Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
27 March 2019

Possible corruption? – Andile Ramaphosa and the R2 million payment from Bosasa

Andile Ramaphosa, son of President Cyril Ramaphosa, this week admitted that he received R2 million from corruption-linked company Bosasa. He claimed that the payments were made in exchange for “advisory” work done by his company, Blue Crane Capital, on a series of more than 20 government and private contracts in Uganda and Kenya. He initially claimed these contracts were potentially worth “billions” of Rand, but later retracted this claim. This raises the question whether Andile Ramaphosa could face prosecution for corruption.

Corrupt companies who wish to buy influence over strategic politicians can do so by donating money to the political party to whom the targeted politician belongs. Such a company could also pay a bribe directly to the targeted politician – although even in South Africa (with its corruption enforcement) that would be a pretty stupid thing to do.

Probably the craftiest way to “buy” indirect influence over a politician without being caught is to channel money to a close family member of that politician (say, to a brother or sister, or a son or daughter) and to claim that the money was in exchange for some unspecified or vaguely defined “service” rendered by the family member of the targeted politician. Various children or siblings of politicians – Duduza Zuma, Tshepiso Magashule, and Brian Shivambu among them – have been accused of taking money from corrupt businesses in such circumstances.

While it would be difficult in such cases to secure corruption convictions of either those who offered the money or of those who accepted it, it would – depending on the specific facts of each case – not be impossible to do. It would almost certainly depend on whether the state is able to gather sufficient evidence to allow the court to draw inferences about the guilt of the accused. As the Supreme Court of Appeal (SCA) noted last year in Scholtz and Others v S:

Corruption is all too often an issue which has to be determined by way of inference drawn from the proven facts. In this regard, like pieces in a jig-saw puzzle, a number of events need to be taken into account to determine the full factual matrix from which inferences may permissibly be drawn.

The Prevention and Combatting of Corrupt Activities Act of 2004 is the comprehensive piece of legislation dealing with corruption which sets out the requirements for proving a case of corruption. The Act contains sweeping provisions that – on paper, at least – should make it easier to prosecute pricvate individuals and state officials for either paying or receiving money for a corrupt purpose.

Section 3 of the Act contains a general offence of corruption that applies not only to private individuals who offer bribes but also to private individuals who accept bribes. This section states that anybody who (a) accepts any gratification in the form of money or another benefit from anybody else, or (b) gives any gratification in the form of money or another benefit to anybody else with the aim of influencing the receiver of the money either to personally to unlawful exercise any of his or her duties, or to get the receiver of the gratification to influence another person so to unlawfully exercise any of his or her duties.

It is therefore not required that the money should have been paid with the aim of convincing the person receiving the money to do something unlawfully him or herself. It would be sufficient that the aim of the person paying the money was to influence the person receiving the money to influence somebody else (their mother, father brother or sister for example) to unlawfully exercise his or her duties.

Regarding the R2 million paid by Bosasa to Andile Ramaphosa, it would be sufficient for the state to show that this was done with the aim of getting Andile Ramaphosa to try and influence his father to do or not to do something unlawful in his capacity as ANC or South African Deputy President or President.

But this is not the end of the matter.

Whether the state would be able to secure a conviction for corruption against Bosasa or against Andile Ramaphosa would largely hinge on whether the state is able to prove that Bosasa (or some of its officials) and Ramaphosa had a corrupt intention in offering and receiving the R2 million.

In corruption cases it could be difficult to prove that money was paid or accepted with a corrupt intention. It is for this reason that South African courts – relying on various provisions of the Prevention and Combatting of Corrupt Activities Act – have made it easier for the state to prove that either the corruptor or the corruptee had the requisite criminal intension.

First, the SCA in Selebi v S confirmed that the state would not have to prove direct intension to secure a conviction. The state would have to prove either that the parties knew or that they should have foreseen that the payments would create a corrupt relationship between the parties. As the court noted:

The recipient must have the required intention at the moment he receives the gratification… [I]ntention always includes a certain knowledge, namely knowledge of the nature of the act, the presence of the definitional elements and the unlawfulness. A person has knowledge of a fact not only if she is convinced of its existence, but also if she foresees the possibility of the existence of the fact but is reckless towards it; in other words she does not allow herself to be deterred by the possibility of the existence of such fact. She then has intention in the form of dolus eventualis.

This means that if Bosasa had the intention to pay a bribe to Andile Ramaphosa, the latter would have criminal intention if he either knew of Bosasa’s criminal intention, or if he foresaw the possibility that Bosasa was offering him the money to buy influence over him with the hope that he would be able to influence his father.

The SCA in the Selebi case further pointed out that the legislature has made it easier for the state to prove the presence of intention with the inclusion of section 24 in the Prevention and Combatting of Corrupt Activities Act. This section provides:

that once the prosecution has proved that gratification (payment) was accepted or agreed and the State can show that despite having taken reasonable steps, it was not able with reasonable certainty to link the acceptance of the gratification to a lawful authority or excuse on the part of the person charged, and in the absence of evidence to the contrary which raises reasonable doubt, it is sufficient evidence that the person charged accepted such gratification of that person ‘in order to act’ in a manner envisaged.

Once the state proves payment was accepted, there is therefore a rebuttable presumption that the person receiving the money had a corrupt intention. Where a seemingly corrupt business like Bosasa pays a close relative of an influential politician a large sum of money, the pivotal question will therefore become whether it was possible “with reasonable certainty” to show there was lawful authority or excuse for Bosasa to pay the money to Andile Ramaphosa.

In the case of Andile Ramaphosa, the question will be whether there was indeed a contract between him or his company and Bosasa to provide “advisory” services, if there was such a contract, whether this contract was genuine or whether it was a fake contract drawn up to hide the existence of the bribe. If Andile Ramaphosa was therefore eager to clear the air, he would (a) produce the original contract between him and Bosasa; and (b) he would produce evidence that he in fact provided the services that he was allegedly paid for.

As the SCA made clear in Scholtz and Others v S the state would not have to show that there was an agreement between a corruptor and corruptee on precisely what the corruptee was required to do in exchange for the money given to him. In the case under discussion it would be sufficient for the state to show that the Ramaphosa junior realised that “the generosity and payments he had received had created a dynamic whereby he” would be indebted to Bosasa and would have to remain willing to do favours for Bosasa in the future.

Finally, would somebody like Andile Ramaphosa be able to offer the defence that he did not in fact attempted to influence his father to do anything unlawful to benefit Bosasa? In a concurring decision in the Selebi matter two judges of the SCA, held that the Act does not require a quid pro quo from the corruptee. The judges argued that section 25 of the Act supports this wide interpretation as it provides that it would not be a valid defence for that accused person to contend that he or she “failed to perform or not to perform the act in relation to which the gratification was given, accepted or offered”.

Ramaphosa would therefore not be able to avoid culpability merely by claiming that he never, in fact, attempted to influence his father on behalf of Bosasa. The question is therefore not whether Ramaphosa in fact used his influence as the son of the Deputy President and later President to get others to do unlawful things, but whether a bribe was paid to him, while he knew that it would be expected of him to do something in return.

In conclusion, if you are a close family member of an influential politician and you receive suspiciously large amounts of money from a dodgy entity without being expected to render services of an equivalent value in return, you might well potentially be in serious legal trouble. Whether Andile Ramaphosa might be in such trouble depends on whether he had a valid and honest agreement with Bosasa and whether in in fact rendered services to the value of R2 million for Bosasa.

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