Johannesburg - Public Protector Thuli Madonsela has entered the #Zuptagate drama, along with struggle stalwart and ANC veteran, Ahmed Kathrada’s foundation, which called for a probe, ramping up the scandal gripping the country.
However, at the ANC’s 90-member National Executive Committee's meeting, which began in Pretoria on Friday, ANC secretary-general Gwede Mantashe was adamant there had been “no pressure” on delegates in the wake of repeated calls from senior politicians to act on the alleged interference of the influential Gupta family in state affairs.
There has also been a call by the SACP for a commission of inquiry into the phenomenon of “state capture”, and corruption charges have been laid against the Gupta family by the DA, which added its voice to the call for an investigation by Madonsela.
Madonsela’s office confirmed on Friday it had been asked by the Dominican Order to “conduct a systemic investigation into the involvement of the Gupta family in state affairs and the award of contracts to companies linked to the family”.
But proving corruption would pose a serious challenge, according to Professor Mtende Mhango, deputy head of the Wits School of Law, who said the first problem was that corrupt activities usually involved someone with the legal authority to grant the favour they were offering or being asked for.
“So, the police officer says: 'Give me R50 and I won’t give you a ticket' because he actually has the authority to give you a ticket, and if you give him the R50 he won’t.”
In this case, the Guptas were alleged to have made the offer of ministerial positions to Deputy Finance Minister Mcebisi Jonas and former chairperson of Parliament’s public enterprises committee Vytjie Mentor, but did not have the legal authority to give their offers effect.
“That’s where it becomes complicated,â€ Mhango said.
More information would have to come to light before it might be possible to say there was a case to answer.
Writing on his Constitutionally Speaking blog, UCT law professor Pierre de Vos said it would constitute a criminal offence to offer a ministerial post in exchange for favours.
”The (Prevention and Combating of Corrupt Activities) Act does not require the person offered the benefit to have accepted it,” De Vos wrote. “The offer alone constitutes a criminal offence.”
But Mhango said that for the purposes of a criminal prosecution the case would have to be proved beyond reasonable doubt, which would be hard to do on the basis of testimony from one or two people saying they had been made offers by the Guptas.
“Right now we’ve only heard from a few people that have said this was said. So one testimony would not be sufficient, at least for a case like this,” Mhango said.
Testing whether President Jacob Zuma had been influenced by the Guptas in making any decisions would also be difficult.
While the constitution specifically gave him and him alone the power to appoint and remove ministers, this didn’t mean he couldn’t consult before applying his mind and reaching a decision.
“All decisions the president makes have legal and political implications, so he is going to talk to somebody and say: ‘Look, I’m about to do this - what are your views?’, and then he goes and makes a decision,” Mhango said.”But here it’s alleged he was talking to people who are not even government officials. That’s the problem.”