Cyril Ramaphosa, responding to rumours about his private life, on Sunday spoke of the manner in which state machinery is employed for a particular political agenda that is in favour of those who prefer a specific candidate to replace Jacob Zuma as the president of the ruling party. But is the Constitution not there to prevent a regression to the abuse of state machinery as occurred throughout the era of the apartheid regime?
Well, it turns out that, for some, the Constitution is obviously to be honoured only in the breach. This column has long complained about the parallel universe that governs this country — a legal system presided over by a vigilant and independent judiciary together with unaccountable forces that exercise control over vast swaths of the polity and the economy. Even more disturbing is that these forces are supposed to work in concert with the judiciary to ensure a transparent, accountable government that complies with acceptable standards of probity and integrity.
Take the Hawks: when Hugh Glenister approached the Constitutional Court about legislation that created the Hawks to replace the Scorpions it was, as Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron wrote in their majority judgment, rejected on the following basis: “The core ground advanced in order to invalidate the legislation that established the DPCI [Directorate for Priority Crime Investigation] is that it lacks the necessary structural and operational independence to be an effective corruption-fighting mechanism. And that, for that reason, the impugned legislation is inconsistent with international obligations of the Republic and therefore the Constitution.”
Thanks to their judgment, changes were required of Parliament to strengthen the independence of the unit. But can anyone truly claim that in 2017 the Hawks are an effective corruption-fighting institution that ensures that South Africa fulfils its constitutional and international law obligations to fight endemic corruption?
A few days ago the Hawks warmed up their old porridge and subpoenaed Trevor Manuel and Jabu Moleketi to provide affidavits regarding the so-called South African Revenue Services (Sars) spy unit. Initially it appeared that, notwithstanding their monumental blunder in seeking to charge Pravin Gordhan, they were intent on pulling the same stunt again. Then came a qualification — Gordhan was not their target; the legality of the erstwhile unit was under their microscope.
Is this the action of a serious independent corruption busting unit? Over the past few months, thanks to the Gupta leaks, literally dozens of activities have been uncovered that represent prima facie cases of corruption and money laundering. Because of the Hawks, the ex-Sars unit assumes far greater importance than the possibility of theft and fraud of billions of taxpayer rands. The initial excuse offered was that the Gupta leaks were fruit from the poison tree and hence the evidence was inadmissible in a court. But this argument ignores that this rule is not absolute and that courts have developed rules to admit such evidence. At the very least these emails should have triggered investigations into numerous cases, all of which are far more egregious and threatening to the future of constitutional demo-cracy than the subject of the Hawks’ present obsession.
For example, we are aware that there is an investigation into the allegations regarding a Free State dairy, the Guptas, R70-million and the Gupta wedding in Sun City. But, given the emails, which are in the public domain, there is powerful prima facie evidence of money laundering and fraud, unless the published emails are not authentic. By now arrests should have been made and further documents seized. If the Hawks expended 10% of the energy they have used on this case as on the Sars case, a criminal trial would have been imminent. And as we read that in the Sars case there are state-turned witnesses, the strategy of offering immunity to a few key players to bring the major role players to book could surely have been employed.
Between the national director of public prosecutions, Shaun Abrahams, and the Hawks, key constitutional obligations central to accountable government appear to have little attraction. In similar fashion, last week Gupta tax returns were made public. Although they own vast tracts of Saxonwold property and appear on the Sunday Times richest South African list, the Gupta tax assessments reflect that they earned no interest, no dividends, no capital gains and appeared to enjoy no fringe benefits. Indeed, Sars has it that they earned no more than R1-million a year. Has Sars audited them? If not, how can it justify these returns? Or is it a case of what applies to all taxpayers does not apply to the Guptas?
A few months ago a break-in took place at the office of the chief justice. But to date the country is none the wiser about who the criminals are. This, as the deputy president has again reminded us, fits a pattern of lawlessness moving like a cancer through the constitutional body of this country.
Those who seem so reluctant to ensure that key public institutions work to promote the kind of public probity that works to the advantage of those most in need may remember that things do change. And when they do, South Africa will need to hold those who did nothing or worse to proper standards of legal accountability.