Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
21 July 2011

Julius Malema: the bourgeois, capitalist, libertarian?

Who would have suspected that Julius Malema subscribed to a bourgeois, libertarian and capitalist notion of accountability and privacy? Yesterday, in response to questions about how he could afford his lavish lifestyle on an ANC salary, he told journalist: “Where I get money to build such a mansion, within a short space of time, is none of your business.” This suggests that Malema endorses a view – much loved by traditional old-style economic libertarians – that a bright-line boundary should be drawn between the public and the private spheres of a person’s life – unless that person is an elected representative of the people.

According to this view, much in vogue among Tea Party activists and other fringe right-wing groups in the USA, the default position is that the state and other powerful players should keep their noses out of one’s private life. How one made and spent one’s money, how one treated one’s wife or partner, how one did business and how one’s public utterances squared up with one’s private actions – had little to do with the state or with the public at large. In fact, some even argue that it was authoritarian to allow any intrusion into this sanctified private sphere.

The state should keep its dirty nose out of one’s private affairs unless it is clear that one has broken the law. Moreoever, the law itself should interfere with one’s private life choices as little as possible because – so the argument goes – by leaving one alone the state will allow one to unleash one’s full potential to exploit one’s talents (and to exploit others who are less talented than oneself). This hands-off approach is also necessary to prevent the state from infringing on one’s rights. States are dangerous and must be feared and for that reason the law should provide radical protection for one’s privacy and personal choices.

In such a world, the public and the media have little right to ask questions about how one lived one’s life and how one made one’s money because capitalism requires capitalists to get on with the business of generating wealth by giving them a free hand to deal with their businesses as they saw fit. As long as one of the limited number of laws necessary to ensure a free hand for capitalism to thrive, has not been broken it is, indeed, nobody’s business how one made one’s money. Get lost.

This is the kind of attitude that produced a character like Brett Kebble and, before him, a long line of cowboy capitalists, starting perhaps with Cecil John Rhodes. Who cares whether Kebble bankrolled the ANC Youth League? Who cares that he spent large amounts of money to befriend the Police Commissioner? Who cares that he had been rather creative about the manner in which he shifted funds and shares from one place to another – it’s all in a days business and the state and the media should not destroy the wealth-creators by asking difficult questions.

The argument put forward by Julius Malema, namely that a politician like him – who is not currently serving in any executive, legislative or other government position – is perfectly entitled to live a life that seems to be far more lavish than the salary earned by him and that we have no right to ask how this came to pass, therefore does not sit well with his claims of being a radical anti-capitalist.

A politician like Malema can, of course, try to claim that he is a private citizen who is not accountable to the electorate in the same manner as our elected representatives in the legislature and the executive because his salary is not paid for by taxpayers. If one endorses the radical capitalist view that draws a bright-line boundary between public service and private citizenship and denies the fact that money, political power and influence impacts in any way on politics and governance issues, one could argue that there is no reason why such a politician should be obliged to inform the public where his or her money comes from.

What next, such a person would protest: Will we demand that every university Professor with a Blog explain why he or she lives in a two-bedroomed flat in Sea Point or Bantry Bay? Surely, so this argument goes, Malema is in a similar position as the head of a large corporation, whose sources of wealth should be of little concern to the electorate. Who cares whether Harry Oppenheimer stole his money or not? Just as we should not be concerned about how Brett Kebble had suddenly become seemingly filthy rich, we similarly should not worry our pretty little heads about the unexplained wealth of a politician like Julius Malema unless that politician has been elected to a position in the legislature or executive and is paid a salary by taxpayers.

Personally I do not endorse this view.

One cannot draw a bright-line boundary between the public and the private aspects of one’s life – especially not if one is a public figure with money, power and political influence. The claim that this is possible is no more than nonsense upon stilts. While we are all entitled to some form of privacy and while we all have a right to be protected from undue invasion of the most private aspects of our lives, public figures should not be able to hide behind this right to avoid scrutiny of their affairs when this impact on the public discourse and on the way we are governed.

A contextual approach must be applied to determine where the boundary between the right to privacy and the duty to account should be drawn. We have to consider several factors and weigh these up against each other. One should take account of the position that a person serves in (is he a leader of the ANC Youth League; a newspaper editor; an academic; a business mogul who bankrolls the governing party), his or her relative power and influence (both on the public discourse and potentially on decision makers who dish out tenders or other positions or benefits), the sphere in which he or she has influence, and the potential impact of that person’s views and actions on the governance of the country or on the running of the economy. We must then ask how closely these aspects are connected to the matters that the person wishes to keep private.

The closer the connection between these two spheres, the more difficult it should be to argue that one has a right to have this aspect of one’s privacy protected. The more private the action for which protection is claimed, the stronger the argument for privacy should be.

For example, if an ANC Youth League leader like Malema claims that it is none of our business whether he had had sex with a male friend, he would probably have a very strong case. There would be a very distant relationship between his sexual orientation and his private sexual activities on the one hand, and his public persona and the power he wields on the other. If we assume that he does not wield this power and has not become wealthy and influential because of his sexual relationships and given the fact that he does not espouse flagrantly homophobic attitudes in public to gain support, this should remain a private matter if the person wishes it to remain private.

But if an allegation was made that the person under discussion had a sexual relationship with Brett Kebble, who had bankrolled that person’s political campaign to become a leader of the ANC Youth League in order to buy influence from the Youth League leader to try and prevent his own arrest, the situation would of course change radically. The intimately private sphere would have become so closely connected with the political – public – sphere, that it would be in the public interest to expose this link.

In this context, how Malema made his money and how he can afford his lifestyle is clearly in the public interest. Given the fact that he is perceived – rightly or wrongly – to have enormous political influence, given further that credible allegations have been made about his involvement in companies who received tenders from the government, and given allegations made by Stephen Friedman and others that he is being bankrolled by others to fight their political battles, his claim that it is none of our business where he gets his money from is utterly ludicrous.

Even the most rabid free-market capitalist would have difficulty to convince us that there is no link between the origins of the private wealth of an influential politician (whether that politician is inside or outside government) on the one hand and his political position and the influence, power and access it provides over government officials who decides on tenders on the other. Claiming that there is indeed no such link just makes one sound like a right-wing American nutcase.

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