As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Reports that the Directorate for Priority Crime Investigation (also known as the Hawks) has summoned former members of the South African Revenue Services management – including the Minister of Finance – to provide “warning statements” (a step sometimes taken before a suspect is charged and arrested), has shocked many South Africans. Defenders of the move have argued that “the law should take its course” and that it would be premature to criticise the way in which the Hawks have handled this matter. This argument might be based on a faulty premise.
It is not easy for any of us consistently to support the principle that no one should be above the law and that all should be subject to the law which must be impartially applied and administered.
There is a tendency in South Africa blindly to defend those we respect, love, or wish to protect because they belong to the same organisation than we do or share our political convictions. That is why members of the ANC, DA and EFF often defend their leaders energetically, no matter what those leaders might have done or said.
If such individuals are accused of wrongdoing, we tend to jump to their defence and (in some instances) we tend to question the motives of those making the accusations, identifying real or imagined “plots” against them – regardless of whether the known facts and the relevant legal provisions warrant suspicion of wrongdoing on their part or not.
When trying to figure out what to make of the latest revelations that the Hawks has summoned the Minister of Finance to give a “warning statement”, one should be careful not to jump to the Minister’s defence merely because you instinctively think that he is one of the “good guys” that is holding the line against those who wish to loot the Treasury.
It is not always easy to draw a clear line between “good guys” and “bad guys” – especially not in politics – and it is advisable to retain a certain amount of scepticism when trying to asses where the truth lies. But sometimes the law and the facts are so clearly stacked in favour of one side and against another that it is almost impossible for a relatively well-informed, fair and impartial person not to take sides in the dispute.
When President Jacob Zuma was indicted on 783 counts of corruption, fraud and racketeering, many South Africans jumped to his defence, questioning the motives of the Scorpions and alleging that the Scorpions chose to charge Zuma (while not pursuing other politicians suspected of wrongdoing) because of the existence of a political conspiracy against Zuma.
No one who alleged that Zuma was the victim of a conspiracy ever claimed that corruption, fraud and racketeering do not constitute criminal offences in South African law and that prosecuting Zuma on these charges would be like trying to prosecute somebody for wearing a purple jersey or buying a Streewise 2 from KFC.
Neither did anyone allege that there was not at the very least some prima facie evidence (much of it available in the public realm) to implicate President Zuma in the charges of corruption, fraud and racketeering. For example, no one has ever argued that the encrypted fax implicating Zuma in the soliciting of a bribe from an arms company, was fabricated or did not exist.
I contend that the principled response to those who argued that there was a political conspiracy against President Zuma was therefore that “the law should take its course” and that a court should ultimately decide whether the state has been able to prove beyond reasonable doubt that President Zuma is guilty of the 783 counts of corruption, fraud and racketeering. (This is exactly what the court also found in the recent Spy Tapes judgment.)
This is because, based on the law and the known facts, President Zuma clearly has a case to answer. The situation would have been different had the Scorpions pursued President Zuma for doing something that was clearly not a criminal offence (wearing a purple jersey; buying a Streetwise 2 from KFC). It would also have been different if the President was being prosecuted for committing a crime despite there being no credible factual basis linking him to the commissioning of the crime (alleging that he murdered Chris Hani, for example).
Had President Zuma been prosecuted for something that was not a criminal offence or for something that he almost certainly had not been involved in, it would have been a travesty of justice to argue that the “law should take its course” and that it was for a court to decide whether he was guilty of the crimes he was being accused of.
This is because there would have been no evidence that there was either a legal or a factual basis for his prosecution, which means it would have been evident that the prosecution was a character assassination aimed at neutralising him as a political opponent. It would have constituted an egregious abuse of the criminal justice system to achieve a nefarious political end. In such a case the law cannot take its course because the prosecution would not be based on the law at all.
Where does that leave a principled person trying to make sense of the news that the Hawks might be planning to arrest and charge the Minister of Finance, allegedly for criminal offences relating to alleged breaches of the National Strategic Intelligence Act? These alleged breaches of the Act relate to the establishment of an investigative unit within SARS to investigate tax evasion by high profile individuals and powerful business corporations.
The first thing to note is that the differences between the case of Jacob Zuma and that of Pravin Gordhan are striking. As I have explained before, the establishment of an investigative unit within SARS could not possibly constitute a criminal offence that could legally form the basis of a criminal investigation by the Hawks.
Although section 3 of the National Strategic Intelligence Act prohibits state departments from gathering departmental intelligence “within the Republic in a covert manner” it does not state that it is a criminal offence to do so. This means a person who acts in breach of section 3 of the National Strategic Intelligence Act is not committing a criminal offence. It is the equivalent of ordering a Streetwise 2 from KFC – maybe not a wise thing to do, but certainly not a criminal offence.
This self-evidently raises questions about the credibility of the Hawks investigation. When a crime fighting unit pursues a suspect for being involved in perfectly legal activities, allegations of a conspiracy becomes rather more credible than it would normally be. (Either that, or the lawyers advising the crime fighting unit are incompetent beyond belief.)
A second big difference between the Zuma case and the Gordhan case is that in the latter case there is no credible facts on the table to suggest that any of the personalities being pursued by the Hawks actually committed a crime.
In the Zuma case three different courts had found Schabir Shak guilty of bribing Zuma and of soliciting a bribe from an arms company on Zuma’s behalf, thus providing at least prima facie evidence that Zuma might be guilty of some or all of the criminal offences he was charged with. There is also the small matter of the encrypted fax which provided strong evidence linking the President to the bribe paid by the arms company.
Many of the “facts” leaked to the media about the SARS investigative unit (most of it published in the Sunday Times) turned out to be false. Moreover, the Press Ombudsman ordered the Sunday Times to retract all stories about its SARS “rogue unit saga” and to publicly apologise in writing to former SA Revenue Service commissioner Pravin Gordhan and the others implicated.
This means that there are no prima facie evidence in the public domain that might counter the perception that the Hawks investigation has a political – and not a legal or factual – basis.
Given that Gordhan is seen to be holding the line against state capture by politicians and their powerful backers, suspicions are swirling that the move made this week against Gordhan and other former SARS managers may either be related to attempts by big corporate tax dodgers to avoid paying billions of Rand in taxes, or it may be a ham-handed attempt by powerful politicians and their friends to discredit those who stand in their way of looting the Treasury.
Now, this is where one should be very cautious. One should not out of hand dismiss all allegations levelled at someone – even if that person is the Minister of Finance – merely because of who he or she is or merely because you like that person.
One should also be sceptical of any claims by a person being investigated that he or she is the victim of a political conspiracy. Even if the individual is the Minister of Finance and even if he sometimes appears to be the only person holding the line against the complete criminalisation of the state, one should take such claims of a conspiracy with a pinch of salt.
For all I know Minister Gordhan may – even as I am writing this article – be metaphorically working his way through a 21 Piece Bucket of KFC. However, this would not justify a criminal investigation against him.
Where there is no evidence that the conduct being investigated constitute a criminal offence, where the facts on which the investigation is purportedly based have mostly been discredited, and where the investigating body pursues suspects without providing any legal or factual basis for what, from afar, looks suspiciously like a politically motivated witch-hunt, platitudes about the law having to take its course will not do.
In such a context, an insistence that “the law must take its course” becomes an empty cliché, a cliché that is probably being deployed with the aim of shutting down discussion about the nefarious political shenanigans that the Hawks appears to be involved in.
Until the Hawks shows a willingness and/or ability to identify the crime which was allegedly committed and can produce credible evidence that link Gordhan or others to the commissioning of a crime, ordinary citizens will be justified in assuming that this case has nothing to do with the law taking its course, and everything to do with the abuse of legal processes for the political and economic benefit of very powerful and utterly immoral people.BACK TO TOP