An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
There is often a difference between what constitutes unethical behaviour and what constitutes criminal behaviour. Personally I believe that it is unethical to be racist, sexist or homophobic. Supporters of Eugene Terreblanche might disagree, but I am pretty confident that I would be able to defend my ethical stance. However there is no general criminal prohibition in South Africa against racism, sexism and homophobia. (If there was, Jon Qwelane would be in jail and not the South Africa’s ambassador in Uganda remaining silent while gay activists are murdered there.)
This distinction came to mind when I read about the rather outrageous actions of Christopher Taute, the executive mayor of the Hessequa Municipality in the Western Cape. He has written a letter (on the official municipal letter head) asking companies to sponsor the ANC election campaign in order to retain “good relationships with (the) ANC-controlled council”.
The letter reads in full:
Office of the Executive Mayor
I herewith wish to request your company for a donation to the ANC for our election campaign. As you currently have contracts with our municipality – which were made possible by this ANC-run council, I would like to make a friendly request that you contribute a donation to the ANC for the election campaign, in order to continue building on your good relations with this ANC-run council. If you would like to make a donation to our election campaign, it would be appreciated if you could do so by cheque, made out to the “ANC.”
Now, Mayor Taute will argue that what he did was not a criminal offense. Yes, his letter hints that a donation to the ANC might assist a business in retaining contracts with the municipality. Yes, the letter says that a business who does not donate money to the ANC might not build on their good relationship with the municipality. Yes, the mayor is the political head of the municipality and probably has informal links with the tender committee who makes decisions about such contracts. But nowhere does it state that a business will not be given a contract unless it donates to the ANC. One could therefore argue that the “request” was not unlawful.
Here is why.
Section 3 of the Prevention and Combating of Corrupt Activities Act no 12 of 2004 states that:
Any person who directly or indirectly accepts or agrees or offers to accept a gratification from any other person, whether for the benefit of himself or herelf or for the benefit of another person…. in order to act personally or by influencing another person so to act in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, or biased… carrying out or performance of any powers, duties or functions arising out of a constitutional, statutor. contractual or any other legal obligation that amounts to the abuse of a position of authority; a breach of trust; or the violation of a legal duty or a set of rules; designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or not to do anything is guilty of the offence of corruption.
It might well be that the mayor intended to indicate to the businesses that if they donated money to the ANC he would try and influence the tender committees (appointed by the ANC municipality) to ensure that they continue receiving tenders from the municipality. Given the dominance of the ANC members on the tender committees and the phrasing of the letter, one would be forgiven for coming to just that conclusion. Attempted corruption might well have taken place here. That, at least, is how it appears on the available evidence.
The letter is, however, sufficiently ambivilant to allow for the argument that the state would not be able to prove beyond reasonable doubt that such an intention to solicit a bribe indeed existed. In the absence of other evidence about the way in which tenders have been dealt with in that municipality and the exact donations made to the ANC in the past by businesses who had obtained tenders with the municipality, a successful prosecution would therefore seems unlikely.
This does NOT mean that what the mayor did was acceptable. In fact it was despicable and morally (if not criminally) corrupt. The letter suggests that the mayor believes that there is nothing wrong with giving the impression to businesses that they would obtain tenders with the municipality if they donate money to the ANC. In other words, the mayor is suggesting that the ANC is prepared to sell its soul for a few Rand. It suggests that the ANC is prepared to make decisions that are not in the best interest of the inhabitants of those towns if sufficient money is donated to the party.
This undermines the authority and legitimacy of the ANC. In the long term, it will erode the standing of the ANC in the community and will contribute to anger and frustration. The next time that municipality fails to deliver services in the manner it is required to do, people will wonder whether this is because an inept business was givena tender merely because it donated money to the ANC. The next time the municipality states it has no money to upgrade roads, to build houses, to provide sanitation, people will begin to wonder whether this is becauise too much money was paid to a business who had inflated its tender but was awarded that tender in any case because that business donated money to the ANC.
In other words, the ANC leadership has a duty to intervene and to condemn this behaviour of the mayor. It also has a duty to take steps to discipline the mayor. If it does not, it will signal that to it, money is far more important than service delivery and the needs of the people it professes to serve.BACK TO TOP