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.
Shocking new allegations about misconduct by President Jacob Zuma contained in The President’s Keepers, a new book by veteran investigative journalist Jacques Pauw, suggest that the President is guilty of a serious violation of the Constitution and the law (an impeachable offence). But as the Executive Members Ethics Act requires the Public Protector to investigate these alleged breaches of the law, and as support from the governing party would be required to impeach him, President Zuma remains safely in office – for now.
President Jacob Zuma is the master of appearing to deny something while not, in fact, denying it. In February 2003 Zuma was asked in Parliament “[w]hether he had any meetings on 11 March 2000 and/or on any other specified dates with Mr Alain Thetard” who was the middle man in arranging the bribe from the French arms company paid to Zuma. Then Deputy President Zuma replied: “I did not meet Alain Thetard on 11 March 2000 in Durban or anywhere else in South Africa.”
During the trial of Schabir Shaik it transpired that Zuma did indeed meet with Durban businessman Schabir Shaik and Alain Thetard, in Durban on 10 March 2000. Ignoring the second part of the question posed to him in Parliament, President Zuma gave the appearance of denying ever having met Thetard, but only denying that he met him on 11 March 2000. His apparent denial was therefore not a denial at all.
The statement issued by the presidency on Sunday once again attempted to give the appearance of a denial without being one. The Sunday Times had reported that morning that Jacob Zuma – while he was president – was for a period paid R1-million a month by a security company that belongs to a crony and friend. It also reported that the president failed to submit his tax returns during at least the first five years of his presidency. It also reported that if properly calculated President Zuma’s tax bill would have amounted to R63 881 503.
The statement by the presidency rejected “wrongdoing by President Jacob Zuma in relation to some undeclared funds” (leaving the door open that there might have been wrongdoing in relation to other funds) and claimed that “President Zuma has declared to the relevant authorities all income received” (thus not denying the allegation that he failed to submit tax returns for at least the first five years of his presidency). There was also no denial of the allegation that he had received a R1 million per month “salary” from a crony businessman for the first few months of his presidency.
The latter is by far the most shocking allegation reported in the Sunday Times and it is odd that the presidency did not attempt to deny this claim at all. In the absence of a denial, most reasonable people will assume that President Zuma was indeed on the payroll of Royal Security for a salary of R1 million per month for several months after he became President. This would mean that President Zuma is guilty of a serious violation of the Constitution and the law and has committed an impeachable offence.
Section 96(2) of the Constitution states that members of the Cabinet (which section 91(1) makes clear includes the President) may not:
(a) undertake any other paid work; (b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.
This constitutional prohibition is given effect to in the Executive Members Ethics Act, which requires the Public Protector to investigate alleged breaches of the Code of Conduct promulgated in terms of the Act. Ironically the Code of Ethics was signed into law by then acting President Jacob Zuma back in 2000. One assumes President Zuma is therefore intimately familiar with the contents of the Code of Ethics he had signed into law.
Section 2.3 of the Code of Ethics prohibits any member of the executive (which, once again, includes the President) from using their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; exposing themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests; and receiving remuneration for any work or service other than for the performance of their functions as members of the Executive.
Moreover section 4.1 of the Code of Ethics states that:
A member may not solicit or accept a gift or benefit which: (a) is in return for any benefit received from the member in the member’s official capacity; (b) constitutes improper influence on the member, or (c) constitutes an attempt to influence the member in the performance of the member’s duties.
This means that if President Zuma indeed received R1 million per month from a security company while he was already serving as President he would be in breach of the Code of Ethics. Even if he then argued that he did not receive the money as a “salary” but rather that it was a “gift”, it is inconceivable that a businessman that “gifted” the President R1 million per month would not have done so in an attempt to influence the President in some way or another to use his influence and power as President to favour the company who paid him.
But this is where the problems begin. First, section 3 of the Executive Members Ethics Act states that it is the Public Protector that is empowered to investigate any alleged breach of the code of ethics on receipt of a complaint by, amongst others, a member of the National Assembly. Unfortunately, the current Public Protector may not be up to this task.
As we know from her catastrophic handling of the Bankorp/Absa investigation, and her attempt to impose clearly unconstitutional remedial action on Parliament to change the Constitution (already overturned by the court), the current Public Protector appears to be incompetent. As we have learnt from the court papers lodged in the review of her report, she is also dishonest as she lied about the people she had consulted before concluding the report (not revealing, among others, that she had consulted with the President before concluding her report).
Second, even if the Public Protector were to investigate the alleged breaches of the Code of Ethics in a fearless and competent manner and even if she confirmed that the President did receive a salary (or a gift attempting to influence him in the performance of his duties as President) from the said security company, section 3(2) of the Executive Members Ethics Act requires her to report this to the President.
Section 3(5)(a) then bizarrely requires the President “within a reasonable time, but not later than 14 days after receiving a report” on the breach of the Code to “submit a copy of the report and any comments thereon, together with a report on any action taken or to be taken in regard thereto, to the National Assembly”.
The previous Public Protector already recommended in 2010 that Parliament amend the Act to address the problem that arises when the President himself is found guilty of a breach of the Code of Ethics. It is absurd that the Act requires the President to act against himself, so section 3(5)(a) makes no sense to the extent that it allows the President to decide whether to act against himself or not.
It is not clear why Parliament has not fixed this defect in the law more than 7 years after it was first pointed out. The most obvious explanation is that there had so far been no political appetite on the part of the governing party to change the Act to ensure that the President is held accountable for acting unethically and for breaching the Constitution and the law.
There is an obvious solution to the problem. The Act should be amended to allow the National Assembly (NA) to hold the President accountable for any breaches of the Code of Ethics. Where the President is found guilty of a serious violation of the Constitution and the law (as there would be if the President received a “salary” from a private company while he was already serving as President of the country) this would clearly be an impeachable offence.
If such a finding were to be made by the Public Protector, the precondition for impeachment (a factual finding that the President is guilty of a serious violation of the Constitution or the law) would have been met. One can hardly imagine a more serious violation of the Constitution than for the President to be caught undertaking other paid work (or being on the payroll of a decidedly dodgy company to the tune of R1 million per month) while serving as President of the country.
In that case, it would be up to the members of the NA to decide whether to act on this finding of a serious breach of the Constitution and the law. Such action would lead to the President’s removal from office in terms of section 89(1) of the Constitution if two-thirds of the members of the NA supported a vote to remove him. In effect this would require the members of the governing party to support impeachment of the President.
Judging by their past actions, it is unlikely that the members of the governing party will support the removal of the President – even if he is found guilty of a serious violation of the Constitution and the law. As the Nkandla scandal has shown, when asked to choose between condoning a serious violation of the Constitution or turning against its own leader, the members of the governing party have chosen the former (rather than the ethical) route.
The possible failure of the majority of members of the NA to hold the President accountable for a serious violation of the Constitution and the law will dismay some voters. They might again argue, as some have done in the past, that this means the Constitution is faulty. This argument is mistaken.
The President is elected by the members of the NA and only they can remove him from office. If voters are not happy with the members of a political party who refuse to remove a delinquent President from office, they have the democratic right to shun that political party at the next election.
This is how democracy works: voters reward or punish a political party, at least partly, based on the performance of the elected representatives of that party in Parliament. If voters do not punish the party by transferring their vote to another party, it would mean that they have no problem with the party representatives protecting the deeply compromised leader of their own party.BACK TO TOP