Pierre de Vos, Constitutionally Speaking – 18 June 2018
Earlier this month, after another court appearance, former President Jacob Zuma again threatened his political opponents, claiming that he had knowledge of their corrupt activities and that he would expose information about their corruption. This raises the question of whether, under South African law, people who become aware of corruption have a legal duty to report it to the police and whether they commit a criminal offence when they do not.
Former President Jacob Zuma has often said that his critics have wrongly accused him of involvement in corruption, that no one has told him what he has done wrong, but in any event that he is innocent (until proven guilty) and that he will clear his name (although he has not, so far, ever attempted to clear his name regarding the 18 criminal charges, relating to 783 payments made to him by convicted fraudster Schabir Shaik).
Although Shaik was convicted of bribing Zuma (as well as of soliciting a bribe from an arms company on behalf of Zuma), Zuma has been charged but so far not prosecuted, and it is impossible to know whether the state will ever secure a conviction on one or more of the charges levelled against him.
But after his court appearance last week the former President did warn that he knew of the corruption among those who accused him of malfeasance. He reportedly said he was “tired of behaving”, that his detractors kept provoking him, and that “I might talk about what I know about them”. In what appears to be a threat, he said:
In the past few years they have played with my name immensely. They said I was corrupt. I know some of them are corrupt and I am warning that I will start speaking about their business. It won’t be fun‚ someone who was once seen as a saint…people will find out a lot about them. They will get what’s coming for them.
One way to interpret this statement is that the former President is saying that he has knowledge of corruption by his critics and that he will reveal this knowledge unless his prosecution for corruption is stopped or unless people stop criticising him.
It is somewhat unusual for a former head of state to threaten his critics in this manner. Normally a head of state who wishes to be seen as someone who upholds the law and is eager to root out corruption would have reported any suspicions of corruption to the police to allow the police to investigate the corruption and the prosecuting authority to prosecute the alleged corruption.
One would not expect the head of state to admit to hiding knowledge of corruption or to hint that he would use such knowledge of corruption only if his own prosecution proceeds or if people continued to call him corrupt. Some readers have asked me whether this line of argument does not expose the former President to prosecution for not reporting alleged corruption to the police. What does the South African law say: do you commit a criminal offense when you know about corruption but fail to report this to the police?
In terms of section 34 of the Prevention and Combatting of Corrupt Activities Act 12 of 2004 “[a]ny person who holds a position of authority and who knows or ought reasonably to have known or suspected that any other person has committed” has a legal duty to report this to the police. This is only the case if the alleged corruption involves “an amount of R100 000 or more”.
An offence is committed not only when the person really knows about corruption but also when he or she reasonably should have known about the corruption. Where a person is negligent and turns a blind eye to what is happening, he or she may also be guilty of a criminal offence.
A failure of a person in authority to report such a suspicion to the police commits a criminal offense in terms of the Act. However, this duty is restricted to persons who hold positions of authority. Section 34(4) lists those positions of authority as follows:
- the Director-General or head, or equivalent officer, of a national or provincial department;
- in the case of a municipality, the municipal manager;
- any public officer in the Senior Management Service of a public body;
- any head, rector or principal of a tertiary institution;
- the manager, secretary or a director of a company as defined in the Companies Act;
- the executive manager of any bank or other financial institution;
- any partner in a partnership;
- any person who has been appointed as chief executive officer or an equivalent officer of any agency, authority, board, commission, committee, corporation, council, department, entity, financial institution, foundation, fund, institute, service, or any other institution or organisation, whether established by legislation, contract or any other legal means;
- any other person who is responsible for the overall management and control of the business of an employer; or
This means that in terms of the Act an ordinary member of the public does not have a duty to report corruption when he or she becomes aware of it. So, you are probably not committing a crime in terms of the Act if you do not report a traffic officer asking for a bribe – although your failure might be unethical.
But the CEO of the SABC, Eskom, Prasa, Transnet and other parastatals where corruption had allegedly occurred have a duty to report any knowledge of corruption. The same applies to the CEO’s of private companies like Steinhoff, KPMG, Trillian and the like.
However, it is unclear whether President Zuma – as then President of the country – had such a duty. Section 83(1) of the Constitution makes clear that the President “is the Head of State and head of the national executive”. Section 85(1) further states that the “executive authority of the Republic is vested in the President”.
Arguably this might mean that the President has a duty to report alleged corruption relating to members of his or her executive, such as when a Minister is offered a bribe or otherwise implicated in corrupt activities. But the wording of section 34(4) is not that clear. What is clear is that the Act does not impose a blanket legal duty on the President to report corruption by members of his or her party who are not members of the executive.
However, the position might be different if the President turned a blind eye to corruption within his government because he was himself being rewarded for doing so. It is a common law offence to agree not to report a crime in return for a benefit. In terms of the common law, the offence of compounding consists in unlawfully and intentionally agreeing, for reward, not to report or prosecute a crime other than one which is punishable by fine only.
A President may also want to take heed of section 96(2) of the Constitution which states that members of the Cabinet (which includes the President) may not:
“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 use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.”
Section 96(2) of the Constitution makes clear that sharing information about future cabinet reshuffles with family members or with your friends, knowing that it would benefit yourself, your family member or friend, would constitute a breach of the Constitution. While not automatically a criminal offence in terms of the Prevention and Combatting of Corrupt Activities Act (unless it is done for reward), this would clearly be a serious breach and would constitute an impeachable offence.
In 2016 the Constitutional Court held in Economic Freedom Fighters v Speaker of the National Assembly and Others; Democratic Alliance v Speaker of the National Assembly and Others (the Nkandla judgment) that the mere fact that then President Zuma was aware of the non-security related renovations at his home at state expense:
exposed him to a ‘situation involving the risk of a conflict between [his] official responsibilities and private interests’. The potential conflict lies here. On the one hand, the President has the duty to ensure that State resources are used only for the advancement of State interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise.
There are other passages in the same judgment that suggest that, at the very least, a sitting President has a constitutional and an ethical obligation always to act in an honest manner in the best interest of the country and to obey and uphold the law. In that judgment Chief Justice Moegoeng explained:
Unsurprisingly, the nation pins its hopes on [the President] to steer the country in the right direction and accelerate our journey towards a peaceful, just and prosperous destination, that all other progress-driven nations strive towards on a daily basis. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project. He is required to promise solemnly and sincerely to always connect with the true dictates of his conscience in the execution of his duties. This he is required to do with all his strength, all his talents and to the best of his knowledge and abilities.
If a sitting President becomes aware of corruption (whether committed by his friends or his opponents) yet fails to make this public and fails to report it to the police, it can hardly be said that he is steering the nation towards a just and prosperous destination. An honest person who acts according to the dictates of his or her conscience will also report knowledge of corruption to the police.
While it is at best unclear whether former President Jacob Zuma’s admitted to committing a crime when he claimed that he has knowledge of corruption which he will only reveal at some unspecified future date, he did expose himself to charges that he is unethical and that he acted in breach of his constitutional obligations. However, whether he is aware of this, is not clear.