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CR17 campaign funding – facts and law.

A report which first appeared in the Cape Argus and was later summarised by Legalbrief deserves careful consideration by those who want to believe that the ANC is not anything more than a criminal enterprise. The report appears to be credible, the words attributed to Meshack Radebe have not been repudiated and the response of the ANC spokesperson is as anodyne as it is foreseeable.

This is the summary published by Legalbrief:

Former KZN legislature Deputy Speaker Meshack Radebe has revealed how he witnessed ANC leaders giving out cash in exchange for votes at the party’s Nasrec elective conference in 2017. The veteran said what he witnessed made him realise his party was taking a wrong direction, and he decided to quit government positions. A Cape Argus report notes Radebe was a former mayor and MEC of Social Development & Agriculture. He said he declined to return to the provincial legislature despite being in the top 20 on the ANC’s provincial list. ‘When I returned from Nasrec, I said I am resigning because what I saw there I could not stomach. But the leadership, including Nxamalala (Jacob Zuma), pleaded with me not to leave until after the elections,’ he said. He was reacting to allegations that leaders used money to win support at the conference. ‘In the hotel where I was staying, cash was given out in the foyer. Delegates would come in buses to collect cash. One of the leaders giving out money is now a Minister. Delegates were counting R5 000, R3 000, R4 000. Others were complaining the money received was not enough,’ he said. ANC national spokesperson Pule Mabe last night said he was not privy to claims made by Radebe and declined to comment, notes the report.

The inescapable inference to be drawn from Radebe’s account of the goings on before the ANC elective conference vote at Nasrec in December 2017 is that bribes were being paid to secure the support of greedy delegates who moaned that they were not being paid enough. His account leaves no room for the benign explanation that out of pocket expenses, subsistence and travelling allowances or similar expenses were being refunded in the hotel foyer. Instead a frenzy of bribery was what he observed and it is what drove him out of the ANC.

This report, coming as it does on top of the disclosure that the CR17 campaign paid R70 million in ANC membership fees on behalf of lapsed supporters, is troublesome to the health of our democracy. Even if it assumed that all “helped” in this way were five years in arrears, this is “assistance” to the tune of 5 X R20,oo annual membership fee which means that 700,000 or more individuals were helped. In 2015 the official membership of the ANC was just over 769,000. The monetary figure admitted to by the CR17 campaign means that at its lowest 700,000 members were given financial assistance by the campaign. This makes a nonsense of the narrow margin of victory attained by the CR17 campaign at Nasrec.

The state is required to respect and protect the right of every citizen to “free, fair and regular elections” under section 19(2) of the Bill of Rights. The criminal justice administration cannot turn a blind eye to the scene as observed by Meshack Radebe. What he saw is evidence that the section was egregiously violated by a cabinet member whom Radebe is able to identify, among others.

The horizontal application of the Bill of Rights to individuals means that politicians must likewise ensure free and fair elective process, something which is impossible if votes are bought at any level.

It is beyond doubt that, if Radebe’s evidence is accepted, the crime defined as the general offence of corruption has taken place. The relevant parts of section 3 of the Prevention and Combating of Corrupt Activities Act make this clear:

  General offence of corruption

Any person who, directly or indirectly-

        (a)   accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or

        (b)   gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person,

in order to act, personally or by influencing another person so to act, in a manner-

          (i)  that amounts to the-

        (aa) illegal, dishonest, unauthorised, incomplete, or biased; or

        (bb) misuse or selling of information or material acquired in the course of the,

exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;

         (ii)  that amounts to-

        (aa) the abuse of a position of authority;

        (bb) a breach of trust; or

        (cc)  the violation of a legal duty or a set of rules,

        (iii)  designed to achieve an unjustified result; or

        (iv)  that amounts to any other unauthorised or improper inducement to do or not to do anything,

is guilty of the offence of corruption.

Those politicians giving “gratification” to ANC members in violation of the Bill of Rights in a manner that “amounts to improper inducement” to support them are guilty of the offence of corruption.

The politicians who are also members of the executive are furthermore bound by the executive ethics code. Clause 6 of this code obliges them to disclose “sponsorships, gifts and benefits” they receive.

Those individuals who contributed to the CR17 campaign did so to support a victory by President Cyril Ramaphosa in the elections, both internal and general in 2017 and 2019 respectively. They would no doubt be surprised to hear that their contributions are not regarded by him as being any of the above categories of
sponsorship or gift or benefit but are rather to be regarded as being for the campaign, leaving him free not to disclose them in the register kept for that purpose in Pretoria. The liability to so disclose will be determined in the upcoming urgent judicial review proceedings in which the president is challenging the finding of the Public Protector that he should have so disclosed in terms of the code.

A further obligation on members of the executive who remain politically active around election time is to avoid the risk of a conflict of interest arising. Nobody in politics seems to appreciate that an actual conflict is not required; the risk ought to be sufficient to prevent the constitutionally compliant executive member from taking the risks involved. The president was in cabinet as deputy president during the entire CR17 campaign and is still a member of the executive. Indeed, he heads the executive and ought to set a good example. He could do so by answering the following question:

Mr President: Given that you may not expose yourself to any situation involving the risk of a conflict between your official responsibilities and your private interests [in terms of Section 96(2)(b) of the Constitution, how is it possible that you are not “at risk”, illegally so, in the manner described by the Constitutional Court in the Nkandla judgment because:

  1. You have accepted campaign donations from a variety of people who do business with government
  2. You have promoted to cabinet persons who participated in and financially benefitted from your election campaign
  3. Maria Ramos, a R1 million donor, has been appointed by you to the board of the PIC
  4. Your son does business with AGO, a known tender rigger, whose late director, Gavin Watson, has given your campaign a donation of R500000 of his tainted loot
  5. Your son cancels his business with AGO once it becomes public knowledge that he works for AGO and you try to give back Watson’s loot?

Until full and satisfactory answers are forthcoming to these questions the lingering doubts will remain and the quality of our hard won democracy will be in jeopardy.

Paul Hoffman is a director of Accountability Now

29 August 2019.

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