The news that President Jacob Zuma has failed to declare his financial interests and the financial interests of his spouses, permanent companions and dependent children as required by the law, is shocking and surprising. Given the fact that the President got into terrible legal trouble after receiving more than R4 million from a fraudster and crook and then doing favours for that fraudster and crook, one would have thought that the President would be extra diligent in complying with the law to ensure that further perceptions of dishonesty and corruption do not take hold.
The Presidency claims that the President has failed to make these declarations – as the law requires him to do within 60 days after taking office – because ”there was a difference of opinion in his office on whether he was required to do so”.
Oh please! Tell me another one. I for one really do not believe this statement issued by the presidency. It is about as believable as statements by George Bush that there were weapons of mass destruction in Iraq or statements by Bill Clinto that “I did not have sex with that woman.” If there really is a difference of opinion in the President’s office on whether the law requires him to declare these financial interests, then god help us all because then our President has people working for him that are spectacularly stupid or spectacularly dishonest – or both.
There cannot possibly be any confusion about whether the President and his family should declare their financial interests. Here is why.
Section 2 of the Executive Members Act requires the President – after consulting Parliament – to “publish a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government and with which Cabinet members, Deputy Ministers and MECs must comply in performing their official responsibilities”. The Act, in its definition section, makes doubly sure that this Code would also bind the President because it defines “cabinet” to mean “the Cabinet referred to in section 91(1) of the Constitution” and then, just in case anybody is too thick to get it, the Act defines “cabinet member” as including “the President.”
Section 91(1) of the Constitution - in case anyone wondered – further states that the cabinet “consists of the President… Deputy President and cabinet Ministers.” This is about as clear as any law could possibly be.
The Code itself – which gives effect to this Act and must therefore comply with that Act - states in section 5 that every member (defined in the Code to include any cabinet member and thus, according to the Constitution as well as the Act, to include the President)” must disclose to the Secretary particulars of all his or her own financial interests as well as the financial interests of spouses, permanent companions or dependent children”. Note the word “must”, as in: “One must not kill anyone”. Pretty clear really – unless one cannot read or write or unless one is a serious crook. The statement by the presidency that the Act is unclear is therefore utter nonsense and laughable.
Why would the President be flouting the Law like this? Does he have something to hide and if so what? Well, section 6 of the Code states that like all other Cabinet members, the President must disclose his own financial interests and those of his spouses, permanent companions and dependent children including: shares and other financial interests in companies and other corporate entities; sponsorships and their sources and “other assistance” and its sources; ”gifts and hospitality” and its sources; “other benefits” and their sources; foreign travel paid by a sponsor and the description of the sponsor; the land and property owned; and the pension owned, its sources and value.
This means if the President stopped flouting the law and started to comply with the Code, he would have to declare a wide range of benefits received by himself, his wives, his known children and, perhaps, even his various fiancées as well as the names of those who have provided the benefits. Although the details of benefits accruing to his spouses, permanent companions and dependent children would be listed in the secret part of the register, the Public Protector would have access to this information if any complaint is received about a conflict of interest (otherwise called a bribe).
If anyone had paid for the school fees of one of Zuma’s children, it would have to be declared. If rent on luxury houses used by Zuma, any of his wives, his girlfriends or his dependent children were paid by others it would have to be declared. If Schabir Shaik, say, had sponsored a private holiday for Zuma with one of his wives or girlfriends, it would have to be declared.
The fact that his private attorney, Michael Hulley, is currently handling the matter suggests that there is something very fishy going on here. Remember, Hulley was the lawyer who used illegally obtained recordings to provide the smokescreen for the dropping of charges against Zuma. Hulley was not allowed to be in possession of those recordings and probably committed a crime by taking possession of the recordings. He thus seems singularly unsuited to assist the President to comply with the law as required. Given his track record, he seems like the kind of person one calls in when one wants to evade or break the law.
Why not employ lawyers from the presidency to deal with the matter? Why employ the guy who managed to get you off the corruption charges? Outwardly, this looks very bad. Why get Hulley involved if the information required by the Code will not expose the President to further allegations of bribery and corruption? Or is Hulley there to help the President to flout the law by ensuring that the President does not reveal anything that could get him in trouble?
Any member of the National Assembly can lay a complaint with the Public Protector to investigate a breach of the Code. One would hope someone would lay such a complaint as the President is clearly in breach of the Code. One would also hope that when the President is finally forced to stop his flagrant flouting of the law, that journalists would go over all the details of his dealings and will compare the names of all those who have acted as benefactors to the President (assuming Hulley has not unlawfully hidden some of the information) with the names of business people who have received tenders from the state.
Something smells rotten about this duckling and diving by the President. Anyone with nothing to hide would surely have complied with the law as the President clearly is required to do. What is going on? What does the President have to hide? More undisclosed children?
PS: I see Presidential spokesperson, Vincent Magwenya, says if the president was hiding something he would not have given such an open and forthright response. In other words, if the President wanted to hide something he would have lied about breaking the law. But he has admitted to breaking the law instead of lying about it, so its ok then. This is so breathtaking in its arrogance, that I first thought it was a quote from the Hayibo website. Of course, if the President did not want to hide anything he would have complied with the law, but he IS the President so obviously he wrongly thinks the law does not apply to him.
“then god help us all because then our President has people working for him that are spectacularly stupid or spectacularly dishonest – or both”
That he has!
(1) I do not believe that Mr Hulley’s involvement in drawing up the information to submit is wrong, in a formal sense. He is Mr Zuma’s personal attorney, and is already acquainted with his affairs. It is not unreasonable, however, to infer that there is a clear possibility that Mr Hulley may conspire with Mr Zuma to conceal informationt hat might be deemed to be embarrassing or damaging,
(2) It is, however, also reported in the original article that, “Magwenya said the presidency legal team was providing the opinion. It is headed by former Department of Justice official advocate Bonisiwe Makhene, but includes Zuma’s attorney, Michael Hulley”. If there is any formal (or informal) involvement of Mr Zuma’s private attorney in a function of the Presidency, then I suggested that a serious conflict of interest has arisen. Mr Hulley acts in the personal interest of Mr Zuma, while the Presidency is required to act according to the Constitution to uphold theintegrity of the office of President.
(3) What are the possible sanctions for failing to comply with the Code (not submitting within 60 days)? Who enforces this? Can a decision of the Committee, person or body involved be subject to legal review? Has the President committed a crime by not submitting his interests?
(4) Could the President or any of his officials be required to make any statements on oath in regard to this matter, and if they are found to be telling any untruth, could they be guilty of perjury?
(5) When did Mr Zuma instruct his attorney to commence the compilation of his submission? (Was it after his office was contacted by the Independent?)
(6) What is the procedure for the Presidency to obtain a legal opinion on any matter affecting the President? When did this process commence, legally?
(7) What information relating to any of the substance or the procedures involved in this matter may be obtained in terms of PAIA, or via other mechanisms such as parliamentary questions?
The President ”must disclose to the Secretary particulars of all his or her own financial interests as well as the financial interests of spouses, permanent companions or dependent children”. ”.
When Parliament made this rule, they never realised that one day we would have a President with so many spouses, permanent companions and dependent children. Can 60 days (or 60 months) be enough to get together the particulars of finansial interests of so many people?
“Why would the President be flouting the Law like this?”
Because he can?
Mike Atkins’ points (3) and (4) are particularly pertinent. I suspect that Zuma’s lawyers are less interested in the actual applicability of the Act (which is crystal clear, based on what Pierre writes) than in the sharpness of its teeth.
Prof,
One question: why do you include the words “shocking and surprising” in almost all your posts regarding the President or his ministers?
By now it is clear that nothing they do any more is either shocking or surprising. They are ANC members after all, it seems to be corrupt and inept is expected.
How’s that?! The victim of a ‘middle-finger’ gives the law a ‘middle-finger’.
Crazy!!! Banana Republic stuff!!! If the President did not comply with a legal requirement because ”there was a difference of opinion in his office on whether he was required to do so”, would that not have required him to obtain legal advice on the matter, long before the expiry of the 60 days? Now, this assumes that he indeed did not have anything to hide. No no no Msholozi, this cannot be right, even by the ANC’s standards of “right or wrong”!!!! We are talking here about someone not new to the presidency, someone that has, on numerous occasions acted in the position.
I suspect that there might be a genuine ” differences of opinion in the Presidency ” on more fundamental legal issues as opposed to what the Good Professor is making out to be a straight forward thing. There could have been various serious legal issues. I saw a t-shirt last Saturday written in the front ” A BLACK MAN IS ALWAYS A SUSPECT”. With due respect, I now see why!!!
Prof
You would remember that there was once a huge noise regarding Ncqobo J ‘ s appointment as Chief Justice, which indeed was just a genuine semantical error on the part of the Presidency. These guys are just human, fallable like you!
Spuy says:
March 8, 2010 at 15:34 pm
What if the resolution of the “fundamental legal issues” takes this beyond 2014?
Spuy, with respect, in the face of the crystal clear and unambiguous language in the Act, it seems impossible that there were really different legal opinions about this. I looked at the Act and tried to construct any arguments anyone in the presidency might have been able to make to suggest that the President is not bound. I could find no such arguments – not even implausible one’s. As a lawyer I am trained to see both sides of a legal issue or to conjure up another side but here it seems to me utterly impossible. If anyone can enlighten me by providing any arguments – no matter how implausible – for why the president is not bound by the Act I would be much obliged. I note your reference to race and find it telling. No matter how serious the problem of racism remains in South Africa (and it remains a serious problem), it seems to me to cheapen the experience of racism experienced by so many people very day by reverting to racism when one tries to defend the utterly indefensible. You dishonor the victims of racism by doing that. If, however, you or any other reader can provide ANY – I repeat ANY – arguments on how the Act could be interpreted not to bind the President, I will duly consider them with an open mind. I for one think there are none.
Spuy, this, according to the presidency was not an oversight but a deliberate decision based on disagreement within presidency. It is therefore not similar to Ngcobo matter. I received much flak from some quarters when I said it was a non event to complain about the presidential oversight in that case. This case is different because the law is very clear and relates to anti-corruption measures required by the law. By not complying and doing so deliberately is thus scandalous – not a small mistake.
Simple answer, our dear Prez has lots to hide, or at least thats what it smells like – let Mr Zuma do as he is required and let us, his employers be the judge. @ Spuy – get over yourself – your chip on the shoulder reaction is as predictable as it is inane. Can’t you do any better than playing that big old dog eared Race Card???
This kind of blocking is sickening.
I once had dealings with an ANC lawyer who was a big name in the Legal Resources Centre and on this committe and that committe, etc. who had the same kind of tackiness about himself.
We had concluded an agreement which was in plain English. Then this guy started ducking and diving and it became quite clear that his client wasn’t bound by it but mine was. Every time that we complained that they didn’t comply, he would respond by saying: “That is not how we understand the agreement.” The best one was where they could not comply because they didn’t know what the word ‘and’ meant. They wanted Senior Counsel’s interpretation of the word ‘and’. They got their opinion.
Three months later they had not complied with the agreement and then they had to go back to Senior Counsel to obtain an opionon whether the word ‘and’ had to be read disjunctively or conjuntively.
I felt the same sickening feeling when I read the article this morning. I don’t fell like dignifying such with constitutional rights. They should get the ‘rusty bargepole’ treatment.
one really has to wonder what kind of people President Zuma is surrounding himself with?
although he is the President, this kind of stuff is the business of the Department of the Presidency … or have they been on a nice relaxing cruise for the past few months?!
only two conclusions in my view – they have been negligent in their jobs, or there is something to hide and they are being instructed not to compile the report! there is no chance this little issue slipped through the cracks and was forgotten until now!
Concerned Citizen says:
March 8, 2010 at 17:01 pm
“one really has to wonder what kind of people President Zuma is surrounding himself with?”
Indeed!
It’s also interesting that this emerges at a time soon after it was reported that there may be the intentions by some to call for a vote of no confidence in President Zuma.
I agree with the comment ‘not to be shocked’. Shock has a tendency to dull the mind. My question good Prof: what must be done legally to actually bring these miscreants to book? It seems to me that the law is presently impotent when it comes to the elite. Why is that? We have the Constitution, we have the law on the books. So, 1) what excuse is there for anyone, especially those who claim to serve we the people, not to accede to the law, and 2) what excuse do we the people have for not rectifying this challenge which threatens absolutely everyone in this glorious and highly potential country called South Africa.
Should international courts be approached? Should private citizens launch class actions, as has already happened unsuccessfully? Surely there must be an approach to enforce the law via the courts for illegal and corrupt activity, regardless of the criminals accused, and they are criminals.
You are the Prof. We need answers. And who better than you to give them to us. Enough with the daily evidence we are bombarded with or the justifiable complaints and posts. We must know how to act. Advise accordingly, not just write about the failings. Fall on your knees Prof, appeal to Lady Justice. I’m sure she will inspire and advise you accordingly, if only subconsciously or in dreams. Then you can inspire and advise us as to how we must act, what steps must be taken.
This corruption, this present criminal coup who have collared a great country, they cannot continue; too many people here, many in poverty, and too much of the world who are watching with great hope for Africa. Doesn’t matter that the ignorant vote in those who oppress them. Those of us who need viable change, must have it. Give us the answers.
Pierre, I would be interested in your answer to GG’s question.
How is it that you (of all people), contrive to be “shocked” by the latest evidence of the breakdown of the rule of law or good governance?
I sometimes suspect people deliberately cultivate their capacity for outrage, fearing that the alternative would be despair and cynicism.
Is is so for you?
Michael, there may be something to your suspicion: some people may deliberately cultivate their capacity for outrage when they hear of fresh instances of the ANC’s disregard for rules. And as you suggest, they may do so with a view to preventing the onset of cynicism and despair. But that’s not such a bad thing. For a start, it strikes one as a pretty therapeutic practice. I mean, I can’t imagine anyone sincerely savoring the taste of despair and any practice that could dispel it may just be attractive. And a second reason is that the abovementioned cultivation might actually bolster the cultivator’s resolve to be better than the average ANC scumbag – and yes, on something of a customary anti-ANC note, the ANC is replete with scumbags
Remember Toni Yengeni?
He was convicted of fraud in 2003. The charge against him was that he failed to disclose to Parliament, in circumstances where there was a duty to disclose, that he received certain benefits. He went to jail for that.
Yengeni only disclosed some benifits. Zuma did not disclose anything, the way I understand it. Yengeni went to jail, and had to resign as member of parliament.
I understand why Zuma wants his private attorney there.
Spuy, all niceties aside, you still haven’t pulled your head out of your arse.
Maggs, does the motive change the facts?
Legal issues aside, he should feel morally obliged to reveal his financial interests. A honest person does not question whether there is a loophole in the law, he declares whatever has to be declared. This is particularly so given that he has stated that he wants to run a clean administration.
This proves yet again that he is a shady and duplicious person.
Timely reminder, Chris!
Sirjay raises an interesting question: You approach the Courts (a la Glenister?)
Who is the object of the mandamus? The NPA?
PdV, I’ve read the relatively short Executive Member’s Ethics Act 82 of 1998 (are there any other relevant legislation except the Constitution?) and have identified a few points that may be “grey” areas as far as the Office of the President is concerned:
S2 (2) (c) of the Act states that the interests of Cabinet ministers must be “disclose[d] to an official in the office of the President designated for this purpose”. So, the President must declare his financial affairs to his own office – a simple internal matter within the Presidency?
S3 (2) states “The Public Protector must submit a report .. within 30 days of receipt of the complaint to the President. if the complaint is against a Cabinet member.” Could this not be a case of conflict of interest??
OK, the president must submit the PP Report, any comments and report on actions taken/to be taken to the National Assembly (NA) within 14 days of receiving the PP Report. But it does not state what these actions should be. For all we know, the Presidency could simply issue a reprimand for the person responsible – i.e. for a simple case of negligence, but not criminal.
The NA could accept these actions as enough. But then again, for those in the ANC or tri-partite alliance, this could be the gift they wanted for a vote of no confidence of the President when the NA receives the report.
So really, the question is: what must be done to counter this abuse? What approach will be viable and lead to success under the law. For the sake of the people, for the law and Lady Justice herself, not just ourselves, for the sake of the country and the continent.
Brett Nortje says:
March 8, 2010 at 18:38 pm
“Maggs, does the motive change the facts?”
Perhaps you missed my other comments – in essence that this is unacceptable.
I certainly did not support our President so that he can flout the rules – he has the choices of complying or stepping down if he is unable to comply.
That said – I think it’s interesting that there is a stepwise exposing of problematic issues affecting our President at a time when there seems to be an anti-Zuma lobby building up.
Maggs is right.
I am not necessarily a supporter of Cmd Zuma.
But it now seems that there is a CONSPIRACY to drag his name in the mud.
Also: Why is there no demand that the “Madam of the Mother City” disclose her financial interests?
Madam, Mikhail, would have no problem with that, just ask her.
This stepwise exposing of negative aspects of both Zuma and Malema is definately not coinsidental. Someone is behind it, and I suspect that someone is not to far from the President, perhaps someone with his own presidential ambitions. I think time will tell us who is behind this.
Chris: are you suggesting there are no grounds for the attacks? No concern for the country?
Chris says:
March 8, 2010 at 19:37 pm
It seems like.
I get the sense that both Zuma and Malema felt invincible.
Neither, it seems, had heard of Kryptonite!
No dirt = no dirty laundry!
I am shocked and outraged because I want to believe that even if Zuma and his advisors are bad, corrupt or dishonest people, they are not completely stupid and would at least make an effort at pretending to follow the law. The failure to adhere to the law therefore comes as a surprise because it suggests an attitude in the presidency far worse than one would have expected. This is because it suggests the Preisdnet is seen as being entirely above the law – much like the old Kings of England who could chop of anybody’s head and who could do as they pleased without having to adhere to anything as silly as the Rule of Law. If this is indeed the attitude in the Presidency we are in far more trouble than I had thought. I might have been naive in thinking that Zuma was merely prepared to bend the law to get off the corruption charges and would now adhere to the law because he has learnt his lesson.
Some people thought I was exaggerating when I said Charles Nqakula and Jackie Selebi had just staged a coup d’etat when they told Parliament they would not pay compensation for surrendered firearms as required by S137 of the Firearms Control Act.
Daily, in every sphere of governance, the ANC government makes a mockery of PAJA – and, by implication – S33 of the Constitution. They have dismantled the wall around the Rechstaat we call ‘the Rule of Law’ brick by brick.
If we had made PAJA work would we have service delivery riots? The other right in the BoR fall after it like dominoes.
Is it an exaggeration to say that Zuma must have a skin thicker than a rhino?
Pierre, I think we have all been naive in putting the best possible interpretation on JZ’s actions and omissions. We are on the Zim road! I feel that the “Rulers” cannot really be SO stupid that they can be confused about what is llegal/illegal or ethical/unethical; the only other possibility is that they really hold the law and constitution in contempt. Truly frightening.
@ Eagleowl:
“Pierre, I think we have all been naive in putting the best possible interpretation on JZ’s actions and omissions.”
Eagleowl, who exactly do you embrace in the words “we all”?
Is there no room for credit to the Mkeki-ites and assorted liberals who have demonised JZ from the start?
@MDF
Sorry, I misspoke. I was a skeptic in the beginning, but was persuaded by JZ’s chameleon-like charm to suspend judgment until he had been allowed to perform. So I am now not only skeptical, but cynical. I made the assumption, incorrectly, that I was part of a large whole -”we all”.
The ANC response, as given by the M&G is most illuminating (although perhaps not in the way it should be):
http://www.mg.co.za/article/2010-03-09-anc-zuma-assets-saga-a-special-case
It is abundantly clear that no serious attempt had been made to obtain a proper legal opinion, or to comply with the law before questions were asked by the media. No amount of spin or sleight of hand can disguise this.
What a load of bullshit!
JZ has too many wives and kids to keep track of, has he?
Well, Einstein Sokutu, who is to blame for that? Or are there new arrivals we do not know about yet?
How does he work out the family’s monthly budget?
When is the ANC going to stop heaping shame on our country?
Mike Atkins says:
March 9, 2010 at 13:59 pm
“We have a special case, in that we are dealing with a president who has a large family and therefore it is not easy,”
“What you have to understand is the fact that the president has more than one wife and therefore it is a different set of circumstances, and we are asking people to really respect that. He hasn’t said that he is not going to comply.”
That’s a pretty impressive response from Mr Brian Sokutu.
A Mike and Pierre and anyone else who understands our constitution – please explain to a no-brainer like me whether our constitution is interpreted according to individual circumstances.
Just maybe that will help explain some rather exceptional decisions/actions of our President.
Oops – make that :
@ Mike and Pierre and anyone else who understands our constitution
I guess if Mr Sokutu had said nothing at all things would have been much better.
We need to fire all presidential spokespeople, they are an embarassment to the nation.
The ANC response is indeed illuminating. First, it fails to endorse the original reason advanced by the Presidency for the flouting of the law which suggests the ANC – like anyone who can read – also does not believe the original reason given. This demonstrates the weakness of the President. Second, it says instead that Zuma has so many wives, companions and dependent children that he was unable to adhere to the law suggesting that the president had a choice either to follow the law if it was easy to do or not to follow it if it was more difficult. This is, to say the least, an eccentric view of the law and suggests that the ANC believes a President has a choice when to follow the law and when not.
What can be done? Well a member of the National Assembly can report this to the Public Protector who must submit a report within 30 days. Second, if the President still fails to comply a court can be approached to order the President to comply. If he still fails he can be jailed for contempt of court. Lastly, his failure to comply with the law can be held against him politically and voters can be reminded of this flouting of the law in an attempt to convince them to vote for another party. Of course in many other jurisdictions the flouting by the law of the head of state would have created a rather big stink and in extreme cases might even have led to the impeachment of the President. Section 89(1) of the Constitution allows for this as it states that the National Assembly, by a resolution adopted with a supporting vote of at least two thirds of its members, may remove the President from office only on the grounds of-
a serious violation of the Constitution or the law…. Whether opposition parties would support such a motion is an open question as they might well believe the longer Zuma remains in power the better for them and the more harmful to the ANC.
A little off topic perhaps, and I understand that keen gardeners are lectured by lots of people to be environmentally friendly. However it’s also crucial to think about people ethics. E.G., a few makes of rotovators are made in sweatshops in the Far East. So PLEASE think about where new rotovator is coming from when you make a purchase. A cultivator made in Europe might not be cheap, however it’s a very important decision.