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.
The news that President Jacob Zuma has failed to declare his financial interests and the financial interests of his spouses, permanent companions and dependent children as required by the law, is shocking and surprising. Given the fact that the President got into terrible legal trouble after receiving more than R4 million from a fraudster and crook and then doing favours for that fraudster and crook, one would have thought that the President would be extra diligent in complying with the law to ensure that further perceptions of dishonesty and corruption do not take hold.
The Presidency claims that the President has failed to make these declarations – as the law requires him to do within 60 days after taking office – because “there was a difference of opinion in his office on whether he was required to do so”.
Oh please! Tell me another one. I for one really do not believe this statement issued by the presidency. It is about as believable as statements by George Bush that there were weapons of mass destruction in Iraq or statements by Bill Clinto that “I did not have sex with that woman.” If there really is a difference of opinion in the President’s office on whether the law requires him to declare these financial interests, then god help us all because then our President has people working for him that are spectacularly stupid or spectacularly dishonest – or both.
There cannot possibly be any confusion about whether the President and his family should declare their financial interests. Here is why.
Section 2 of the Executive Members Act requires the President – after consulting Parliament – to “publish a code of ethics prescribing standards and rules aimed at promoting open, democratic and accountable government and with which Cabinet members, Deputy Ministers and MECs must comply in performing their official responsibilities”. The Act, in its definition section, makes doubly sure that this Code would also bind the President because it defines “cabinet” to mean “the Cabinet referred to in section 91(1) of the Constitution” and then, just in case anybody is too thick to get it, the Act defines “cabinet member” as including “the President.”
Section 91(1) of the Constitution – in case anyone wondered – further states that the cabinet “consists of the President… Deputy President and cabinet Ministers.” This is about as clear as any law could possibly be.
The Code itself – which gives effect to this Act and must therefore comply with that Act – states in section 5 that every member (defined in the Code to include any cabinet member and thus, according to the Constitution as well as the Act, to include the President)” must disclose to the Secretary particulars of all his or her own financial interests as well as the financial interests of spouses, permanent companions or dependent children”. Note the word “must”, as in: “One must not kill anyone”. Pretty clear really – unless one cannot read or write or unless one is a serious crook. The statement by the presidency that the Act is unclear is therefore utter nonsense and laughable.
Why would the President be flouting the Law like this? Does he have something to hide and if so what? Well, section 6 of the Code states that like all other Cabinet members, the President must disclose his own financial interests and those of his spouses, permanent companions and dependent children including: shares and other financial interests in companies and other corporate entities; sponsorships and their sources and “other assistance” and its sources; “gifts and hospitality” and its sources; “other benefits” and their sources; foreign travel paid by a sponsor and the description of the sponsor; the land and property owned; and the pension owned, its sources and value.
This means if the President stopped flouting the law and started to comply with the Code, he would have to declare a wide range of benefits received by himself, his wives, his known children and, perhaps, even his various fiancées as well as the names of those who have provided the benefits. Although the details of benefits accruing to his spouses, permanent companions and dependent children would be listed in the secret part of the register, the Public Protector would have access to this information if any complaint is received about a conflict of interest (otherwise called a bribe).
If anyone had paid for the school fees of one of Zuma’s children, it would have to be declared. If rent on luxury houses used by Zuma, any of his wives, his girlfriends or his dependent children were paid by others it would have to be declared. If Schabir Shaik, say, had sponsored a private holiday for Zuma with one of his wives or girlfriends, it would have to be declared.
The fact that his private attorney, Michael Hulley, is currently handling the matter suggests that there is something very fishy going on here. Remember, Hulley was the lawyer who used illegally obtained recordings to provide the smokescreen for the dropping of charges against Zuma. Hulley was not allowed to be in possession of those recordings and probably committed a crime by taking possession of the recordings. He thus seems singularly unsuited to assist the President to comply with the law as required. Given his track record, he seems like the kind of person one calls in when one wants to evade or break the law.
Why not employ lawyers from the presidency to deal with the matter? Why employ the guy who managed to get you off the corruption charges? Outwardly, this looks very bad. Why get Hulley involved if the information required by the Code will not expose the President to further allegations of bribery and corruption? Or is Hulley there to help the President to flout the law by ensuring that the President does not reveal anything that could get him in trouble?
Any member of the National Assembly can lay a complaint with the Public Protector to investigate a breach of the Code. One would hope someone would lay such a complaint as the President is clearly in breach of the Code. One would also hope that when the President is finally forced to stop his flagrant flouting of the law, that journalists would go over all the details of his dealings and will compare the names of all those who have acted as benefactors to the President (assuming Hulley has not unlawfully hidden some of the information) with the names of business people who have received tenders from the state.
Something smells rotten about this duckling and diving by the President. Anyone with nothing to hide would surely have complied with the law as the President clearly is required to do. What is going on? What does the President have to hide? More undisclosed children?
PS: I see Presidential spokesperson, Vincent Magwenya, says if the president was hiding something he would not have given such an open and forthright response. In other words, if the President wanted to hide something he would have lied about breaking the law. But he has admitted to breaking the law instead of lying about it, so its ok then. This is so breathtaking in its arrogance, that I first thought it was a quote from the Hayibo website. Of course, if the President did not want to hide anything he would have complied with the law, but he IS the President so obviously he wrongly thinks the law does not apply to him.BACK TO TOP