Paul Hoffman SC, Director Accountability Now
28 June 2019
Those who follow the legally oriented part of current commentary on political developments in SA have the benefit of the views of two learned professors, the one real (Professor Pierre de Vos of UCT) and the other not (Professor Balthazar, the nom de plume of a lawyer who prefers to remain anonymous). Both have recently taken positions on the pending investigation by the Public Protector of a complaint against the president lodged by the leader of the opposition. The complaint raises the spectre of the president’s possible involvement in money laundering in his funding and the risk of a conflict of interest with Gavin Watson of Bosasa/AGO infamy. It is common cause that Watson is the donor of the princely sum of R500,000 to the CR17 campaign. The success of that campaign has elevated deputy president Cyril Ramaphosa to the presidency more than a year earlier than would have been the case had his unlamented predecessor seen out his second term of office.
It appears that the existence of the donation was leaked to the Democratic Alliance and it felt obliged to act on the information made available to it in its capacity as loyal opposition and defender of the rule of law.
Professor De Vos opines that the money laundering aspect of the matter (not the alleged lying to parliament about the very existence of the donation or the risk of a conflict of interest) is beyond the jurisdiction of the Public Protector, while Balthazar questions the advisability of complaining at all. Both have raised points that require some interrogation.
The underlying question is: what is an opposition party supposed to do when the ethics and propriety of the actions of a member of the executive are challenged by way of credible evidence of wrongdoing that, at least arguably, involves criminal conduct?
The answer, it is respectfully suggested, is that, given the current dire circumstances of the criminal justice administration in SA, the DA cannot be faulted what it has done. It has taken the leaked information, both for its ethical (conflict of interest) dimension and for the criminality involved in possible money laundering, to the public protector by way of a complaint under the Executive Members Ethics Act. If the president’s alleged conflict of interest does not involve any corrupt activity, either at common law or as defined in the Prevention and Combating of Corrupt Activities Act, then the criminal justice administration does not have any jurisdiction to involve itself in the ethical aspects of the matter.
The DA’s complaint, be it directed at ethics or at criminality, is one that falls squarely within the mandate parliament gave to the public protector in 1998 when it passed the Executive Members Ethics Act. This Act is intended to keep the activities of the executive branch of government, which the president has graced since 2014, first as deputy president and since February 2018, as president, squeaky clean in an effective and efficient way through swift investigation of complaints.
As to the investigating of allegations of money laundering by or on behalf of the president, it is apparent from the Act that the task of enforcing members’ ethics is that of the Public Protector. The code of ethics contemplated in the Act requires that the president meets “all the obligations imposed on him by law”. He has taken an oath of office which requires him to “obey, observe, uphold and maintain the Constitution and all other law of the Republic” which obviously cannot be done by indulging in criminality or committing breaches of constitutionally imposed specific obligations to avoid the risk of conflicts of interest.
The Act serves the constitutional values of openness, accountability and responsiveness by requiring that the public protector report on any complaint within 30 days or such reasonably extended period as is appropriate in the circumstances.
The “Secure in Comfort” and “State of Capture” reports of the Public Protector concerning illegal expenditure at the Nkandla country seat of the Zuma clan and the matters now under investigation in the Zondo Commission respectively are reports which could not have seen the light of day had the public protector not been given the wide jurisdiction conferred by the Act to, in essence, keep members of the executive honest. Criminal charges were laid on the basis of the Secure in Comfort report (no prosecutions have followed yet) and many more are likely to arise from the process triggered by the State of Capture report.
The Public Protector is obliged by the Act to investigate complaints of the kind made by the leader of the opposition. The Act also specifies that nothing in it shall prevent or delay a criminal prosecution. This clearly implies that the investigation of criminal conduct falls within the ambit of the mandate of the Public Protector.
Professor Balthazar appears to be concerned about the possibility of a finding adverse to the president making its way into the courts on judicial review, with a possible appeal to the Constitutional Court possibly taking up a great deal of time with dire political consequences.
The DA is not litigating; it is correctly applying the law by referring a credible leak of potentially damning information to the Public Protector. The existence of the donation is admitted. The Office of the Public Protector is the institution of state that parliament has nominated to police the ethics of the executive branch of government and criminal conduct is included in the mandate so given.
The fact that the currently incumbent public protector has allegations of incompetence and dishonesty swirling around her head does not mean that the functions of her office must be suspended or not called upon to fulfil its functions. If the Public Protector is suspended pending an investigation of her fitness for office, her deputy will take over and the work of her office will continue.
Our constitution regards the rule of law as supreme. The inconvenience and delay possibly involved in the president (not the DA) launching review proceedings arising by way of the challenging of any remedial action the public protector may require cannot be used as a pretext for not acting on the information that was supplied to the DA. Professor Balthazar surely does not want a suspected money launderer as president of the country for a minute longer than the law requires. Hence the Act’s 30 day reporting requirement.
Even the risk of a conflict of interest that is involved in accepting a well-concealed “donation” from a dodgy character who has amassed great wealth via the criminal abuse of the public procurement system is arguably intolerable in a functional democracy under the rule of law. All the more so when it is widely known and well publicized that the SIU recommended the prosecution of Bosasa about ten years ago.
If the president is genuinely as innocent of the inwardness of the fund-raising activities of team CR17 as he appeared to be when answering questions in parliament last year, let the Public Protector interrogate this defence swiftly and direct appropriate remedial action without delay.
No sane investor, whether local or foreign, will be willing to make anything other than the most speculative investment in SA while allegations of money laundering by our president go unaddressed.
The concerns that Professor Balthazar has raised regarding the delays in the legal process are real. These delays may, or may not, follow from a review of the binding findings made. It is beyond question that the Public Protector is obliged to investigate both the ethical and criminal aspects of the complaint now that it has been made. The “professor’s” concerns can however be addressed by seeking acceleration on the roll for hearing both in the High Court (where the judicial review will take place) and in any possible appeal to the Constitutional Court, which is the ultimate guardian of the values of our society.
Our impartial and independent judges are all fully aware of the fact that in failed states, led by crooked politicians, the pensions of the judiciary are not paid. They will co-operate in, if not initiate, getting the matter of the assailed ethics, probity, integrity and possible criminality of the president finally adjudicated in court with the minimum of delay. The country and the courts have had more than enough experience with the downside of putting a crook in the West Wing of the Union Buildings.
~ This article first appeared on BizNews