Constitutional Hill

corruption

Concourt arms deal case was always a long shot

Sep 26th, 2011
by Pierre De Vos.
29 comments

This weekend it was reported that President Jacob Zuma told the ANC’s NEC that he had decided to appoint a commission of inquiry into the arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him. The Mail & Guardian claimed that the President had told the ANC NEC that the Constitutional Court was set to rule in November on activist Terry Crawford-Browne’s application to force President Zuma to reopen the arms deal investigation and that he therefore had to act in anticipation of a ruling against him.

The Mail & Guardian reported that according to three NEC members, Zuma was aware that the majority of the court’s judges would rule in favour of Crawford-Browne. According to the report, Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference next year.

This report sounds strange and deeply troubling, to say the least. There are at least three reasons why the report, if true, is cause for serious concern. (Whether the NEC members falsely leaked information to the newspaper is just as likely true as that the President actually said what he was reported to have said.)

First, the Constitutional Court is NOT set to rule against President Zuma in this case by November this year, as the full oral arguments are only set to be heard on 17 November this year. A ruling would therefore only be handed down sometime in 2012 (quite a few months before the ANC’s next elective conference takes place at Mangaung at the end of 2012). Either the journalist got this wrong or President Zuma said something to the NEC that was factually clearly wrong.

Second, the case has not been argued fully before the Constitutional Court yet and has only been set down for argument for 17 November. The judges could therefore not possibly have made up their minds on how to rule, as they are required to keep an open mind until such time as they have heard the oral arguments presented to them. If they had indeed made up their minds and if they had intimated to anyone how they would rule in a case not yet argued before them, they would be acting in a highly improper manner. If there was proof for the statement by the President, it could easily form the basis of a successful recusal application of all those judges who had already made up their minds.

Besides, even if they had made up their minds before oral argument, how on earth would President Zuma have known how the judges viewed the case without having allowed the intelligence services to spy on the judges of the top court or without having somebody – maybe one of the judges on the Constitutional Court – acting as a spy for the President?

This could mean that the statement by President Zuma to the NEC was wrongly reported by the media because the newspaper faked the report or because NEC members leaked false information to it. Or – alternatively – it could mean that the President was either lying to the NEC or that he was admitting to highly improper behaviour on the part of one or more Constitutional Court judges (for making up their minds before a hearing or for leaking confidential information to the President) and/or he was revealing unlawful conduct on the part of the intelligence service.

Either way, this would rightly constitute an enormous scandal. Either the newspaper’s journalist who wrote this story is a deeply unethical and dishonest person in which case that journalist should be fired forthwith (something that seems very unlikely, in my opinion, given the lack of a strong response from the ANC to this report), or the journalist was fed lies by the three NEC members. Alternatively, something really, really scary is happening within our Presidency and lies, deception or at best shocking incompetence and stupidity is the order of the day in that office.

Thirdly, the statement by the President is almost certainly not factually correct. I for one would be quite surprised if a majority of judges of the Constitutional Court were set to rule against the President in terms of the application to force him to institute an arms deal inquiry. In my opinion, the constitutional law arguments (as opposed to ethical arguments or political arguments) in favour of an order by the court to force the President to appoint a commission of inquiry are at best weak and at worst a little absurd.

In papers filed in support of this application, the applicants argue that the refusal by the President to appoint an arms deal inquiry is unconstitutional because the failure is irrational in that it does not serve any legitimate government purpose and is not rationally connected or related to any such purpose. In other words, the applicant relies on a rule of law argument to contend that the Constitution places a positive duty on the President to take a very specific action (namely, to appoint a commission of inquiry into the arms deal).

Usually the rationality test set out above is applied in cases where the President or some other organ of state has done something and it is found that this action was irrational. Here the applicant wants a court to find that a failure to take a specific action was irrational – which is a very difficult argument to make.  In effect, the applicant is arguing that the Constitutional Court should order the President to make a policy decision to give effect to his duties that arise in terms of section 83 and 84 of the Constitution.

Relying upon the founding provisions of section 1 of the Constitution, which states, inter alia, that the Republic of South Africa is founded on the values of the supremacy of the constitution and the rule of law and a multi-party system of democratic government, to ensure accountability, responsiveness and openness and relying further on section 2 which affirms the supremacy of the Constitution, the applicant is contending that if this is read with section 84(2)(f) there is a positive obligation on the President to appoint commissions of inquiry when serious questions arise about large scale corruption and bribery in government. To quote from the papers:

His contention is that under the rule of law foundational to South Africa’s multi-party system of government, the President is obliged to ensure accountability, responsiveness and openness. Conduct inconsistent with these foundational values is invalid. Obligations imposed by the [Constitution], which include the responsibility of the President to appoint a commission of inquiry in the circumstances upon which the applicant relies, must be fulfilled. The refusal to appoint a commission of inquiry is accordingly constitutionally invalid.

It is clear that under section 84 of the Constitution the President has the power to appoint a commission of inquiry. It is also true – as the applicant contends – that this must be read in conjunction with section 83 of the Constitution, which places a duty on the President to uphold, defend and respect the Constitution as our supreme law and requires the President, further, to promote the unity of the nation and that which will advance the Republic.

But it is at best a stretch to then argue that the President cannot accountably and responsively ignore or refuse well founded requests for the appointment of a commission of inquiry in the present circumstances. It is an even greater stretch to imagine that a court will order the President to institute such an inquiry and that it will dictate the terms of reference of the commission of inquiry.

Even though the lack of a credible criminal investigation may lead one to question whether the executive has been serious in the past about uncovering corruption in the arms deal, and even if one can assume that the President has a positive duty in terms of the Constitution to take steps to ensure responsive, accountable and open government, the separation of powers doctrine has so far been relied upon by our courts to limit its interference with policy decisions of this nature which are usually taken by the Executive alone.

A court might well find that there is a positive duty on the President to do something about the allegations of arms deal corruption, but for a court to order the President to appoint a commission of inquiry and then to delineate the terms of reference of that Commission (reportedly the fear that has “forced” the President to make an announcement about the arms deal inquiry) would constitute an extraordinary invasion of the terrain usually occupied not by the courts but by one of the democratically elected branches of government.

It might well be – as the applicants suggests in its papers – that a reasonable apprehension has arisen that the arms deals may be tainted by misfeasance and/or malfeasance, in the forms of irregularities, fraud and corruption. It might also be that (as the applicants argue) this apprehension has arisen because of the criminal convictions of one Tony Yengeni, a former African National Congress (ANC) Chief Whip in parliament, and Schabir Shaik, a businessman and financial adviser to Jacob Zuma, the president of both the country and the ANC.

Interestingly, the applicant also relies upon the call for a commission of inquiry made, albeit obiter by Nicholson J in the case of Zuma and Another. v The National Directory of Public Prosecutions and Others. Recall that this was the case in which Nicholson basically found – based on newspaper articles – that there was some kind of conspiracy or at least a good possibility of a conspiracy – against Jacob Zuma, so maybe this played a role in the President’s thinking. Who knows? 

What I do know is that the case asking the Constitutional Court to order the President to institute an arms deal inquiry was always going to be a long shot. Personally, I would be quite surprised if any judges of the Constitutional Court (let alone a majority of its judges) decided that it was appropriate to order the President to institute such an inquiry. Unlike in the Glennister case where the majority of the Constitutional Court could rely on the fact that a failure to create an independent anti-corruption fighting body infringed on ordinary citizen’s social and economic rights and was also required by our international law obligations, in this case the request by the applicants is so specific that it would be seen as an interference with the powers of the executive. A separation of powers concern would therefore inevitably arise.

Maybe President Zuma “merely” has very bad lawyers advising him about his prospects in the Constitutional Court, or maybe he was duped into appointing this commission of inquiry by people who wrongly told him that the Constitutional Court was likely to order him to institute such an inquiry in any case. Either that, or the President is more wily than we give him credit for and he is playing an incredibly clever but highly risky game in which he is aiming to destroy all his enemies and detractors within the ANC through a carefully constituted arms deal inquiry.

One thing I do know, and that is that the Constitutional Court was highly unlikely to have ruled in favour of Crawford Brown in this case – especially in the terms requested by Crawford Brown in his papers. If the President thought that the Constitutional Court would rule against him, this may say more about the paranoia and incompetence of the President and those who advise him, than about the likely outcome of a case not even yet argued before the Constitutional Court.

Why it is in interest of the ANC for the Minister of Public Works to resign

Sep 22nd, 2011
by Pierre De Vos.
93 comments

It has now been more than two months since the Public Protector issued her report which contained damning findings against various officials and a politician about the manner in which the Department of Public Works and the Police dealt with a lease agreement in Durban with businessman Roux Shabangu.

After an investigation the Public Protector found that the procurement by the Department of Public Works of the lease “was not in accordance with a system that is cost effective and competitive, as is required by section 217 of the Constitution, the relevant provisions of the PFMA, Treasury Regulations and supply chain management rules and policies”. It this found that this “failure amounted to improper conduct and maladministration”.

It is important to note that the Public Protector is constitutionally and legally empowered to investigate maladministration and unlawful conduct relating to public funds, to make findings about such matters and to recommend remedial action. When the Public Protector does so, these findings do not constitute mere “allegations” — as alleged by Speaker of the National Assembly, Max Sisulu. Sisulu stated that the Public Protectors findings against Mahlangu-Nkabinde and Cele had no weight in law. ”These are allegations by the Public Protector. The minister has not been found guilty by any court of law,” he said.

The Speaker was clearly confusing (or perhaps conflating) two distinct modes according to which legal processes lead to adverse findings being made against officials and politicians regarding maladministration and the wasting of taxpayers money. One such a process is where a person is criminally charges and is found to have committed a crime. The other is where the Public Protector has investigated a matter and has made findings that an official or a political has acted unlawfully (which may or may not include a prima facie finding that a criminal offence has been committed).

One may act unlawfully without committing a crime. If the law authorises a person to spend money only in a particular way and only for a particular purpose, that law may not deem it to be a criminal offence when the money is then spent unlawfully. The law is broken but no criminal offence is committed as the law might not provide for criminal sanction in cases of such unlawful action. Although the law criminalises corruption, official who spend money in a manner not authorised by the law might not be guilty of corruption as the unlawful spending might not have been done for a corrupt purpose (or the investigators might not have been able to uncover the corrupt purpose).

The drafters of the South African Constitution understood this very well. In order to protect ordinary citizens and to provide them with a cheap and easy manner to challenge maladministration or unlawful action on the part of  officials or politicians, the Constitution created the office of the Public Protector. The Public Protector has the job of protecting us all — rich and poor — from the vagaries of officialdom and has the duty to investigate, make findings and order remedial action in cases where it would not be appropriate for the Police to get involved in investigating the unlawful action or maladministration that inevitably arise in any system of government.

The system can only work if the findings of the Public Protector are respected and acted upon. That is why section 181(3) of the Constitution explicitly states that: “Other organs of state, through legislative and other measures, must assist and protect these institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”. That is also why section 182 of the Constitution states that the Public Protector has the power “to investigate any conduct in state affairs, or in the public administration in any sphere of government, that is alleged or suspected to be improper or to result in any impropriety or prejudice; to report on that conduct; and to take appropriate remedial action”.

In terms of section 239 of the Constitution, organs of state would include the President and Minister of Public Works. However, it is unclear whether the President and the Minister has so far acted in a manner that is aimed at assisting and protecting the Public Protector to ensure its effectiveness. If they ignore the findings of the Public Protector, this failure in itself can be viewed as unlawful and a court could be approached to request it to order the implementation of the findings. Of course, if the President or the Minister believes that findings and recommendations made by the Public Protector are clearly wrong or cannot be implemented, they are free to approach the court to have the findings or recommendations reviewed and set aside. Absent such a move they have a duty to implement the findings.

This morning the Minister of Public Works, Gwen Mahlangu-Nkabinde told SAFM that she is not going to resign as there was no reason why she should  resign. At first blush this might appear to constitute a further unlawful flouting of the recommendations of the Public Protector. However, at this point it might be helpful to recall that the Public Protector has made the following finding against the Minister of Public Works:

The conduct of the Minister of Public Works in relation to the procurement by the DPW for the SAPS referred to in this report and in respect of the investigation by the Public Protector failed to meet the requisite stewardship expected from her, including the use of public resources as envisaged by sections 195 and 217 of the Constitution and the Batho Pele Principles, and her obligation to cooperate with the investigation in terms of the Public Protector Act, and accordingly constituted improper conduct as envisaged by sections 181(3) and 182(1) of the Constitution.

The remedial action proposed by the Public Protector was phrased carefully to avoid any separation of powers concerns. Thus the Public Protector recommended that:

The President to consider taking action against the Minister of Public Works for her actions referred to in this report and the Report of the Public Protector on the procurement of the lease of the Middestad building… [and, inter alia that] the Minister of Public Works [should] report to the Cabinet on her actions in relation to the procurement of the leases of the Middestad and the Transnet buildings by the DPW and her failure to fully cooperate with the Public Protector in connection with the investigation thereof, within 60 days of the date of the issuing of this report.

The Public Protector did not order the President to fire the Minister and did not order the Minister to resign as this would have been inappropriate. Only the President has the power to appoint and fire members of his cabinet and it is up to the President to decide whether he wishes to fire a Minister or wishes to ask a Minister to resign. It is up to a Minister to fall on her sword if she believes that she has disgraced the government in which she was graciously asked to serve by the President. This is not a purely legal issue, but an ethical issue and an issue of open, accountable and democratic government.

It would be naive to think that a President would ask a Minister to resign or that a Minister would resign of her own accord, “merely” because this is the right thing to do in order to protect the government’s image and to prevent the perception from taking hold that the government condones maladministration and unlawful action. In democracies, Presidents or Prime Ministers usually fire Ministers and Ministers usually resign because of a public outcry. Where the public becomes outraged by the unlawful actions of a member of cabinet and it becomes clear that the credibility of the government is being damaged, a resignation usually follows.

The failure of the President to act against the Minister of Public Works and her failure to “do the right thing” and resign, will of course further erode trust in our government and in our belief that the government is serious about dealing with maladministration and unlawful behaviour. In the long term the authority of the government will be eroded.

I would therefore contend that it is not in the interest of the government and of the ruling party for the President not to take action against the Minister. Although there may not be immediate consequences for the President and the party he leads if no action is taken, in the longer term it will contribute to the creation of a perception that our government condones maladministration and unlawful action. And once that perception has firmly taken hold in the imagination of the electorate, it is difficult if not impossible to erase.

At present this might not seem problematic as there is as yet no credible opposition party to whom a majority of the traditional voters of the ANC would want to turn. But such a party will emerge at some point in our history and then the ANC will lose the election. When the ANC loses an election, some of us will remind the leaders of the party that it had squandered the trust of the South African electorate by not being seen to act decisively against maladministration and unlawful action by members of the Executive. Members of the ANC who take a long term view and wish to safeguard the image of the governing party would do well to place pressure on the leadership of the party to act on the recommendations of the Public Protector.

If I had been a member of the ANC NEC, I would have argued very persistently that it is in the interest of the ANC for the President to ask the Minister of Public Works to resign. If ANC NEC members fail to speak up, they would — in my opinion —  deserve one day to sit in the opposition benches of Parliament where they would have time to reflect on the mistakes made while in government.

Why Ramatlhodi promotes an autokratic kleptocracy

Sep 1st, 2011
by Pierre De Vos.
156 comments

It is by now trite to note that in South Africa there are very serious, some would say obscene, disparities in wealth between rich and poor, made worse by the recent economic turmoil in the world. More than a million South Africans have lost their jobs over the past two years, joining the roughly 35% of the population that are unemployed or has long since stopped looking for work at all.

Many people continue to live in informal settlements (in shacks that are often flooded and are bitterly cold in winter) and many go to bed hungry. Many cannot afford the pay-as-you-go water and electricity services ostensibly provided to them by the state – if these services are provided to them at all – while many others receive substandard health care and are forced to send their children to dysfunctional schools where teachers are often not in class to teach and where children may well have no access to libraries, laboratories or sufficient computer facilities.

Of course, if one happens to be an ANC leader – inside or outside of government – or if one is one of the captains of industry (who became rich by exploiting black workers during the apartheid era and remain rich today by donating money to the ANC), one would probably not directly be affected by this reality. After all, one will be driving around in a car (who was paid for by tax money that could have fed a starving child) costing more than a million Rand (that is, when one is not renting a fancy car for hundreds of thousands of Rand a year), or one will be living in the Mount Nelson Hotel (if one is not living in a R8 million house provided by the state). Just yesterday it was reported that the state had forked out R183 million on brand new mansions to house cabinet ministers, money that could have been used to house around 2,000 poor families.

It is against this background that one should read the bizarrely immoral opinion article (penned by Ngoako Ramatlhodi, ANC NEC member, chairperson of the ANC National Elections Committee and Deputy Minister of Correctional Services) and published in The Times today.  Mr Ramatlhodi probably knows that the credibility of the ANC and the government it leads is being eroded by lavish and wasteful spending on the perks of party leaders and by the constant revelations of government corruption in our media and by the Public Protector. 

It is therefore not surprising that he is now using the South African Constitution and our indpendent constitutional institutions as scapegoats to try and divert attention from the failures of the government. Our government is failing to address the most basic needs of the poor while government and party leaders live lavish lifestyles at the expense of taxpayers and of the poor, whose lives could have been improved by the money wasted on extravagant perks and the millionaire lifestyles of ANC leaders.

According to Mr Ramatlhodi the Constitution is deeply flawed because while it bestows political power on the ANC (who by virtue of divine intervention will always represent the interests of all black South Africans even when its leaders steal from the very masses it claims to represent and when these leaders misuse funds – earmarked to address the social and economic inequality in our society - to satisfy their own venal and selfish needs), it also supposedly ”immigrates” substantial power away from the legislature and the executive and vests it in the judiciary, Chapter 9 institutions and civil society movements. He bemoans the fact that the ANC ”embraced what one calls the emptying of the state” and then continues:

Apartheid forces sought to and succeeded in retaining white domination under a black government. This they achieved by emptying the legislature and executive of real political power. On the other hand, the liberation movement was overwhelmed by a desire to create a society bereft of any form of discrimination and, as a result, made fatal concessions. We thus have a Constitution that reflects the great compromise, a compromise tilted heavily in favour of forces against change.

Thus the Constitution - interpreted and applied by the judiciary, and Chapter 9 bodies such as the Public Protector - as well as civil society groups fighting for real transformation of our society have been allowed to rob the ANC of its power to govern the country through the legislature and the executive, blocking the “fundamental change” required to turn South Africa into a true kleptocracy. (Ok, I paraphrase the honourable Deputy Minister’s words slightly, but pardon me for interpreting this opinion piece as arguing for more power for the ANC to act in the interest of its leaders without having to account to anyone for how it spends and wastes our money for the benefit of the few.)  

Mr Ramatlhodi is also upset that people challenge unlawful and unconstitutional actions of the government in our courts and that they dare to take part in democratic debates by expressing views with the aim of trying to influence public opinion for the better of society. God forbid that democracy should actually lead to a situation in which the majority of South Africans might disagree with something the governing party – with its divine right to rule - might have said or done. The ANC can surely not allow democracy actually to, well, work. What would become of the cars, the houses, the tenders, the champagne, the whiskey, the farms, the trips to visit drug-dealing girlfriends in Swiss jails?

The other tactic is to challenge as many policy positions as possible in the courts, where the forces against change still hold relative hegemony. The legislature itself has not escaped the encroaching tendency of the judiciary, with debatable decisions taken by majority views, in some instances. Decisions of the Judicial Services Commission have equally been systematically subjected to judicial reviews. The process of delegitimising the commission and its decisions has been initiated through the instrument of “public opinion”.

These views are not only uninformed and demonstrably wrong; they are also callous and dangerous. Blaming the Constitution, the courts and chapter 9 institutions for the failures of the government sufficiently to change the lives of ordinary citizens who suffered under apartheid is like a man blaming an umbrella for making him wet or a white South African blaming black citizens for apartheid. 

First, it is based on the assumption that the government of the day – who currently happens to be led by the ANC – should have a free hand to do what it likes because any check on the exercise of power of the legislature and the executive would turn these branches of government into ineffectual and impotent institution. This is of course nonsense, as the majority party in Parliament can pass any law it wishes – as long as it does not infringe on the rights of the very citizens who vote for it.

Second, it assumes that a majority party will always have the best interest of the country and its people at heart, that it will never act in a selfish or corrupt manner and that it must always be trusted to respect the rights of everyone and to act in a manner that will advance the interests of those who most rely on the state for their survival and well-being. This is a truly bizarre view as governments are formed by people – and not ordinary people but politicians whose job it is to amass power and to act in their own interest while pretending to serve the public - who are not superhuman and will not act like angels unless they are forced to. 

Lastly, this assumes that the ANC government actually always acts in the interests of the poor and the marginalised – even when it spends R183 million on new houses for a few cabinet Ministers, when cabinet Ministers stay at the Mount Nelson Hotel at taxpayers’ expense, when its officials enter dubious and probably corrupt leases with well-connected businessmen and waste billions of Rand in the process, money that could have been spent on really making a difference to the lives of those South Africans who are unemployed and depend on the state for its survival and well-being.

The view of the courts expressed in the Ramatlhodi piece is also either shockingly uninformed or deliberately misleading, which is, I guess, understandable as one needs to manufacture an enemy when one is losing the trust of the electorate because one is so obviously acting in a selfish and venal manner to line one’s own pockets to enable one to live a life of luxury at the expense of the poor. If Mr Ramatlhodi had read only a few judgments of the Constitutional Court, he would have known that our highest court – far more than the legislature and the executive – has been acting as a champion of transformation and of the interests of the poor.

If it was not for that court, the government would not have been forced to provide anti-retroviral drugs to poor, mostly black, pregnant women, thus saving the lives of hundreds of thousands of (mostly black) babies – all while people like Mr Ramatlhodi kept criminally silent. How many hundreds of thousands of babies died as a result of this communal silence, Mr Ramatlhodi? He would have known that thousands of people have been protected from unlawful eviction through the intervention of that court.

He would have known that the Constitutional Court has enthusiastically endorsed affirmative action and land reform and has taken the ANC government to task for not doing anything to scrap some of the most scandalous pieces of racist apartheid era legislation. One wonders whether this oversight might have been caused by the fact that leaders were too busy to benefit from tenders and to wine and dine their friends at taxpayer’s expense at the Mount Nelson Hotel or at their government provided mansions to actually care enough to table changes to the oppressive apartheid laws in our democratic Parliament. 

He would have known that the Constitutional Court declared invalid sections of the truly shockingly named KwaZulu-Natal Slums Act adopted by the ANC government in that province because that Act tried to punish the landless or homeless poor for being landless or homeless (which is understandable, I guess, because a person like Mr Ramatlhodi would probably not want to be reminded of the landless and the homeless when he is sipping champagne in his R8 million government provided house).

He would also have known – just to be fair – that sometimes the Constitutional Court has not been as progressive in its judgments as some of us would have liked but that this have almost always been when it has endorsed government policies or pieces of legislation that are anti-poor, anti-women or anti- the marginalised and the vulnerable. Thus it found that it was ok for the government to cut off the electricity of destitute people and for the government to have pay-as-you-go electricity meters installed in the homes of Joburg residents – even if this was only done in poor areas where black South Africans live and not in rich areas where the ANC leaders and white people live.

It also found constitutionally valid a law which basically left destitute a women who had looked after her partner for more than ten years because that law only required the estate of a deceased partner to support a women if she had been legally married to her partner. That the ANC of Mr Ramatlhodi would support such a law is probably not surprising, seeing that the ANC President has now nominated a man for Chief Justice who has made the following remarks in a case in which a man was found guilty of raping a innocent and defenceless child (in the case of S v Sebaeng (CA 16/2007) [2007] ZANWHC 25 (22 June 2007) about the “shortcomings” in the victim’s evidence:

She claims that the sexual intercourse was very painful but there was clearly nothing about her to suggest that she was in any pain when she arrived home and even during her stay there at her grandmother’s home … When she arrived at her grandmother’s home, the only strange things observed and spoken about by those who saw her were the Simba chips, the R30.00 and the 9 o’clock appointment with the Appellant….

One can safely assume that [the accused] must have been mindful of her tender age and thus so careful as not to injure her private parts, except accidentally, when he penetrated her. That would explain why the child was neither sad nor crying when she returned from the shop notwithstanding the rape. In addition to the tender approach that would explain the absence of serious injuries and the absence of serious bleeding, he bought her silence and cooperation with Simba chips and the R30.00.

So, while Mr Ramatlhodi believes we should entrust our legislature and executive with unlimited powers, I do not: not this government, not a DA government not ANY government anywhere in the world. Down that road lies tyranny and oppression of the worst kind. As the ANC government of which Mr Ramatlhodi is a member has demonstrated over and over again, even where the power of a government is limited and even where the Constitution exhorts it to address the needs of the poor and vulnerable, it often acts in the interests of its own members and not that of the broader public whose interests it claims to serve.

Whether the ANC is in power or anyone else is in power, we need the very institutions that Mr Ramatlhodi attacks. These institutions – created by our Constitution – protect us from the government of the day, no matter which party might serve in government.  This is true in South Africa as it is true in the United States, France, India or Nigeria. If  it was not for institutions like our courts – interpreting and enforcing the progressive provisions of our constitution – and of the Public Protector – exposing the scandalous corruption of Ministers and of government officials - how far away would we have been from Muammar Gaddafi’s Libya?

The “opinion” of Mr Ramatlhodi is no more than an argument in favour of an autocratic kleptocracy in which a few well-connected party leaders and businessmen would live an obscenely opulent life, while the rest of us wouldl try to survive in a world that would be nasty, brutish and probably far too short.  

Parliament cannot change Public Protector’s report, so why bother?

Aug 10th, 2011
by Pierre De Vos.
111 comments

It has been almost a month since Public Protector Thuli Madonsela issued her damning report on the manner in which a lease was negotiated for new police headquarters in Durban. In the report she found that both the Minister of Public Works and the Police Commissioner had acted unlawfully and was guilty of maladministration.

So far President Jacob Zuma, who is legally entitled to appoint and hence also to fire the relevant Minister and the Police Commissioner, has done very little – except to “study” the report and to pass the buck by handing the report to Parliament for further “processing”. Parliament, of course, is constitutionally required to hold the President as well as the Minister and the Commissioner to account, but Parliament cannot take action against either. Only the President can do that.

By referring the report to the Speaker of Parliament, who in turn referred the matter to Parliament’s Standing Committee on Public Accounts (Scopa), the President has signalled that he is at best reluctant to act on the recommendations contained in the report and at worst is trying to evade responsibility altogether by needlessly asking Parliament to deal with a report on whose recommendations it has no real power to act.

Themba Godi, chairperson of the spending watchdog committee, confirmed that the reports had been referred by National Assembly Speaker Max Sisulu to the committee two weeks ago. He said he was seeking advice from parliamentary legal advisers on how to proceed because this was the first time that the committee would be dealing with a report by the Public Protector and it was thus uncharted territory.

Section 8 of the Public Protector Act requires the Public Protector to submit to Parliament half-yearly reports on the findings in respect of investigations of a serious nature, which were conducted during the half-year concerned. The Public Protector must also submit a report to Parliament on the findings of a particular investigation if she deems it necessary or in the public interest; if it requires the urgent attention of, or an intervention by Parliament; if she is requested to do so by the Speaker of the National Assembly; or if she is requested to do so by the head of the NCOP.

Section 9 of the Act also makes clear that there is nothing that prohibits Parliament from considering any report issued by the Public Protector and from debating it. Parliament just has no power to do the President’s work for him.

There would therefore be nothing wrong with Scopa - after studying the report - calling both the Minister and the Commissioner to come and explain themselves and by asking them some of the hard questions which the President should have asked them when the report was published. In this way Parliament can play its oversight role by demanding answers from two of the main culprits involved in this scandal. Parliament can also call former Minister Geoff Doidge to get clarity on whether the current Minister lied to the Public Protector about the handover of her Ministry, something which would constitute a criminal offense in terms of section 11(3) of the Act.

In other words, Scopa can do some of the work the President should have done long ago – although it cannot do all the President’s work for him even if it wanted to as it cannot usurp the power of the executive to discipline or even fire the Minister and the Commissioner. While Parliament can therefore further engage with the culprits it is powerless to take action against the culprits. It is also powerless to rewrite the report of the Public Protector and to undo the findings made by the Public Protector. Only a court of law can review and essentially undo the findings made by the Public Protector.

No matter what Parliament does, the findings of the Public Protector stands unless the findings are reviewed and overturned by a court of law.

It therefore makes little sense that Parliament was asked to engage with the report, as Parliament can do very little about the findings made in the report. This suggests that the only reason the report was referred to Parliament was to tie up the findings of the report in essentially meaningless bureaucratic processes in order for President Zuma to be able to claim that something is being done about the findings while nothing is actually being done.

As a last resort, Scopa can also call the President before it to come and explain what action he is intending to take against those found to have acted unlawfully and if he is not intending to take any action why he is doing so and why he is ignoring a report of the Public Protector. This is because the President – as the head of the executive – is accountable to Parliament and serves at the pleasure of Parliament – at least on paper. Like other organs of state the President has a duty to respect the independence of the Public Protector and not to act or fail to act in such a way that he undermines its efficiency.

Invoking section 181(3) of the Constitution, Scopa can demand that the President act on the report, as a failure to act would fatally hamper the effectiveness of the Public Protector. Recall that section 181(3) states that organs of state, through legislative and other measures, must assist and protect the institution of the Public Protector to ensure her independence, impartiality, dignity and effectiveness. To protect its effectiveness it needs to put as much pressure as it legally can on the Executive to implement the recommendations of the Public Protector.

But even if Scopa took the unprecedented move of calling the President before it to account for his failure to act against maladministration and alleged corruption, Parliament cannot legally instruct the President what course of action he should take. Neither can Parliament absolve the President of the duty to act on the recommendations of the Public Protector. No matter how Scopa deals with the report, it is only the President that can act on it.

The fact that the President has seemingly chosen not to act on the report at all tells its own story, I guess. The utter failure to act on the report makes one wonder whether the Minister or the Police Commissioner might not be in possession of incriminating evidence of some sort - evidence that might implicate the President, those close to him or the ANC – which have made either of these two throroughly bad eggs politically untouchable. Is there another “family trust” out there that we need to know about? Just wondering.

PS: This morning I received the following email from the spokesperson for the Speaker of the National Assembly:

Good day Pierre

I am writing to let you know that the Speaker of the National Assembly has not referred the PP’s report to SCOPA. There was an error on the ATC of 27 July which error Mr Godi interpreted to mean that the report had been referred to SCOPA. I will issue a statement later in the day clarifying things, but in the meantime thought I would let you know so that you can correct your piece on constitutionallyspeaking.

Regards

Sukhthi Naidoo

Spokesperson

Speaker of the National Assembly

Who will guard the guardians?

Aug 5th, 2011
by Pierre De Vos.
74 comments

When I did my LLB degree many years ago, we still had to study Latin, which, alas, was not my strong point. Why we had to study Latin (and Roman Law, for that matter), I could never understand. As I pointed out at the time, some of the texts with which we uncritically had to engage were extremely problematic as they referred to slaves – who were usually pouring wine for their masters or stealing the master’s property (talk about cruel stereotyping).

I mean, really, how shockingly bizarre that no lecturer ever pointed out that slavery was evil and why no one thought that we should rather discuss the fact that today a person who practiced slavery would be hauled before the International Criminal Court (which admittedly had not existed back then) for crimes against humanity.

Nevertheless, I did learn a few Latin phrases to impress the boys and to demonstrate to my parents that I was a “real” law student who could invoke obscure Latin phrases when needed. One of these phrases, which came to me as I was reading the judgment of the Eastern Cape High Court in the case of Centre for Social Accountability v The Secretary of Parliament and Others, is: ”Quis custodiet ipsos custodes?” This phrase, Wikipedia now reminds me, is traditionally attributed to the Roman poet Juvenal and comes from his Satires and is literally translated as “Who will guard the guards themselves?”

In our constitutional democracy with its model of separation of powers, we vote for a political party (not for any individual) and members of Parliament are therefore not directly accountable to the voters. Although members of the executive are accountable to Parliament and must give account of themselves to Parliament, our constitution does not provide for a direct way to hold Parliamentarians accountable. They are only accountable indirectly, first to their parties and second to the public at large via the media.

But for this indirect accountability to work, political parties must fear the wrath of the electorate and must act decisively against members of their own party in Parliament when those members break the rules, engage in criminal activity or otherwise dishonour the institution of Parliament. Parliament must also operate in an open and transparent manner so that the media can keep the electorate informed about what members of Parliament get up to – reporting, of course, on both the positive and the negative aspects of the work of members of Parliament.

So, one should laud the Centre for Social Accountability and its lawyers for approaching, first, Parliament and then the court to gain access to further information regarding the so called Travelgate scandal. The Centre specifically sought to gain access to records of Bathong Travel, which later went into liquidation. The liquidators of Bathong instituted action during 2007 against a number (it is not disclosed how many) of members of parliament to recover monies owing by them to the company.

The reason for the Centre’s interest in these records is that it was alleged that the liquidators of Bathong Travel had recovered some R4.79 million from members of Parliament in relation to Bathong. Parliaments’ own “Briefing Document/Fact Sheet” stated that approximately 70 members of Parliament utilized the services of this agency and that there were evidence of complicity by certain members in possible fraudulent acts.

As the judgment wryly observes, there was “a distinctive lack of enthusiasm on the part of parliament to pursue the claims of the liquidators of Bathong against its members”. The court also pointed out that there was “a strong desire, for reasons not known but giving rise to wide speculation, on the part of parliament to prevent those claims from being pursued. It was particularly anxious to protect those claims from public scrutiny in a court of law”.

The Centre invoked the Promotion of Access to Information Act (PAIA) to try and obtain these records which Parliament was so anxious to hide from the public. The Grahamstown Division of the Eastern Cape High Court, in a judgment written by Alkema J, provided a ringing endorsement of openeness and transparency and reminded us that we - the public – are the one’s who should ultimately hold parliamentarians accountable, stating:

The escape from a secretive and closed system of government and the quest for an open, accountable and transparent system of government find expression in inter alia, the right of access to “any” information held by the State. It is now trite that such right must be interpreted to give effect to the new constitutional order of openness, accountability and transparency.

The Court then quoted from two Constitutional Court judgments, first, that of Shabalala and Others v Attorney-General, Transvaal and Another, where Mahomed DP said:

There is a stark and dramatic contrast between the past in which South Africans were trapped and the future on which the Constitution is premised. The past was pervaded by inequality, authoritarianism and repression. The aspiration of the future is based on what is ‘justifiable in an open and democratic society based on freedom and equality’. It is premised on a legal culture of accountability and transparency. The relevant provisions of the Constitution must therefore be interpreted so as to give effect to the purposes sought to be advanced by their enactment.

The second is Brűmmer v Minister for Social Development and Others where Chief Justice Ngcobo held:

The importance of this right … in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency ‘must be fostered by providing the public with timely, accessible and accurate information.

The salient legal question was, given this constitutional commitment to openness and transparency, whether Parliament was entitled by PAIA to withhold the records because these records contained “personal information” about members of Parliament. Section 34(1) prevents the unreasonable disclosure of personal information.  

In a judgment which, although not directly applicable also has resonance for the argument made by Julius Malema that he is a private person and that it is none of our business whether he is corrupt or not, the court noted that it is generally recognized that every person has an untouchable inner sphere of personal life where he or she has the sole autonomy to decide how and where to live his/her life, and where his/her decisions do not adversely affect other people. No interference by law is tolerated with conduct within this sphere, either by the state or by other individuals or institutions. At the heart of this right is the freedom of identity of each individual, enclosed in an area of private intimacy.

However, private information can be revealed where this informationd does not relate to the absolute inner core of a person’s identity. Relying on the pragmatic Constitutional Court jurisprudence on this issue, the High Court noted that there was a two stage test to decide when this could be done. The first part is that the person trying to keep information secret must establish a subjective expectation of privacy. This means that the person must first establish that the nature of the information is covered by the freedom of identity principle – in other words that subjectively viewed it is part of the inner sanctum of the private and personal life of the individual. The second part is that, objectively assessed, society must recognize such expectation as reasonable.

The Court then continued:

The personal life of a member of parliament, his or her personal preferences and beliefs, how he or she choose to live his or her personal life, what they do on vacation in the privacy of their holiday home – even if they travel there on state expense – how they spend their money and how much money they have to spend, all of this is no concern to the state. It is their business; not that of the state. Such information is covered by the principle of freedom of identity. But how they execute their duties as members of parliament; under what circumstances they claim payment in respect of travel vouchers; and whether or not they obey the rules of parliament and act in accordance with the code of conduct which society expects from its members of parliament, all of this is the business of the state.

The state has the right to know, and through the state, the members of society who have elected the members of parliament in an open and democratic society. The information sought is in relation to claims in respect of travel vouchers issued to members of parliament in their official capacities as members of a public body. Such information does not concern their private lives…

The Court therefore ordered the handing over of the requested information within 10 days as it was not reasonable to expect that Parliament could keep secret information that possibly showed malfeasance or even criminal activity on the part of our public representatives. 

One assumes that Parliament will appeal this judgment, which is a good thing as this will give the Constitutional Court another opportunity to confirm that the right to privacy cannot be abused by public representatives or politicians  to try and escape accountability.

In the end, if members of Parliament are allowed to plead privacy every time we wish to know how they have been spending our money and what they have been up to, we as members of the voting public will not be able to hold these members of Parliament and the parties they belong to properly accountable at the ballot box. And even members of Parliament – our supposed guardians – need to be guarded against with the power of our vote for which so many people have sacrificed.

A vile attack on a successful black woman

Aug 1st, 2011
by Pierre De Vos.
301 comments

As readers of this Blog know, I am not a great fan of the hate speech provisions in the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA), as I think these provisions are used far too often by people who wish to shut up others with whom they do not agree. In South Africa, it has become fashionable to shout “hate speech” whenever somebody says anything one does not like.

That is why I have argued that the hate speech provisions in PEPUDA should be interpreted narrowly to try and bring it in line with the Constitution, whose hate speech provisions are far more narrowly tailored than the provisions in PEPUDA.

But when I read the opinion piece by one Eric Miyeni in The Sowetan today I immediately thought that this is the kind of hateful and deeply reactionary and sexist drivel which qualifies as hate speech. Mr Miyeni is of the race-is-destiny school of thought, the school of thought which thrives on racial generalisations and assumes that one has no individual moral agency. One IS one’s race. One has no life, no moral core, no complex emotions and beliefs that are unique to oneself — one is only one’s race.

In this world, if one points out that a person is corrupt or has said something stupid, and that person happens to be black, one is automatically a racist. In this world view black people are not really individuals at all, but merely representatives of their race. This is scary stuff as it mirrors the racism of some white people who see one corrupt black person and then make assumptions about black people as a group. Instead of rejecting racial generalisations, it embraces such generalisations.

I grew up with many such people. They enthusiastically supported apartheid and propagated the most vile and vitriolic racist beliefs about black people. For them all white (Afrikaners) were good and pure and right (except if they joined the UDF or the ANC, in which case they became communists and traitors), while all black South Africans were dirty, stupid and dangerous criminals. (Vile nonsense, I know, but beliefs that are still quite prevalent amongst some white people in South Africa – even today.) If one criticised the National Party these people also invoked the power of the mob to discipline you, just like Miyeni did in his piece. I see very little difference between the hatred and prejudice of Miyeni and the hatred and prejudice of those white racists.

Today Miyeni attacked the editor off City Press, Ferial Haffajee, in an attempt to divert attention from the very awkward questions being asked about Julius Malema and the sources of his money. Fair enough — we are all entitled to our political opinions as we live in a democracy now. But when, in doing so, one descends into the dangerous waters of racial generalisations, one probably does not deserve respect from anyone. Thus Miyeni states:

Who the devil is she anyway if not a black snake in the grass, deployed by white capital to sow discord among blacks? In the 80s she’d probably have had a burning tyre around her neck. We know where she comes from.And today we must believe that Haffajee’s utter hatred of ANC politicians is based on journalistic integrity. Quadruple crap. I am more inclined to think that people like Haffajjee, who edits City Press, are most likely to be the kind that wakes up in the morning, sees their black faces in the mirror only to feel a wave of self-hatred rising up to nauseate them.

Of course, the (male) reporters who wrote the stories that Miyeni is upset about are not attacked. Neither are the black, male editors and columnists who often criticise the ANC and members of the tenderpreneurial black elite. Why not? Because they are not women, one assumes. Maybe Miyeni is still getting used to living in a country where women are “allowed” to succeed and where they do not have to obey the men of this world and make tea for them?

Can it be that Miyeni is a modern patriarch who cannot stand that a strong black woman is successful? So what does he do? He attacks her and hints that she should be necklaced. If ever there was a case of hate speech this is it. Recall that hate speech occurs where it can reasonably be construed that the author had the intention to be harmful or hurtful to somebody based on, amongst others, their race and sex.

Well, the hatred for Haffajee as a black and female editor who has dared to publish in her paper critical comments about another black person, oozes out of this vile piece. No reasonable person would doubt that the author had the intention to hurt Haffajee as a black woman.

The “opinion piece”, which sounds like it was written after the author might have had one or two cups of Motata tea, then proceeds with a justification for corruption — as long as the corruption is perpetrated by black businessmen (no women in sight here) and by black politicians. I quote:

The only real source of business for us is our government. Are we now being told that if we make money through government contracts, our only hope, we cannot use that money to help fellow black people who are in politics, who need private funding to function? Where then should black politicians get financial support?

Miyeni must not have heard of the Prevention and Combatting of Corrupt Activities Act, passed by the democratic Parliament in 2004, which criminalises the kind of activity he defends. If one is a “businessman” (black or otherwise) and if one bankrolls a politician who may be seen to have influence over the granting of tenders, then one is more likely than not committing a crime.

Even if one thinks about this in naked racial terms — like Miyeni does — this piece of legislation makes sense, because if such corrupt activities were not prohibited, only those black businessmen (and the businesswomen who Miyeni treats as invisible) who paid the right politician would ever get a tender. If one did not have the right connections or if one did not have the money to pay into the right trust account, one would not be able to get any tenders from the government — even if one happened to be black AND a man (women, once again, not really featuring in the world of Eric Miyeni).

So, that is why Miyeni’s rant is not only hateful and vile, but also illogical — even on its own terms. It is not a principled criticism of business practices in South Africa. It is not a principled argument for Broad Based Black Economic Empowerment. It is not about opening up the business world (dominated for so long by white interests) to all those who have been denied this opportunity under apartheid.

It is, instead, no more than a defence of a small group of well-connected tenderpreneurs who have the money and the connections to bribe politicians in order to get tenders. What about all the other hard-working men (and women) who wish to obtain tenders from the state but do not have the money and the connections to pay the bribes that Miyeni seems to support?

Well, for Miyeni they and their kind can go to hell, it seems, whether they are black or not.

On the political brilliance of Julius Malema

Jul 26th, 2011
by Pierre De Vos.
157 comments

It has become seemingly impossible to have any kind of logical and level-headed discussion about Julius Malema. Because he is a master politician (although obviously not intellectually gifted, principled or – heaven knows – humble or poor), he has managed to create a political persona that inoculates him against criticism, attack and possible exposure as a charlatan. By launching his populist campaign for the nationalisation of the mines and the expropriation of white people’s property without compensation, Malema has cleverly bought some political insurance against criticism and/or possible exposure as a corrupt, dishonest and hypocritical champagne socialist.

Given our apartheid history, the continued gap between the (mostly, but not exclusively, white) upper middle classes and the (mostly, but not exclusively, black) poor, the seeming inability of the post-1994 government to create a more just and safe society, and the effects of economic and political choices (especially choices regarding education and unemployment) which have made it very difficult if not impossible for most of the poorest 50% of young South Africans ever to climb out of poverty in an honest and legal way, any politician reckless or clever enough to use brutal, racialised and militant language to describe the unjust nature of our society was always going to become popular with a vocal and political active group within the ANC. This group might not represent the majority of South Africans, but it is a vocal, active and influential group that will help to protect Malema against his enemies within and outside the ANC.

The fact that Malema has also proposed “solutions” that he claims will address the continued injustice in our society, further assists him in creating the persona which will – at least for some very vocal and powerful people – continue to trump any other considerations about his private life and the sources of his wealth. At the same time he has made many enemies amongst white people who hate and fear him for singing songs about Boers and for generally “not knowing his place as a black man”.

And having this group as enemies is a political plus for a person like Malema. Even people who would otherwise be level-headed would be hard-pressed to be seen to be on the same side as Afriforum for fear of being branded as coconuts or racists. So, don’t count Mr Malema out yet. He is down but not out because he can rely on those who will support him no matter what because their support would be seen as defending Malema AGAINST the white racists fearful of the creation of a more just society.

Who cares, such people might say, whether Malema took bribes to facilitate tenders? Who cares if tenders were inflated, houses were not built, services were not delivered, all because some businessmen “donated” a few million Rand here and there to Malema? If he did take the money, good for him! He is saying what other politicians are all too scared, intimidated or stupid to say. And his solutions – while they may well be economically disastrous – feel emotionally just and correct.

Why think with your head when the daily grind of your existence – the struggle to feed your family, to pay school fees for a third rate education of your children – continues to humiliate you? When your dignity – supposedly guaranteed by the South African Constitution – is infringed on a daily basis because of your economic depravation and the ongoing racism and racial discrimination that confronts you at work, in shops and on the streets? Why not indulge in a bit of a revenge fantasy by cheering on Julius Malema’s every outrageous and supposedly radical statement?

When you see the white madams in their 4x4s – their dyed platinum hair flowing over their shoulders, their manicured nails clutching the latest cellphone models, their Gucci shoes shining – when you see them dropping off their blond children at expensive private schools where they will be educated for high-paying jobs in Sydney and London, you might cheer on Julius Malema because if his proposals were accepted, these madams would suffer at least a little bit (“I mean, only one trip a year to London, doll! What is the world coming to, I tell you!”) and their children would not get the education that would allow them to continue their millionaire lifestyles.

Now anybody who wishes to engage in an honest and sincere manner with Mr Malema’s actions, words or allegations levelled against him,  who wishes to weigh the veracity of the allegations regarding the alleged corrupt activities of Julius Malema in an even-handed and sober manner to determine whether these allegations are all part of a smear campaign or whether Malema is indeed deeply corrupt, have a hard time being heard in certain circles because Julius has managed to change the terms of the conversation. While the media and the chattering-class pundits and commentators like myself, scream blue murder about the allegations of corruptions levelled against Malema, others might well ignore our high-minded appeals to facts and principles.

Facts and evidence and criminality, these things are all irrelevant – except for those of us in the chattering classes, people who read or write Blogs and earn a decent living and read books about Kant and Foucault and eat out at nice Restaurants and stay in leafy suburbs whose streets are still being cleaned by the same mothers and fathers who did this work during apartheid. What is relevant is the faux radical utterances of Malema because although you cannot eat these utterances they do make you feel better.

This has been Mr Malema’s brilliance: with his “Kill the Boer” song and his “Bloody agent!” rant and his alleged anti-white utterances Malema has managed to turn every question about his honesty, his possible criminality, his hypocrisy, into a question about the injustices still suffered by a majority of South Africans. Those of us who question Malema’s actions are easily going to be dismissed, by some at least, who are going to say that we are using facts and principles to protect our own interests.

That is why it is so difficult to focus on the principles involved in this case without falling back on emotional platitudes and invective, invective and platitudes which will differ depending on whether one is a great fan of Mr Malema or whether one fears and loathe him. Either he is innocent no matter what the facts might say (if you are emotionally drawn to Malema’s quick-fix solutions for our problems), or (if you cheered on Afriforum when it brought the hate speech complaint against him), Malema will be guilty no matter what facts might or might not have been proven.

As someone who has been lambasted by more conservative elements in our society for consistently argueing that the hate speech accusations levelled at Malema was distracting us from more serious questions and that it was politically disastrous to have brought this hate speech complaint against him because it merely help to inoculate him against criticism, what I see now is the chickens of Afriforum coming home to roost.

It might be that Malema is innocent, and that he is not guilty of corruption. Maybe as we speak he is meeting with lawyers to instruct them to sue City Press for alleging that he was deeply corrupt. But maybe he is corrupt as alleged, in which case those of us in the chattering classes who worry about the corruption that has seeped into our politics and the effect of this on service delivery and the quality of our democracy are going to start despising him even more while his hard-core supporters will stand outside courtrooms and sing that they will kill and die for Malema.

That, I say again, is Malema’s brilliance. No matter what happens, for some it will never be about weighing up the facts and coming to a sober decision on whether Malema is a corrupt hypocrite or a real champion of the poor. Those who will assume that he is guilty, no matter what the facts, are politically irrelevant for Malema. But if he is corrupt, he would need an army of supporters for whom the facts matters not one bit. His campaign of the past year – aided by Afriforum and racist elements in our society – has managed to produce such an army.

Malema, our own Paris Hilton: “Rebel with a trust fund”?

Jul 24th, 2011
by Pierre De Vos.
83 comments

Is Julius Malema guilty of contravening the provisions of the Prevention and Combatting of Corrupt Activities Act (PCCAA) 12 of 2004? If he is and he is convicted in terms of this Act, he would face a minimum 15 years in jail. Unless he becomes “terminally ill” like Schabir Shaik he would then have to spend many years in jail without access to fancy cars and the millionaires’ lifestyle he is living now. Moreover, his assets could then be confiscated by the Asset Forfeiture Unit if the appropriate application is made to court. So, these allegations levelled by City Press are very serious.

City Press reported this morning that Malema has a secret trust fund – that he is “a rebel with a trust fun”, so to speak – which he uses to finance his lavish lifestyle and his political ambitions. As long as he pays the appropriate taxes in terms of money received by this fund, there is nothing illegal with having a trust fund. Hell, Paris Hilton would not be able to survive without one. But City Press also reported that the money from the trust fund comes from deposits made by businessmen who get tenders from the Limpopo Province.

If this is true, well then Malema must be in very serious legal trouble. The newspaper reports about this as follows:

The other source, a seasoned businessman who moves in Malema’s circle of friends and associates, told City Press he deposited R200 000 into the trust’s bank account after Malema facilitated a government tender for his benefit. According to him, there are at least 20 other business people who do the same. He said Malema sent him the number of the bank account via SMS. After depositing the money, Malema allegedly thanked him – also via an SMS.

The PCCAA is an excellent piece of legislation which is sadly not often used because of the lack of the political will on the part of the Police to investigate corruption and bring corrupt individuals in both the public and the private sector to book. It criminalises almost all imaginable forms of corruption in rather broad terms, making it – in theory at least – quite easy to secure a successful prosecution in a corruption case.

Because those who are corrupt are also often very wealthy – allowing them to buy political influence or even direct protection from the police – or because they are politically connected because they happen to be leaders of the governing party, people are often only investigated for corruption if they had fallen foul of one or other factions of the security services or the governing party. That is why Brett Kebble financed the ANC Youth League and the ANC proper and why that Savoi guy allegedly made more than a R1 million donation to the ANC. (In both cases something obviously went wrong and the insurance money did not buy immunity from criminal investigation, which suggests that there is still hope for us to tackle the scourge of corruption in this country.)

Section 13 of the Act would be of particular relevance regarding the allegations levelled against Mr Malema. This section states that:

(a) Any person who, directly indirectly,accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, as—

(a) an inducement to, personally or by influencing any other person so to act,

(i) award a tender, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, to a particular person; or

(ii)  upon an invitation to tender for such contract, make a tender for that contract which has as its aim to cause the tenderee to accept a particular tender; or

(iii) withdraw a tender made by him or her for such contract; or

(b) a reward for acting as contemplated in paragraph (a) (i) (ii) or (iii),

is guilty of the offence of corrupt activities relating to procuring and withdrawal of tenders.

As is clear from this section, a person can be found guilty even if that person is not directly involved in the awarding of tenders but receives money with the understanding that he or she will influence the awarding of the tender. One does not have to show that the tender was indeed awarded to someone who paid the bribe or even that the person who received the money had the power to influence the awarding of the tender.

All one has to show is that money changed hands and that the person who received the money – in this case, if the allegations are true, this would be Malema – received it with the understanding that he would influence the tender in your favour. Even if there was no intention actually to influence the tender but one had given the impression to the businessman that one would influence it, one would be guilty of corruption.

That is why being perceived to be powerful and influential is so important for the person who receives corrupt bribes with the understanding that he would swing the tender. He would not even have to wing the tender to get the money – as long as those businessmen who pay believed that he had the power to swing the tender, the money would continue to flow into the trust fund,

Section 24 of the Act also makes clear that even if the state cannot prove that there was a direct causal link between the money given and the tender in question, the crime of corruption may yet be proven by showing that there was any abuse of a position of authority.

City Press might not have known this, but its story alleges that Julius Malema is guilty of corruption and that facts exist which, if proven in court, would require a judge to convict him and to sentence him to a minimum of 15 years in prison. To make such allegations would usually constitute defamation. Unless the allegations are true and it is in the public interest to publish them, the newspaper making such allegations could therefore be successfully sued for defamation.

Now, these allegations completely destroy Julius Malema’s credibility. He can restore the credibility by suing City Press for defamation. If he does not, we will know that he is corrupt. If he threatens to sue (which I suspect he would) but never follows through with the threat (which I suspect will happen), we will also know that he is corrupt.

If he sues and it transpires that the facts alleged by City Press are more or less true, well, his reputation would also be destroyed for ever. Many politicians threaten to sue newspapers but never do because they know that if they lose – which will often happen if the allegations are actually substantially true – they would have made things even worse for themselves. That is why watching Malema’s next move will be interesting: if he threatens to sue without suing it would be like an admission of guilt.

The upshot of this is that unless Julius Malema immediately sues City Press, he would – at least in the yes of any reasonable person – have not one single bit of credibility left. All the bluster in the world will not change this fact. All the hot air about a conspiracy against him and about racism will not change this fact. Either he sues City Press or the rest of us can start referring to him as “the corrupt Julius Malema”.

Julius Malema: the bourgeois, capitalist, libertarian?

Jul 21st, 2011
by Pierre De Vos.
97 comments

Who would have suspected that Julius Malema subscribed to a bourgeois, libertarian and capitalist notion of accountability and privacy? Yesterday, in response to questions about how he could afford his lavish lifestyle on an ANC salary, he told journalist: “Where I get money to build such a mansion, within a short space of time, is none of your business.” This suggests that Malema endorses a view – much loved by traditional old-style economic libertarians – that a bright-line boundary should be drawn between the public and the private spheres of a person’s life – unless that person is an elected representative of the people.

According to this view, much in vogue among Tea Party activists and other fringe right-wing groups in the USA, the default position is that the state and other powerful players should keep their noses out of one’s private life. How one made and spent one’s money, how one treated one’s wife or partner, how one did business and how one’s public utterances squared up with one’s private actions - had little to do with the state or with the public at large. In fact, some even argue that it was authoritarian to allow any intrusion into this sanctified private sphere.

The state should keep its dirty nose out of one’s private affairs unless it is clear that one has broken the law. Moreoever, the law itself should interfere with one’s private life choices as little as possible because – so the argument goes – by leaving one alone the state will allow one to unleash one’s full potential to exploit one’s talents (and to exploit others who are less talented than oneself). This hands-off approach is also necessary to prevent the state from infringing on one’s rights. States are dangerous and must be feared and for that reason the law should provide radical protection for one’s privacy and personal choices.

In such a world, the public and the media have little right to ask questions about how one lived one’s life and how one made one’s money because capitalism requires capitalists to get on with the business of generating wealth by giving them a free hand to deal with their businesses as they saw fit. As long as one of the limited number of laws necessary to ensure a free hand for capitalism to thrive, has not been broken it is, indeed, nobody’s business how one made one’s money. Get lost.

This is the kind of attitude that produced a character like Brett Kebble and, before him, a long line of cowboy capitalists, starting perhaps with Cecil John Rhodes. Who cares whether Kebble bankrolled the ANC Youth League? Who cares that he spent large amounts of money to befriend the Police Commissioner? Who cares that he had been rather creative about the manner in which he shifted funds and shares from one place to another – it’s all in a days business and the state and the media should not destroy the wealth-creators by asking difficult questions.

The argument put forward by Julius Malema, namely that a politician like him – who is not currently serving in any executive, legislative or other government position – is perfectly entitled to live a life that seems to be far more lavish than the salary earned by him and that we have no right to ask how this came to pass, therefore does not sit well with his claims of being a radical anti-capitalist.

A politician like Malema can, of course, try to claim that he is a private citizen who is not accountable to the electorate in the same manner as our elected representatives in the legislature and the executive because his salary is not paid for by taxpayers. If one endorses the radical capitalist view that draws a bright-line boundary between public service and private citizenship and denies the fact that money, political power and influence impacts in any way on politics and governance issues, one could argue that there is no reason why such a politician should be obliged to inform the public where his or her money comes from.

What next, such a person would protest: Will we demand that every university Professor with a Blog explain why he or she lives in a two-bedroomed flat in Sea Point or Bantry Bay? Surely, so this argument goes, Malema is in a similar position as the head of a large corporation, whose sources of wealth should be of little concern to the electorate. Who cares whether Harry Oppenheimer stole his money or not? Just as we should not be concerned about how Brett Kebble had suddenly become seemingly filthy rich, we similarly should not worry our pretty little heads about the unexplained wealth of a politician like Julius Malema unless that politician has been elected to a position in the legislature or executive and is paid a salary by taxpayers.

Personally I do not endorse this view.

One cannot draw a bright-line boundary between the public and the private aspects of one’s life – especially not if one is a public figure with money, power and political influence. The claim that this is possible is no more than nonsense upon stilts. While we are all entitled to some form of privacy and while we all have a right to be protected from undue invasion of the most private aspects of our lives, public figures should not be able to hide behind this right to avoid scrutiny of their affairs when this impact on the public discourse and on the way we are governed.

A contextual approach must be applied to determine where the boundary between the right to privacy and the duty to account should be drawn. We have to consider several factors and weigh these up against each other. One should take account of the position that a person serves in (is he a leader of the ANC Youth League; a newspaper editor; an academic; a business mogul who bankrolls the governing party), his or her relative power and influence (both on the public discourse and potentially on decision makers who dish out tenders or other positions or benefits), the sphere in which he or she has influence, and the potential impact of that person’s views and actions on the governance of the country or on the running of the economy. We must then ask how closely these aspects are connected to the matters that the person wishes to keep private.

The closer the connection between these two spheres, the more difficult it should be to argue that one has a right to have this aspect of one’s privacy protected. The more private the action for which protection is claimed, the stronger the argument for privacy should be.

For example, if an ANC Youth League leader like Malema claims that it is none of our business whether he had had sex with a male friend, he would probably have a very strong case. There would be a very distant relationship between his sexual orientation and his private sexual activities on the one hand, and his public persona and the power he wields on the other. If we assume that he does not wield this power and has not become wealthy and influential because of his sexual relationships and given the fact that he does not espouse flagrantly homophobic attitudes in public to gain support, this should remain a private matter if the person wishes it to remain private.

But if an allegation was made that the person under discussion had a sexual relationship with Brett Kebble, who had bankrolled that person’s political campaign to become a leader of the ANC Youth League in order to buy influence from the Youth League leader to try and prevent his own arrest, the situation would of course change radically. The intimately private sphere would have become so closely connected with the political – public – sphere, that it would be in the public interest to expose this link.

In this context, how Malema made his money and how he can afford his lifestyle is clearly in the public interest. Given the fact that he is perceived – rightly or wrongly – to have enormous political influence, given further that credible allegations have been made about his involvement in companies who received tenders from the government, and given allegations made by Stephen Friedman and others that he is being bankrolled by others to fight their political battles, his claim that it is none of our business where he gets his money from is utterly ludicrous.

Even the most rabid free-market capitalist would have difficulty to convince us that there is no link between the origins of the private wealth of an influential politician (whether that politician is inside or outside government) on the one hand and his political position and the influence, power and access it provides over government officials who decides on tenders on the other. Claiming that there is indeed no such link just makes one sound like a right-wing American nutcase.

Why did this happen?

Jul 15th, 2011
by Pierre De Vos.
122 comments

The report by the Public Protector into the attempted leasing of a building by the Police in Durban from Mr Roux Shabangu’s company (the guy who first claimed that he was good friends with President Jacob Zuma before inexplicably claiming that he was not good friends with Zuma), leaves one big question unanswered.

That question is: why? 

Why would the Police, who only a few months earlier had indicated that they wanted to have a new building built to house the KwaZulu/Natal headquarters of the Police, now rush to conclude an unlawful lease with Mr Shabangu’s company at tripple the market value? Why would the Police Management ignore the warning by SAPS KZN Head: Property Management, Colonel AT Ngema, not to enage directly with Mr Shabangu? Why would they ignore Ngema’s second warning, which reads in part: 

I would like to advise the management to refrain from engaging with the prospective landlords i.e. 477 Smith Street as this will jeopardise the tender processes, create false hope or give unfair advantage to them. I would like to end by committing my support to my management with whatever decisions they take but also ensuring that they are protected from the bad publicity and unnecessary media attention which might be raised by matters like this.

Why – according to documentation reproduced in the Public Protector’s report - did the National Police Commissioner first instruct his underlings not to renew any leases without his approval and then indicate that he had identified the Roux Shabangu Building for leasing? Why did the Police Commissioner deny this – despite the documentary and other evidence which confirmed this fact?

Why was Commissioner Cele so upset when an official in the Public Works Department correctly pointed out that the Police were acting in an unlawful manner by directly negotiating with Mr Shabangu and why was she then removed from her post? Why does the Police Commissioner now maintain that he knew almost nothing about the leases and that he signed documents that were placed before him on advice of others? Is he merely incompetent and reckless about the spending of public funds or is he not being entirely truthful?

Why was Minister Geoff Doidge removed from his position by President Jacob Zuma after he and the Director General launched an investigation into procurement activities of the Department and after he had instructed that the two leases relating to Mr Shabangu be suspended?  Why was the new Minister Gwen Mahlangu-Nkabinde so anxious that the leases proceed?

She even obtained a two paragraph “opinion” from the State Law Advisor to contradict the real opinions of several senior advocates in order to ensure that the leases are concluded. Was the reason for this that, as Mr Shabangu reportedly claimed, she was like Mr Shabangu’s “elder sister”? Is it true that Mr Shabangu stormed into the Director General’s Office and threatened him and if so, why did the Minister not do anything about this?

Why did Minister Mahlangu-Nkabinde not co-operate fully with the Public Protector and why did she refuse to answer some of the questions pertaining to these leases put to her by the Public Protector? What did she have to hide and was she hiding something on someone else’s behalf? Why did the Minister meet with Mr Shabangu on several occassions and why did they have frequent contact on the phone? Given the fact that her predecessor was fired, was she not afraid that President Zuma would fire her and if not, why would she believe that the President would protect her?

The Public Protector’s report found that the Police Commissioner and the Minister had acted unlawfully and were guilty of maladministration. But because the “why” question had not been answered, it found that it could not say for certain that any criminal activity took place. Once we know why this all happened, we would also know whether anyone should be prosecuted for corruption. 

The behaviour of the various role players is very difficult to explain in the absence of corruption of some sort. No one has been able to explain why the rules were broken so flagrantly and with such vehemence. If there were no inappropriate relationship between Mr Shabangu and some role players (the Commissioner, the Minister, the President or the ANC), the whole saga makes no sense whatsoever.

Such an inappropriate relationship could have come about because of payment of money, the provision of other favours or because of another kind of inappropriate personal relationship between any number of the parties. At this point we therefore do not know whether Mr Shabangu corrupted anyone and if he did, who was corrupted. Usually, the Police would be able to follow up on such serious questions by investigating the links between the parties and where prima facie evidence of corruption is procured by getting search warrants to search the relevant premises associated with the relevant role players (Mr Shabangu, Mr Cele, Ms Mahlangu-Nkabinde, Mr Zuma, the ANC) in order to determine whether money had changed hands.

But as the Police themselves are implicated in this scandal, this will not happen. As the Constitutional Court found in the Glennister case, the Hawks, who reports directly to the Police Commissioner, is not independent enough to conduct such an investigation. In the absence of the Scorpions or a similarly independent body, no proper criminal investigation will be conducted. The situation which has now arisen therefore vindicates the majority judgment in the Glennister case and underlines, again, the urgent need for the creation of a truly independent corruption fighting unit.

But when such a unit is finally set up, it will probably be too late to investigate the allegations of corruption linked to the Police leasing scandal. And who knows how many billions of Rand would have been lost to other forms of corruption by the time this happens? 

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