Populism denies complexity, denies constraint, and denies risk. It distracts attention from the real issues that must be addressed, and, as evident in the current context, closes down space for democratic dialogue and conversation… Hence its appeal to desperate politicians and the massive traction it enjoys among electorates. We need the wisdom and the courage to resist the bullshit, especially bullshit that divides us as South Africans.
The life and death struggle between President Jacob Zuma’s Gupta faction and the faction who (for noble or not so noble reasons) oppose state capture by the Guptas and their friends, have raised many legal questions worth considering. Let me get right to the task at hand and try to answer some of these questions.
Question 1: Is the President entitled to delegate to the Guptas the power to appoint Ministers or anyone else he is authorised to appoint in terms of the Constitution or other legislation?
No, he is not permitted to do so. The Constitutional Court confirmed in President of the Republic of South Africa and Others v SARFU and Others that the President is not entitled “to abdicate the powers conferred upon him by the Constitution” by delegating that decision to a Minister, let alone private individuals who are not members of the Cabinet.
SARFU also made clear that the President is not permitted to act “under dictation” by merely following the instructions of another without applying his own mind to the matter at hand. Neither is the President allowed to “pass the buck” by handing the decision to somebody else.
If the President fails to make the decision about who to appoint himself (say by allowing the Guptas to decide who to appoint), that decision is unlawful and invalid. If the allegations are true that the President delegated decisions about the appointment of Ministers (and possibly the Commissioner of SARS and the National Director of Public Prosecutions) to the Guptas (and possibly to his son, Duduzane), these appointments are all null and void.
Question 2: Apart from technical legal considerations, why would the involvement of the Guptas in the appointment of Ministers, the SARS Commissioner, the head of the Hawks and others be bad for democracy?
When the President exercises his power to appoint members of his or her cabinet and other functionaries, he or she acts as the elected representative of the people who voted for the majority party in Parliament. Although the President is not directly elected by voters, he or she is indirectly elected via the National Assembly and is thus politically accountable to the legislature and to the voters.
Unlike the President, the Guptas (or Duduzane Zuma) have not been elected by the voters and are not accountable to them. If they have a decisive say in the appointment of Ministers and other functionaries they are usurping powers granted by the Constitution to the President. This would constitute a direct attack on democracy as it would remove the decision from the democratically accountable person and place it in the hand of private individuals pursuing their own (and not the country’s) interests..
Question 3: Do you commit a criminal offence when you offer a Ministerial post to an MP in exchange for favours?
Yes, you commit the criminal offence of corruption and is liable to be sentenced to a minimum prison sentence of 15 years if you convicted of this crime.
For example, section 3 of The Prevention and Combatting of Corrupt Activities Act 12 of 2004 states that any person who directly or indirectly “gives or agrees or offers to give to any other person any gratification” (such as a cabinet post), with a view to induce that other person to act in a way that amounts to illegal, dishonest unauthorised, incomplete, or biased manner; or that amounts to the abuse of a position of authority, a breach of trust; or the violation of a legal duty; or the violation of a legal duty; or that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of an offence.
The Act does not require the person offered the benefit to have accepted it. All it requires is that the offer was made with the purpose of persuading the person offered the ministerial position to act in any of the ways indicated in section 3 of the Act. Neither does it require the person offered the benefit to have done what he or she was requested to do. The offer alone constitutes a criminal offence. This means even where an MP was offered a ministerial post and declined the offer, the persons offering the post are guilty of corruption.
If the allegations about the offering of Ministerial posts in exchange for favours are true, not only the Guptas (and perhaps President Zuma’s son Duduzane) – who directly made the offer – would be guilty of a crime.
The President would also be guilty as he would indirectly have caused the offer to be made. It would not be a defence that he was not in the room when the offer was made. It would be a defence that he was unaware that the offer was being made (but this defence would be difficult to sustain if – as Vytjie Mentor alleged – he was in the next room when the offer was made).
Question 4: The Guptas have denied all the allegations against them and President Zuma has claimed he has no recollection of some of these events. Does this mean it will not be possible to investigate and prosecute the suspects for corruption?
No, the mere fact that a criminal suspect denies that the crime was committed or claims not to recall the alleged commissioning of the criminal act, does not mean the crime cannot be investigated and prosecuted. Criminals seldom if ever admit to their guilt. They often deny the alleged facts outright or feign memory loss.
In a case where witnesses come forward and testify about the commissioning of an alleged crime of which they have personal knowledge (as Vytjie Mentor has done), the investigators will have to test the credibility of this evidence. This can be done by gathering circumstantial evidence from other sources, including from other witnesses who may corroborate some parts of the testimony.
The credibility of the suspects who deny the allegations must also be weighed up against the credibility of the witnesses testifying about the commissioning of the alleged crime. The credibility of witnesses are usually best tested under cross-examination. It is also under cross-examination that dishonest witnesses usually contradict themselves (lying is hard work) or develop a faulty memory and fail to recall individuals and events which they would be assumed to be familiar with.
Question 5: Will the Guptas and the President be investigated for corruption?
It is difficult to imagine that the Hawks, under its current leadership, will ever launch an investigation into any of the alleged criminal offences committed by the Guptas, Duduzane Zuma or President Jacob Zuma. The Hawks is headed by Major General Berning Ntlemeza, an apartheid era police officer who replaced the former MK soldier Anwa Dramat and he is not known for his honesty.
During a bail hearing a High Court judge said that General Ntlemeza was “biased and dishonest” and “lacked integrity and honour” as Ntlemeza had made false statements under oath. The court also remarked that Ntlemeza has a “contemptuous attitude towards the rule of law and the principle of legality and transparency”. General Ntlemeza sought to appeal the judgment to the Supreme Court of Appeal (SCA) but the SCA dismissed this application for leave to appeal.
The manner in which General Ntlemeza has used his position as head of the Hawks to intimidate the Minister of Finance (perceived to be in the faction that opposes state capture by the Guptas) further suggests that it would be over-optimistic to expect that the General would act with integrity or that he will apply the law even-handedly.
Question 6: But was the Minister of Finance not legally required to answer the questions sent to him by the Hawks?
As the Daily Maverick reported, the official paper trail leading all the way back to former Finance Minister Trevor Manuel (who appointed Gordhan), former President Thabo Mbeki as well as several NIA and SSA officials shows the special investigative unit was legally constituted and officially sanctioned.
Even if this was not the case, the establishment of the SARS Unit could not possibly have constituted a criminal offence warranting investigation. It is therefore unclear why the Hawks is investigating actions that do not constitute criminal offences.
But if we assume for the moment that the Hawks are investigating actual (but as yet unnamed) crimes, it does not necessarily mean that Gordhan is legally required to answer the 27 questions sent to him by the Hawks.
Section 35(1)(a) of the Constitution states that everyone who is arrested for allegedly committing an offence has the right to remain silent. In S v Orrie the Cape High Court held that this right also extends to individuals before they are arrested. The court explained that:
An interpretation of the relevant provisions of section 35 which extends them to suspects is, to my mind, in keeping with a purposive approach which has regard to the interests which the rights were intended to protect. Moreover it accords with the views expressed by the Constitutional Court in S v Zuma and others that the ‘right to a fair trial’ embraces a concept of substantive fairness which is not to be equated with what might have passed muster in our criminal courts before the Constitution came into force. It was held further in Zuma that all courts hearing criminal matters must give content to the notion of ‘basic fairness and justice.’ This approach is endorsed by the authors of South African Constitutional Law: The Bill of Rights. They observe that unless the Constitution’s pre-trial rights are extended to suspects as well, investigating authorities could simply leave potentially accused persons in the category of ‘suspect’, thus enabling themselves to collect evidential material from the ‘unwary, ‘unsilent’, unrepresentative and unwarned suspect’.
Question 7: Could Minister Gordhan not be forced to answer questions by invoking section 205 of the Criminal Procedure Act?
Section 205 of the Criminal Procedure Act allows certain judges or magistrates – on request from the National Director of Public Prosecutions – to summons anyone to appear before them to answer questions about a criminal investigation. The head of the Hawks does not have this power and cannot make the request to a magistrate or judge. The summons can only be issued against a person who “is likely to give material or relevant information as to any alleged offence”.
A person may refuse to answer the questions unless the judge or magistrate is of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law and order. Moreover if the person has a “just excuse” for not answering the questions, he or she may also refuse to answer them.
As the Constitutional Court has made clear in Nel v Le Roux, a just excuse will include the excuse that the examinee’s rights under the Bill of Rights have been infringed. In fact, it would be as if the questions were not properly put to the person.
This means that the Minister of Finance is not legally required to answer any of the 27 questions posed to him by the Hawks. He would have to appear before a judge if summoned to do so, but the judge – and not the dishonest head of the Hawks – will then decide whether it was necessary to answer the questions.
Even then, if the answering of any question would infringe on any of the rights of the Minister contained in section 35 of the Constitution, the Minister would be under no obligation to answer. As section 35 was held by some High courts to apply to individuals who have not been arrested this means the Minister would be under no obligation to answer any questions that may amount to an admission that could be used in evidence against him at a later stage.
This means that the Hawks is not authorised to compel the Minister to answer any of the 27 questions posed to him. Of course, the Minister may – either because he has nothing to hide or because it would be politically appropriate to do so – answer any or all of the questions posed to him. But it remains within his discretion.
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