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.
Is Julius Malema guilty of contravening the provisions of the Prevention and Combatting of Corrupt Activities Act (PCCAA) 12 of 2004? If he is and he is convicted in terms of this Act, he would face a minimum 15 years in jail. Unless he becomes “terminally ill” like Schabir Shaik he would then have to spend many years in jail without access to fancy cars and the millionaires’ lifestyle he is living now. Moreover, his assets could then be confiscated by the Asset Forfeiture Unit if the appropriate application is made to court. So, these allegations levelled by City Press are very serious.
City Press reported this morning that Malema has a secret trust fund – that he is “a rebel with a trust fun”, so to speak – which he uses to finance his lavish lifestyle and his political ambitions. As long as he pays the appropriate taxes in terms of money received by this fund, there is nothing illegal with having a trust fund. Hell, Paris Hilton would not be able to survive without one. But City Press also reported that the money from the trust fund comes from deposits made by businessmen who get tenders from the Limpopo Province.
If this is true, well then Malema must be in very serious legal trouble. The newspaper reports about this as follows:
The other source, a seasoned businessman who moves in Malema’s circle of friends and associates, told City Press he deposited R200 000 into the trust’s bank account after Malema facilitated a government tender for his benefit. According to him, there are at least 20 other business people who do the same. He said Malema sent him the number of the bank account via SMS. After depositing the money, Malema allegedly thanked him – also via an SMS.
The PCCAA is an excellent piece of legislation which is sadly not often used because of the lack of the political will on the part of the Police to investigate corruption and bring corrupt individuals in both the public and the private sector to book. It criminalises almost all imaginable forms of corruption in rather broad terms, making it – in theory at least – quite easy to secure a successful prosecution in a corruption case.
Because those who are corrupt are also often very wealthy – allowing them to buy political influence or even direct protection from the police – or because they are politically connected because they happen to be leaders of the governing party, people are often only investigated for corruption if they had fallen foul of one or other factions of the security services or the governing party. That is why Brett Kebble financed the ANC Youth League and the ANC proper and why that Savoi guy allegedly made more than a R1 million donation to the ANC. (In both cases something obviously went wrong and the insurance money did not buy immunity from criminal investigation, which suggests that there is still hope for us to tackle the scourge of corruption in this country.)
Section 13 of the Act would be of particular relevance regarding the allegations levelled against Mr Malema. This section states that:
(a) Any person who, directly indirectly,accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person, as—
(a) an inducement to, personally or by influencing any other person so to act,
(i) award a tender, in relation to a contract for performing any work, providing any service, supplying any article, material or substance or performing any other act, to a particular person; or
(ii) upon an invitation to tender for such contract, make a tender for that contract which has as its aim to cause the tenderee to accept a particular tender; or
(iii) withdraw a tender made by him or her for such contract; or
(b) a reward for acting as contemplated in paragraph (a) (i) (ii) or (iii),
is guilty of the offence of corrupt activities relating to procuring and withdrawal of tenders.
As is clear from this section, a person can be found guilty even if that person is not directly involved in the awarding of tenders but receives money with the understanding that he or she will influence the awarding of the tender. One does not have to show that the tender was indeed awarded to someone who paid the bribe or even that the person who received the money had the power to influence the awarding of the tender.
All one has to show is that money changed hands and that the person who received the money – in this case, if the allegations are true, this would be Malema – received it with the understanding that he would influence the tender in your favour. Even if there was no intention actually to influence the tender but one had given the impression to the businessman that one would influence it, one would be guilty of corruption.
That is why being perceived to be powerful and influential is so important for the person who receives corrupt bribes with the understanding that he would swing the tender. He would not even have to wing the tender to get the money – as long as those businessmen who pay believed that he had the power to swing the tender, the money would continue to flow into the trust fund,
Section 24 of the Act also makes clear that even if the state cannot prove that there was a direct causal link between the money given and the tender in question, the crime of corruption may yet be proven by showing that there was any abuse of a position of authority.
City Press might not have known this, but its story alleges that Julius Malema is guilty of corruption and that facts exist which, if proven in court, would require a judge to convict him and to sentence him to a minimum of 15 years in prison. To make such allegations would usually constitute defamation. Unless the allegations are true and it is in the public interest to publish them, the newspaper making such allegations could therefore be successfully sued for defamation.
Now, these allegations completely destroy Julius Malema’s credibility. He can restore the credibility by suing City Press for defamation. If he does not, we will know that he is corrupt. If he threatens to sue (which I suspect he would) but never follows through with the threat (which I suspect will happen), we will also know that he is corrupt.
If he sues and it transpires that the facts alleged by City Press are more or less true, well, his reputation would also be destroyed for ever. Many politicians threaten to sue newspapers but never do because they know that if they lose – which will often happen if the allegations are actually substantially true – they would have made things even worse for themselves. That is why watching Malema’s next move will be interesting: if he threatens to sue without suing it would be like an admission of guilt.
The upshot of this is that unless Julius Malema immediately sues City Press, he would – at least in the yes of any reasonable person – have not one single bit of credibility left. All the bluster in the world will not change this fact. All the hot air about a conspiracy against him and about racism will not change this fact. Either he sues City Press or the rest of us can start referring to him as “the corrupt Julius Malema”.