the abuse of public funds to enrich the President are also counter-productive. Both the scandal and (probably even more so) the attempt at a cover-up, continue to damage the President’s image and create the unfortunate impression that our President sees himself as an old style Emperor who is entitled to draw on public funds to ensure his private comforts and that of his extended family.

This week Minister Thulas Nxesi wrote a letter to National Assembly speaker Max Sisulu informing him that he wants the details of a task team report on the upgrade of President Zuma’s Nkandla palace to be discussed by MPs behind closed doors and “in camera” if necessary. He called the report a “sensitive” matter, by which I can only assume he meant that it is a matter that could embarrass the Emperor. He wrote that tabling the report in Parliament would be “tantamount” to debating a state security matter in public. (By the way, is this increasing use of the word “tantamount” by members of our government not at least a bit scary? I recall how various apartheid era Ministers contemptuously spat out that word whenever they wanted to intimidate their critics. ”His criticism is tantamount to giving comfort to communists and terrorists!”)

In a pointless attempt at hiding the truth about this scandal, Nxesi then continued:

Therefore I propose that the report be tabled and dealt with by a parliamentary committee responsible for security matters or that a mechanism be devised by Parliament that will permit the matter to be discussed without compromising the security of the president and his immediate family.

Section 59(1) of the Constitution states that the National Assembly must “conduct its business in an open manner, and hold its sittings, and those of its committees, in public.” This gives effect to some of the founding values of our Constitution, enshrined in section 1 of that document: “a multiparty system of democratic government, to ensure accountability, responsiveness and openness”. Section 59(2) further states that:

The National Assembly may not exclude the public, including the media, from a sitting of a committee unless it is reasonable and justifiable to do so in an open and democratic society.

The Rules of Parliament confirms the need for openness and transparency but similarly allows for secret meetings to protect private parties and if it is reasonable and justifiable to do so in an open and democratic society. Of course, it can never be reasonable and justifiable in a democratic society to try and hide facts about the spending on public funds on the upgrade of the private palace of the head of state. As we all know, this is all part of a smoke and mirrors game played by the Minister in a futile attempt to protect the President. (I am assuming that no one who claims this is a national security issue actually believes this to be true.) There is nothing in the National Key Points Act that prohibits Parliament from discussing details of the amounts of public money spent on the private palace of the President – whether that palace was declared a National Key Point or not.

Section 10 of the Act prohibits any person from furnishing “any information relating to the security measures, applicable at or in respect of any National Key Point… without being legally obliged or entitled to do so”. The Minister is constitutionally required to account to the South African public for the spending of public funds via the National Assembly. There is therefore a constitutional obligation on him to reveal how and on whom the R200 million was wasted – although he is not required to reveal the actual security measures in place at Nkandla. The last time I checked, the Constitution trumps any law passed by the PW Botha regime, which means his attempt at avoiding accountability is not in line with the Constitution.

If there were really serious concerns about the safety of the President (who knows, maybe we are not being told about an imminent invasion of South Africa by the Lesotho navy), any aspects of the report dealing with actual security measures the National Assembly could deal with such circumscribed aspects of the report in camera, while the rest could be made public. Such justifiably “secret” information would relate to details about where guards are stationed, when they rotate, what weaponry they have at their disposal, the nature of the security barriers erected and what escape routs are available to allow the President to escape ahead of the invading Lesotho navy.

But because the report does not deal with the security measures in place at President Zuma’s private palace, this would mean it would have to be made public in its entirety. Instead, the report deals wholly or in large part with how much money was spent on what kinds of upgrades the public paid for at President Zuma’s private palace at Nkandla. Besides, even by his own admission, “only” R117 million of the more than R200 million was actually spent on security related cost. Even on a most generous interpretation of the facts, the Minister has a legal duty to reveal those parts of the report not dealing with the R117 million so called “security upgrades”.

Of course, all these attempts by Nxesi to protect his boss – despite the harm this is doing to the ANC and the government – are futile. If the report is tabled in camera in a special committee created for this purpose, any member of the National Assembly who sits on this secret committee could then reveal extracts from the report whenever they have an opportunity to do so during sittings of the National Assembly. This would be so even if one agreed with Nxesi’s bizarre statement that the National Key Points Act prohibit the report from being made public.

This is so because section 58 of the Constitution states that all members of the National Assembly “are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything that they have said in, produced before or submitted to the Assembly or any of its committees; or anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.”

Opposition MPs could therefore not be prosecuted for revealing parts or all of the “secret” report in the Assembly. This just goes to show how futile Nxesi’s attempts at keeping details about the enrichment of our President will ultimately be. Given this fact, why he is bothering to protect his boss when this so clearly is not in the interest of the ANC and the government, perhaps says more about his own political ambitions and his lack of principles than it says about his loyalty to the ANC and to the citizens of South Africa.

Why justice is not always blind

Feb 25th, 2013

by Pierre De Vos.

135 comments

Lady Justice, the Roman goddess of Justice, is supposed to personify justice in a modern state. She is depicted as balancing the scales of justice on which she impartially weighs the case for and against those who appear before her. She is also depicted as blindfolded, encapsulating the ideal that justice is or should be meted out objectively, without fear or favour, regardless of the identity, wealth, power, or weakness of the person who is being judged. The reality is often far removed from this ideal.

To be blunt: especially in criminal cases a person’s social status (sometimes associated with his or her race), his or her wealth and political or other connections sometimes play a decisive role in determining whether he or she will be convicted of a crime. It can also influence how a person is treated after conviction.

There are several reasons for this. Some of these reasons can be traced back to the nature of South Africa’s common law criminal justice system – a hangover from the colonial era. Others relate to South Africa’s peculiar history and its specific racial and political dynamics.

The common law model of criminal justice is adversarial in nature, pitting the state against the accused in a highly structured and regulated battle of wits. This differs from the inquisitorial system prevalent in many civil law countries in which a presiding judicial officer takes an active role in the investigation in an attempt to determine the truth. Because the inquisitorial system is not primarily seen as a battle between two evenly matched sides, the procedural rules are less strict than in the adversarial system.

It is assumed that in the adversarial system the battle between two closely matched sides will eventually reveal the truth. There are numerous rules regulating the presentation of evidence at trial to ensure that the accused would not be disadvantaged in this battle. The accused has the right to remain silent and not to testify in his or her own defence — although adverse inference may be drawn from this refusal to testify in certain circumstances. The state has a duty to share information about its case with the defence. During the trial, the ritual of the cross-examination of witnesses often provides dramatic and revealing moments on which the outcome of a trial can hinge.

Because the trial is staged as a battle between the two sides and not primarily as an inquisitorial search for the truth, good lawyers are well placed to exploit these processes to the advantage of their clients.

In an adversarial system the quality of an accused’s legal representation can therefore make a big difference. If an accused has access to unlimited funds, he or she can hire the best lawyers and experts who will be able to pursue every legal loophole and will also be able to exploit every procedural safeguard available to the defence. For example, when President Zuma was charged with fraud and corruption he hired some of the best (and most expensive) lawyers in the country. His legal team could pursue the so called “Stalingrad option”, successfully using every available legal avenue to prevent the case from being heard. Eventually Zuma’s lawyers also managed to have the charges against him withdrawn (with a little bit of help from the spies). If he did not have access to unlimited funds, this would not have been possible and he might well have been charged long before the Polokwane elective conference.

Section 35(3)(g) of the Constitution states that an accused person has a right to a fair trial which includes the right to have “a legal practitioner assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly”. There are two problems with this provision. First, no one has an absolute right to legal representation if he or she is charged with a criminal offence. Many accused do not qualify for legal assistance because they earn more than R5500 per month or because they are charged with less serious offences. Most middle class people will therefore not qualify for legal aid, nor would they be able to afford a decent lawyer.

Second, if you qualify for legal aid you do not have a right to the best possible legal representation that money can buy. Some Legal Aid lawyers are inexperienced and are not capable of providing effective assistance to their clients. But even good legal aid lawyers do not have access to the kind of funds that the lawyers of Oscar Pistorius do. They cannot hire independent forensic experts or pathologists and do not have the funds to employ other experts to cast doubt on the evidence presented by the state.

In South Africa, apart from wealth, impermissible considerations relating to social status and political connections can also influence the outcome of a case. Would Bees Roux have gotten often so lightly after killing a police officer if he was not a famous (white) rugby player representing the Blue Bulls? Would President Zuma’s case ever have been dropped by the National Prosecuting Authority (NPA) if he had not been elected President of the ANC and if he did not have connections in the intelligence services? Would cricketer Herschelle Gibbs have gotten off so lightly from his drunken driving charge if he was not a famous cricketer?

Of course, the widespread perception of bias does not only relate to the treatment of the accused. Given the fact that most members of the South African Police Service (SAPS) are not particularly well trained and lack the investigative skills to pursue all cases with equal dedication, some serious crimes are not investigated as well as they should be. Crimes that affect foreign nationals, famous or well-connected individuals, upper middle class people, or crimes which have caused a public outcry are often prioritised. When the media reports on a crime it places political pressure on the SAPS to solve that crime, but many serious crimes are never reported in the media as the victims of these crimes are essentially invisible to the media. We often read about the murder of a famous musician, an acting judge, a starlet or a politician, but how often do we read about the murder of a poor women living in a rural area.

There is also a good chance that awaiting trial and convicted prisoners will receive different treatment depending on their race, social status and political connections. Would Oscar Pistorius have been held in a police cell instead of prison, if he was not a famous sports star? Would the “terminally ill” Schabir Shaik have been released on medical parole to improve his golf handicap if he was not the guy convicted of bribing the President?

Despite these problems, accused person will generally get a fair and impartial hearing before a presiding magistrate or judge. But presiding officers cannot investigate cases, cannot provide better legal representation to those who cannot afford it and cannot ensure that all crimes are investigated with the same diligence and vigour. Neither can they generally ensure that the NPA act without fear, favour or prejudice in deciding who to prosecute and who not. They can only judge the case presented to them by both side in the most fair and impartial way possible, weighing up the evidence like blind Lady Justice. But because the scales used by Lady Justice are not always properly calibrated, the outcomes of different cases can sometimes seem inconsistent and it can appear as if different people get different treatment depending on factors that have nothing to do with the guilt or innocence of the accused.

corruption

Prosecuting authority: President Zuma’s conflict of interest

Breytenbach: too little fear, favour and prejudice?

What’s that smell? Must be the name droppings

Nkandla: the National Key Points Act must be ignored

Zuma and the Guptas: the “symbiosis” continues

CAR: President Zuma’s attack on the dignity of all citizens

On the legality of the continued presence of SA soldiers in the CAR

Cardinal Napier, you have a moral and legal duty to report sexual abuse

Nkandla: Why is the ANC protecting the Emperor who is not wearing any clothes?

Why justice is not always blind

Follow me on twitter

Quote of the week

Search

Twitter Feed

New from Seminar Room

New from Updates

Recent Comments

Archives

Categories

Links