PAUL NGOBENI
President Cyril Ramaphosa continues to loudly signal that no one involved in corrupt activities will be held accountable — except, of course, his political enemies and those who did not support him at Nasrec.
It matters not that such blatant dishonesty and double standards have caused ANC precipitous loss of support amongst the electorates.
The case of embattled Eastern Cape Premier Oscar Mabuyane, who is also the chairperson of the ANC in the Eastern Cape eloquently proves the point.
Serious allegations of corruption levelled against him have not forced the ANC’s much-vaunted step-aside policy to be invoked against him.
In the face of public outrage that Mabuyane and his Public Works MEC Babalo Madikizela corruptly misappropriated funds that were meant for the memorial service of the late struggle stalwart Winnie Madikizela-Mandela, Ramphosa remained mum.
Mabuyane was found to have pocketed at least R450 000 of public funds to renovate his home.
Ramaphosa rallied to Mabuyane’s defence and promptly protected Mabuyane amid step-aside calls over these serious fraud and corruption allegations.
Ramaphosa made it clear that he rewards political supporters and could even remove their political rivals from office to ensure that any investigation against them is quashed.
A case in point was that the same Mabuyane allegedly petitioned Ramaphosa to remove Lindiwe Sisulu as Minister of Water and Sanitation in an apparent bid to shield his wife, Siyasanga Mabuyane, who had business interests in the Amatola Water Board.
Mabuyane allegedly used his support for Ramaphosa at the 2017 Nasrec ANC elective conference, to convince the president to change leadership at the ministry, to ensure reports implicating his wife at the Amatola Water Board do not surface.
Not surprisingly, at Mabuyane’s request, another Ramaphosa ally, Senzo Mchunu, who was also pressuring the president to remove Sisulu, took over the reins and started with the redeployment of the senior managers she (Sisulu) had suspended, back into their positions.
The Sunday Independent claimed that while the investigations were under way, Mabuyane became jittery and called for political favour to quash the investigation.
“He petitioned the president to get rid of Sisulu.
“It was an induced political action to ensure the new minister would ignore the report on corruption,” the newspaper added.
Ramaphosa’s magnanimity came as the Hawks and later the public protector had commenced noose-tightening investigations and reports in their probe of Mabuyane’s shenanigans.
Mabuyane has launched a counter-attack and is busy hawking several flawed conspiracy-based theories about his constitutional rights and the law relating to investigations by independent law enforcement agencies.
He has filed a lawsuit to review and set aside the Hawks’ investigation which had reached an advanced stage.
In this misguided approach, Mabuyane erroneously assumes that, regardless of the stage of the investigation, the police have a constitutional duty to inform ‘suspects’ about their fundamental rights, although section 35 of the Constitution does not require such.
Section 35(3) of the Constitution guarantees the right to a fair trial to all accused persons.
An accused is a person who has been charged with the commission of an offence. Being "charged" means that allegations against the individual have been formally formulated.
See, Sanderson v Attorney-General, Eastern-Cape 1998 2 SA 38 (CC) para 18.
Section 35 of the Constitution guarantees the interrelated rights of arrested, detained and accused persons.
Subsection (1) refers to arrested persons; subsection (2) relates to detained persons; and subsection (3) protects accused persons.
The restricted reading of these provisions suggests that any person who does not fall into any of the specified categories cannot benefit from these subsections.
In other words, the above-mentioned rights do not apply to any person outside these categories.
Flowing from this restricted reading is that a person suspected of having committed an offence, as he or she is not explicitly mentioned in section 35, cannot, therefore, lay claim to the rights contained in these provisions.
Against this background, Mabuyane’s panicked reaction is more telling and revealing of consciousness of guilt.
It is not unusual that at the earliest stage of the investigations of criminal offences, the suspect may incriminate himself, as they are neither warned of their right to remain silent nor of their right against self-incrimination.
During these interactions, a guilty and well-resourced politician like Mabuyane may launch a pre-emptive strike in the form of a lawsuit to intimidate the investigators and to stall the investigation, destroy evidence and embark on heated political rhetoric to discredit the investigators.
That is precisely the strategy Mabuyane has adopted in his attacks on the Hawks and the Public Protector.
He makes the bizarre claim that he has a right not to be investigated for alleged corruption.
As a high-ranking politician Mabuyane should know better – police officers have a constitutional duty to investigate serious allegations of corruption and criminal wrongdoing.
In some cases, a police official may harbour a suspicion that an individual has committed an offence but is of the view that he or she does not have sufficient information and decides not to arrest the former but to question him or her instead.
The police’s right to do so is unbridled and is rooted in the Constitution.
It is inevitable that in certain instances the answers that the individual proffers may confirm the police official’s suspicion and lead to his or her arrest.
As was said in S v Sebejan 1997 1 SACR 626 (W) 635 quoting Shabaan Bin Hussien v Chong Fook Kam [1969] 3 All ER 1627 (PC) at 1630; being a suspect is a precursor to being arrested or becoming an accused.
He or she is “at or near the starting point of an investigation”.
Mabuyane appears to believe that he is exempt from investigation no matter how serious the allegations levelled against him.
Lord Devlin’s formulation of the meaning of 'suspicion' is 'Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking; “I suspect but I cannot prove”.
Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end.
Lord Devlin went on to point out another distinction between reasonable suspicion and prima facie proof.
Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all… Suspicion can also take into account matters which, although admissible, could not form part of a prima facie case.
So Mabuyane is wildly misguided when he asserts some nebulous right not to be questioned as a suspect in a crime of corruption.
It would indeed be highly irrational to impose informational duties upon the Hawks from the moment the police embark on an adversarial relationship with suspects, by approaching them to establish or disprove the existence of evidence linking them to a crime.
The rest of Mabuyane’s jeremiad against the Hawks is built on a toxic concoction of political conspiracy theory in which he imagines the hidden hand of his ANC political nemesis, Ace Magashule, invocation of territorialism and tribalism.
He claims his investigation by the Hawks was instigated by Magashule but fails to explain how the same Hawks investigated Magashule and brought criminal charges against him.
Mabuyane also undermines the constitutional independence of the Hawks by claiming that he should not be investigated by the Hawks officers based in the Free State but he should be investigated only by those officers based in the Eastern Cape.
Perhaps he has the former Transkei and Ciskei police in mind.
According to the Constitutional Court, the Hawks were created to replace the Scorpions unit, which was dissolved in 2008 and they enjoy constitutionally guaranteed independence.
Both the Helen Suzman Foundation and businessman Hugh Glenister brought separate cases that were then joined, claiming the Hawks were not properly independent and were not protected from political pressure.
See, Glenister v President of the Republic of South Africa [2011] ZACC 6; 2011 (3) SA 347 (CC); 2011 (7) BCLR 651 (CC) (Glenister II).
A pivotal issue facing the Concourt was whether the Constitution imposes an obligation on the state to establish and maintain an independent body to combat corruption and organised crime.
The majority held that the Constitution did. It found that the State’s section 7(2) obligation to respect, protect, promote and fulfil the rights in the Bill of Rights inevitably gives rise to “a duty to create efficient anti-corruption mechanisms”.
This, it reasoned, is because corruption undermines rights in the Bill of Rights, including the rights to dignity and equality and various socio-economic rights.
The majority further held that the Constitution requires the State to establish an anti-corruption unit that has “the necessary independence” because establishing an anti-corruption unit that lacked adequate independence “would not constitute a reasonable step”.
In reaching this conclusion, the court considered the fact that international law imposes an obligation on the State on the international plane to establish an anti-corruption unit with the necessary independence.
This is because section 39(1)(b) of the Constitution requires that courts consider international law when interpreting the Bill of Rights.
The court emphasised, however, that the duty to create an anti-corruption unit with adequate independence does not exist only in the international sphere.
Rather, it arises from the Constitution itself, which draws the obligations assumed by the State on the international plane deeply into its heart, by requiring the State to fulfil them in the domestic sphere.
The court said: “This is not to incorporate international agreements into our Constitution.
“It is to be faithful to the Constitution itself and to give meaning to the ambit of the duties it creates per its clear interpretive injunctions.
“The conclusion that the Constitution requires the state to create an anti-corruption entity with adequate independence is therefore intrinsic to the Constitution itself.”
The Court was at pains to explain that our constitution requires the state to establish an anti-corruption unit with adequate independence, even without any consideration of international law.
It held: “Corruption in the polity corrodes the rights to equality, human dignity, freedom, security of the person and various socio-economic rights…
“Even leaving to one side for a moment the Republic’s international law obligations, we consider that the scheme of our Constitution points to the cardinal need for an independent entity to combat corruption.
“Even without international law, these legal institutions and provisions point to a manifest conclusion.
“It is that, on a common-sense approach, our law demands a body outside executive control to deal effectively with corruption.”
Both Ramaphosa and Mabuyane appear to believe that Mabuyane’s obsequious factional support for Ramaphosa and the protection he gets from the latter in return must trump the constitution.
But they are dead wrong.
In a normal functioning democracy, the President cannot prevent the NPA from pursuing indictments of any of corrupt premiers, including Mabuyane, should the evidence lead to that.
However, it appears that the Ramaphosa-controlled NPA has been weaponised to target only those who are the President’s political opponents.
By agreeing to idly stand by and not require Mabuyane to step aside as required by ANC policy Ramaphosa has established a double standard, one for disfavoured ANC opponents and one for protected corrupt cadres who supported him at Nasrec.
The NPA is being exposed for being nothing more than a tool used by the Ramaphosa faction in its battles against his political opponents.
The late Jackie Selebi was convicted and sentenced to 15 years imprisonment for allegedly receiving gifts of under R150 000 while serving as a police commissioner.
The public protector found clear and convincing evidence against Mabuyane but the NPA will obey Ramaphosa’s dictates that his supporters must be shielded from prosecution at all costs.
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