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.
Not even the most gullible South African is going to believe that a plane with 200 guests attending the private wedding of a foreign national would have been allowed to land at an air force base if the father of the bride was not financially entangled with President Jacob Zuma and his family. Out of loyalty or embarrassment some Zuma supporters might pretend to believe that (now suspended) Chief of State Protocol Bruce Koloane is solely responsible for this scandal. The rest of us would be within our rights to demand that an independent criminal investigation be launched to find out whether the Prevention and Combatting of Corrupt Activities Act was breached.
It is not a secret that President Zuma and members of his family are financially entangled with the Guptas. (Previously, President Zuma was financially entangled with Schabir Shaik in what the High Court called a “mutually beneficial symbiosis” — before the relationship broke down when that encrypted fax temporarily landed Shaik in jail — and at death’s door — for corrupting and bribing Zuma.)
Of course, at present there is no proof that the “mutually beneficial symbiosis” between the Zuma family and the Gupta family is directly to blame for the Waterkloof fiasco, as there is no proof that President Zuma himself instructed officials to break the law in order to help his Gupta pals. It might be that the private plane was received at Waterkloof military base, that the guests entered South Africa without any customs inspection, and that the guests were escorted by specialist policemen all the way to Sun City without Zuma’s personal knowledge. The Guptas have always bragged about their connections with the Zumas and this might have led the relevant politicians and the officials that take orders from them to break the rules to accommodate the Gupta wedding party. Sometimes in order to receive preferential treatment all you need is for people to know you have the Big Man in your pocket. A wink and a nod will do the rest.
What are the elements of the “mutually beneficial symbiosis” between the Zuma family and the Gupta family? Rumours have swirled around the nature of the financial entanglement of the Guptas with the Zuma family and the influence this has bought the Guptas. As there is no independent corruption fighting body in South Africa that is independent enough, brave enough and powerful enough to investigate corruption allegations against either President Zuma and his family members or against any of the Guptas, the exact nature of the possible benefits that flow from the Guptas to the Zumas and from the Zumas to the Guptas remain unknown. But there are many proven facts, along with untested allegations and circumstantial evidence, about this relationship that will probably never be aired in court because of the absence of an independent corruption fighting body to look into whether these links have crossed the boundaries of legality.
Late last year the Mail & Guardian reported that there was evidence that the Gupta family was helping first lady number four, Bongi Ngema-Zuma, pay off her R3.8-million home loan. We also know that Duduzane Zuma, President Jacob Zuma’s 29 year old son, jointly control Mabengela Investments with Tony Gupta while JIC Mining Services is also majority-owned by the Guptas and Duduzane Zuma. There are other links: on Thursday President Zuma was supposed to board an air force Oryx helicopter at 14:00 from Swartkop air base to Sun City to attend the Gupta wedding ceremony, but these plans were shelved after the uproar about the abuse of the Waterkloof military base.
We also know that state-owned enterprises have spent more than R100 million in “advertising” in the Gupta-owned New Age newspaper, despite the fact that the newspaper has not been able to provide audited circulation figures. Two years ago the Sunday Times alleged that the Guptas might have had a role in influencing the appointment of CEOs and chairmen in key state-owned enterprises and that this was raised at an ANC National Working Committee (NWC). The Sunday Times claimed that the Guptas telephoned at least three deputy ministers and told them they were to be promoted days before Zuma announced his cabinet reshuffle; phoned several ministers to assure them that their jobs were secure ahead of Zuma’s announcement; bragged about their influence, telling one ANC premier he was “fortunate” they went to his office to see him — as many other public officials had to meet them at the Guptas’ home. Several of these claims have been denied — in general terms — by some of those involved.
Of course, the influence of the Guptas goes beyond Zuma and the ANC. Helen Zille last year admitted to having visited the Guptas’ home, where she received a donation for the DA – although she made the startling claim that she had no idea the cheque came from the Guptas. (She did enthuse about the food, which apparently was delicious.)
But given the proven facts about the shared business interests of the Gupta and Zuma families, the widespread rumours of how this entanglement is allegedly being used by the Guptas to gain some benefits from their association with the Zuma family (they reportedly often boast of their influence over Zuma) and the brazen nature of the current breach of national security, it would be bizarre (but not unexpected) if the police fail — at the very least – to investigate the Guptas for breaching the corruption laws.
Section 3 of the Prevention and Combating of Corrupt Activities Act of 2003 creates an extremely broad definition of corruption. It punishes both the person receiving or offering to receive any “gratification” and the person who gives or offers a “gratification”. The Act punishes people who take or give “gratifications” when the “gratification” is given to corrupt either the person who is offered the “gratification” or with the understanding that the corrupted person would influence others to act in a corrupt way.
This means if someone — a Gupta family member, say — hands money to the president or provides employment for a child of the president or co-opts the president’s child as a business partner, or pays the bond on the house of one of the president’s wives with the intention of creating a “mutually beneficial symbiosis” with the president for corrupt purposes, he or she is committing a crime. It matters not whether the president ever intended to be corrupted. Neither does the Act require the person providing the “gratification” from intending to get the benefit for which the bribe is being offered directly from the person the gratification was provided to.
As the Shaik judgment illustrated, there is no need to link a specific payment or provision of a specific “gratification” with the actual benefit derived from it. The state would therefore not have to show that a specific payment or benefit was made in order to buy special treatment for the Gupta wedding guests. All it would have to show is that there was an intention to buy the favour of the president for the purpose of obtaining favours from him or those directed by him in future. As long as there was an intention to corrupt and as long as a benefit was given with that intention, the person who gave the benefit is guilty of corruption.
The person receiving the benefit can also be convicted of corruption, whether he or she had the intention actually to do a favour for the person offering or giving the bribe or not. As long as he or she knew the benefit was provided for a corrupt purpose, he or she will be guilty of corruption — even if no favours are actually done in return and even if he never intended to do such favours. This much is made clear by section 25 of the Act which states that a person charged with receiving a benefit cannot offer as a defence that he or she did not have the power, right or opportunity to perform or not to perform a specific act benefitting the corruptor or never intended to provide the benefit for which he or she was bribed.
This means that if, say, a president receives a benefit from a friend who had the intention to corrupt him — to buy his influence — and the president knew or reasonably ought to have known this was the corruptor’s intention, the president himself is guilty of corruption when he accepts the “gratification” — even if he had no intention of committing a corrupt act or of influencing somebody else to commit a corrupt act.
Of course it is easier to prove that the receiver of the benefit is corrupt if he or she actually did some favour for the corruptor or influenced another person to do the corruptor a favour. Section 3 sets out what kinds of favours will be considered as corrupt, stating that this will be the case if you have a legal obligation (in terms of statute, contract or the like) to act in one way and you act differently, for example because you act illegally, dishonestly, in an unauthorised, incomplete or biased manner and this 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 or that amounts to any other unauthorised or improper inducement to do or not to do anything.
The nature of the “gratification” that must be offered, given or accepted is defined extremely broadly too. It includes giving money, any donation, gift, loan, fee, reward, valuable security, property or interest in property, as well as any office, status, honour, employment, contract of employment. It would also include any payment, release, discharge or liquidation of any loan, obligation or other liability (like paying off another person’s bond) as well as any other service or favour or advantage of any description including any right or privilege. This means if you accept the offer of someone repaying the bond on your wife’s house and you ought to have known that this offer was made for a corrupt purpose, then you are guilty of corruption yourself.
By setting out these principles I am not suggesting that I have access to evidence to prove that any of the Guptas gave the various benefits to members of the Zuma family with the intention to corrupt them. Neither am I suggesting that there is hard proof that various members of the Zuma family received “gratifications” from the Guptas knowing that this was intended to buy the influence of the president or any other family member. What I am saying is that given the bizarre favouritism shown to the Guptas by members of the government (who allowed a plane with their private wedding guests to land at a military base and then provided an official 40-man police convoy to accompany the guests to the wedding), any independent corruption-fighting body would at the very least immediately have started an investigation into the possible links between the “gratifications” provided to various Zumas and the benefits received by the Guptas in return.
But this will not happen because there is no truly independent corruption-fighting unit in South Africa who would decide — based on the prima facie evidence and acting without fear, favour or prejudice — to investigate either the Guptas or the president for potential involvement in a corrupt relationship. In any case, if there were such a body, a decision to launch such an investigation would have meant the end of its existence — just ask the Scorpions. Of course, the fact that both the Zuma family and the Guptas know this might or might not be a mere co-incidence.BACK TO TOP