Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
13 May 2010

But what about the alleged corruption?

The outcome of the disciplinary process against ANC Youth League President Julius Malema has elicited much comment – not all of it very well informed. Opposition parties have (predictably) decried the “slap on the wrists” for Malema, while some commentators have argued that the outcome augurs well for President Jacob Zuma as the sentence imposed on Malema will muzzle him and will prevent him from making trouble for the President – at least for the next two years.

Who knows where the truth lies.

More interesting though is the reasons given for the dropping of some of the more serious charges against Malema. It has been stated that these charges were prepared by Gwede Mantashe, who was not authorized to do so as he was not the person actually charging Malema. The charges were therefore procedurally deficient.

Despite this, Malema was eventually found guilty of contravening Rule 25.5.(i) of the Constitution of the African National Congress “by behaving in such a way as to provoke serious divisions or a break-down of unity in the organization”, in that:

At the ANC Youth League Limpopo Provincial Congress, on Sunday, April 11, 2010, when addressing the media, you issued the utterance that, “Even (former) President Thabo Mbeki, when he differed with the Youth League, and the Youth League had taken firm radical positions against him, he never did that” thereby implying that the ANC Youth League, of which you are the President, has taken a position against the President of the ANC.

Whether this outcome can be squared with rule 25.2 of the ANC Constitution is debatable. This rule states that disciplinary charges shall not “be used as a means of stifling debate or denying members their basic democratic rights”. Although I am not a great fan of Juju’s style of politics, it is difficult not to conclude that his offending statement was basically true and that he had a democratic right to make it. The finding of the National Disciplinary Committee (NDC) suggests that an ANC member who criticizes a fellow ANC member – even if this criticism is based on fact – may face disciplinary charges, something that seems rather undemocratic to me.

Surely, if this approach were to be strictly applied, it would stifle democratic debate within the ANC and would severely limit the freedom of expression enjoyed by ANC members. If an ANC member criticized one of his comrades because that comrade had been found guilty of corruption, say, disciplinary charges could be instituted against him or her for sowing division within the ANC. This would leave good members in the ANC who spoke out against the wrongdoing of comrades vulnerable and would make it rather difficult to raise questions about the conduct of fellow ANC members – even if this criticism is based on proven facts.

This seems rather counter-productive and even dangerous. Surely we need more ANC members exposing and criticizing their comrades for doing the wrong thing – not less of it? A culture of corruption and lawlessness flourishes where good people fear to speak out and to criticize their comrades.

I suspect the ANC Youth League will pursue this line of reasoning in its attempt to have the findings of the NDC overturned by the National Executive Committee (NEC) of the ANC.

According to the regulations attached to the ANC Constitution, disciplinary charges can be brought by “any organ or official of the ANC at Branch, Regional, Provincial or National level”. The National Disciplinary Committee is also empowered to hear and decide cases “referred to it by the ANC National Officials, NWC, or the NEC or of very serious violations or offences on its own initiative”. A charge must be prepared on behalf of the organ or officials of the ANC instituting the disciplinary proceedings.

This suggests that Mantashe should not have prepared the charges, but that these should rather have been prepared by the person actually prosecuting the case on his behalf. This is, as far as I can tell, why the three other charges against Malema were thrown out. However, the NDC itself  is empowered to hear cases “on its own initiative” where the charges are serious. This the NDC did, choosing the one charge mentioned above.

This suggests the NDC did not feel that the other three charges regarding Malema’s visit to Zimbabwe, comments about Eugene Terreblanche, and the attack on a British journalist were “serious”. The NDC apparently believed it was far more serious for Malema to have criticized the President of the ANC than to have interfered with South Africa’s foreign policy, to have ignored ANC instructions not to comment on the death of Terreblanche in order to calm the nerves of the whiteys, and to have displayed a rather shocking lack of respect for media freedom.

To my mind the whole disciplinary process seems like a side show as it skirts the real problem with Malema. Newspaper reports suggest that Malema has R53 million in the bank, that he is a major shareholder in companies that had secured tenders from various municipalities in Limpopo despite the fact that the companies were not eligible for tenders because they had no tax compliant certificates, and that the companies did shoddy work. If any of this is true, Malema is the quintessential tenderpreneur, milking the state dry for his own benefit – to the detriment of the people whom the ANC was elected to serve.

If these allegations are true – and it is difficult not to suspect that there is a grain of truth to them, given the confusing and contradictory explanations and justifications offered by Malema and his failure to sue the newspapers for publishing these defamatory claims – it would suggest that Malema is a thoroughly corrupt man who is using and abusing his position in the ANC for personal gain.

Surely, if the ANC wants to retain the trust of the majority of South African voters, it needs to deal with the growing perception that leaders like Malema are using their power and influence to get rich while service delivery is fatally compromised. Is this perception – now widely shared by people of different political persuasions and races – not far more detrimental to the well-being of the ANC and the people of South Africa than the mild criticism Malema leveled against our President?

Of course the chattering classes are far less dependent for their survival on the efficient and honest functioning of the state than the poor and marginalized in our society. The chattering classes hire private security companies to protect them, hunker down in gated communities where services are delivered by the body corporate, and eye the opportunities to enrich themselves through legal and illegal means, while those who are absolutely dependent on the state are left to their own devices. That is why members of the chattering classes get more worked up when Malema sings “Kill the Boer” or when he jets off to Zimbabwe, than about the allegations that poor black people in Limpopo had been fleeced by Malema through tender scams.

What we all desperately need – whether we are ANC supporters or not – is for investigative journalists and honest ANC members to expose any corrupt practices linked to Malema or any other ANC leaders. If alleged corruption by ANC politicians or their enablers in the private sector is not mercilessly exposed and stopped, the legitimacy of the state itself will be endangered. And once the state loses any legitimacy, it would lose the ability to keep the fragile peace in South Africa, a peace that is required for the chattering classes to continue enjoying the benefits of their wealth and privilege.

Sadly, the outcome of the disciplinary case will do nothing to address these real problems.

PS: What we also need is a police service and a prosecuting authority that will go after those suspected of corruption, whether they are in government or the private sector. That is why the appointment of Menzi Simelane seems like such a disaster to me.

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