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.
Most South Africans are justifiably angry about the continued failure by the state to prosecute individuals implicated in corruption. While it is important that more corrupt politicians be prosecuted, convicted, and appropriately punished (a mandatory 15 years prison sentence is prescribed for corruption), this is not the only manner in which they could be held accountable. Political parties – specifically the ANC – can take action against their members. But they often don’t, hiding instead behind the law to protect their own from the consequences of their corrupt or other incendiary behaviour.
Earlier this week Ace Magashule, Secretary General of the African National Congress (ANC) claimed in a statement that the ANC’s national executive committee (NEC) was “outraged and deeply embarrassed” about allegations of corruption levelled at some ANC leaders, members and their families. “We unequivocally condemn all forms of corruption, dishonesty and state capture involving the public and private sectors, including collusion, price-fixing, tender fraud, bribery, illicit financial flows, illegal imports and misuse of tax havens,” Magashule claimed. He also said the NEC believed those who looted public resources must face the might of the law.
It is impossible to square this statement with the actions last month of the same NEC when it reinstated ANC Limpopo deputy chairperson Florence Radzilani and treasurer Danny Msiza to their party positions. City Press reported at the time that arguments used to support the reinstatement cited other leaders who were still on either the NEC or provincial executive committees (PECs), despite serious allegations or findings against them.
These included Transport Minister Fikile Mbalula over a Public Protector report on a trip he took his overseas, former MP Mdu Manana, who was convicted of three counts of assault with intent to do grievous bodily harm, former Gauteng health MEC and ANC PEC member Qedani Mahlangu for her role in the Life Esidimeni tragedy, KwaZulu-Natal ANC deputy chairperson Mike Mabuyakhulu for his arrest over money laundering and corruption, as well as former deputy president of the ANC Youth League Andile Lungisa in the Eastern Cape’s Nelson Mandela Bay Metro, who was convicted of assault.
In essence, the argument is as follows: the party had failed to deal with some leaders implicated in corruption and other forms of wrongdoing, which means it also had a duty to fail to deal with other leaders implicated in corruption and wrongdoing. As it needs to treat party members in the same manner, and as it was necessary to turn a blind eye to the alleged corruption of some leaders, it was also necessary to turn a blind eye to the corruption or other wrongdoing of all other members as well. This amounts to an admission that the party is not willing to act decisively against any of its members implicated in corruption and other types of wrongdoing.
This approach is at odds with the claims made by Mr Magashule on behalf of the ANC NEC earlier this week. If the party was outraged and deeply embarrassed about its members being implicated in corruption and other wrongdoing, one would expect this to be reflected in the actions taken by the party against such members. Perhaps the statement would have been more accurate had it said that the ANC wanted to be seen by voters as being outraged and embarrassed about its members being implicated in corruption, without having to actually take any action against its members.
The party may well argue – as many of its implicated members often do – that “the law should take its course” and that the party would take action against an individual once he or she had been convicted of corruption and sent to prison. The party and its implicated members may also argue that its members should be presumed innocent until proven guilty and that it would be unfair for the party to take actions against them before they are so convicted.
These are a wrongheaded and dishonest arguments aimed at avoiding having to take any action against the very people the Secretary General claims the ANC NEC is outraged and deeply embarrassed about. A political party is not a court of law, neither is it an employer of its members and leaders in the normal sense of the word. It is a political entity organised and managed with the view of gaining the maximum number of votes in a free and fair election. When its members and leaders act against the party interest and alienate voters, the party has a duty to act against such members to secure the party’s interests. Which is why the Constitutions of political parties almost all contain provisions that allow them to take action against its members and leaders who bring the party into disrepute.
For example, the ANC Constitution of 2017 describes the types of actions of a party member, officer bearer or public representative which shall constitute misconduct in respect of which disciplinary proceedings may be invoked and instituted against him or her, which includes:
25.17.4 Engaging in any unethical or immoral conduct which detracts from the character, values and integrity of the ANC, as may be determined by the Integrity Commission, which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute; 25.17.5 Behaving in a manner or making any utterance which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute.
The ANC Constitution helpfully defines “disrepute” to mean “the absence or loss of reputation, discredit or disgrace”. It would be rather difficult to argue that party leaders implicated in corruption have not contributed, and do not continue to contribute, to the loss of reputation of the ANC.
As the expulsion of Julius Malema from the ANC illustrates, it is not necessary for a party member or leader to be found guilty of a criminal offence before he or she could be found to have brought the party into disrepute. Whenever there is credible evidence that an individual has been implicated in corruption or other wrongdoing, large numbers of voters will think less of the party and this will bring the party into disrepute.
The cases of Florence Radzilani and Danny Msiza illustrates this perfectly. Both were fingered in a comprehensive and credible report compiled by Adv Terry Motau, which report was commissioned by the Deputy Governor of the South African Reserve Bank, in his capacity as the Chief Executive Officer of the Prudential Authority, established in terms of section 32 of the newly promulgated Financial Sector Regulation Act 9 of 2017.
A party who was truly outraged and deeply embarrassed by two of its senior leaders being implicated in an outrageous bank heist which led to many people losing their life savings would have charged the two for breaching the ANC Constitution and if found guilty, would have expelled them from the party. The same is true of many other implicated ANC leaders including Malusi Gigaba, Mosebenzi Zwane, Nomvula Mokonyane, Jacob Zuma and Ace Magashsule and many others from both the Cyril Ramaphosa camp and from the Jacob Zuma camp.
Of course such disciplinary hearings would have to comply with the procedural rules set out in the ANC Constitution and any other procedural safeguards applicable to such a process. But from a legal point of view, absolutely nothing stops the ANC from disciplining its many rogue members and expelling those whose actions have brought the party into disrepute.
The fact that this has not been done, despite the catastrophic damage this is doing to the party’s reputation, suggests that it is not politically possible to do so, because those implicated in corruption enjoy too much political support within the party. In other words, disciplinary action and expulsion is impossible because of widespread support for corruption within the party. The party probably also believes that voters will be taken in by its ant-corruption rhetoric and will not notice that the party refuses to take action against its implicated leaders.
(It is probably for the same reason that the Democratic Alliance (DA) has not disciplined Helen Zille, its Federal Chairperson, for bringing the party into disrepute – something prohibited by section 126.96.36.199 of the DA Constitution – despite her many racist and other incendiary Tweets. It must be because Zille’s racist and other incendiary Tweets enjoy widespread support within the party and the party can therefore not politically afford her expulsion. Just like with the ANC, the DA’s failure to take action may cost it dearly at election time, although the party leaders seem to believe that voters will not notice or will forgive the party for its failure to act.)
All this reminds us not to be taken in by what politicians say, but rather to judge them by what they do. As long as the ANC fails to take action against its own members, all the rhetoric in the world is not going to convince me that it truly is outraged and embarrassed about corruption in its own ranks.BACK TO TOP