Ramaphosa must seize the moment given him by the Phala Phala exoneration and strike fast

by | Jul 4, 2023 | Chapter 9, General | 0 comments

By Paul Hoffman

03 Jul 2023
Now is an opportune time for the President to ride the wave of his exoneration and celebrate the considerable reduction of the threat posed by Paul Mashatile’s presidential ambitions. He should now feel free to deliver on his unity, renewal and anti-corruption promises.
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While it may be premature to write an epitaph for the political career of President Cyril Ramaphosa in the wake of the alleged whitewashing he received from the Acting Public Protector in what will be a highly contested report on the goings on at his Phala Phala game farm between December 2019 and February 2020, it is not too soon to consider his political legacy.

The report will be taken on judicial review by political parties interested in securing the political demise of the President. The courts will provide greater clarity regarding the meaning of phrases in the Constitution like:

  • Undertaking any other paid work;
  • Acting in any way that is inconsistent with his office;
  • Exposing himself to any situation involving the risk of a conflict of interests; and
  • Using his position to improperly benefit himself.

The Executive Ethics Act goes further with additional terminology that will also receive judicial scrutiny:

  • At all times act in good faith and in the best interests of good governance;
  • Meet all obligations imposed on him by law; and
  • Not act in a way that may compromise the credibility or integrity of his office or the government.

The duty of the Public Protector to “investigate any alleged breach of the code of ethics on receipt of a complaint” will also come under the judicial microscope due to the hands-off attitude of the Public Protector in her approach to aspects of the matter.

The Constitutional Court judgment in the Nkandla matter will be studied by all involved parties for clues on interpretation. The meaning of the phrase “the risk of a conflict of interest” will be revisited against the backdrop of the failure of the President to put the farm and the farming operations at Phala Phala into a blind trust or two when he re-entered politics as Deputy President; his decision to keep US dollars aplenty for longer than the 30 days allowed by law; his non-delivery of the game sold to the man from Sudan; his use of his personal protection unit as a private investigator, with his presidential adviser in tow on a jaunt to Namibia; his failure to report the burglary at Phala Phala to the Hawks (not just the police) and many other aspects of the narrative around the burglary will be discussed and dissected in arguments and judgments. The process may take years.

In the meantime, the President remains bound by his oath of office to “obey, observe, uphold and maintain the Constitution and all other law…”.

His exoneration by the Acting Public Protector affords him time and space to “promote all that will advance the Republic, and oppose all that may harm it”.

With an ambitious and impatient deputy snapping at his heels, it is a good time for the President to get back to basics if he wishes to salvage his legacy in the time in office that remains for him, which could be anything from a few days to the end of a second term after success in the 2024 elections.

Paul Mashatile seems to have invented a new form of State Capture, one in which he enjoys the fruits of tenderpreneurism while not engaging in this illegal and corrupt practice himself. The Public Protector will have to inquire into the propriety of this bad habit, and while she is pondering the complaints against Mashatile, the ANC will be ill-advised to recall Ramaphosa.

It is an opportune time for the President to ride the wave of his exoneration and celebrate the considerable reduction of the threat posed by Mashatile’s presidential ambitions. He should now feel free, perhaps for the first time, to deliver on his unity, renewal and anti-corruption promises made in the new dawn that commenced in February 2018 when Jacob Zuma was forced to resign his presidency.

The optimal renewal of the ANC involves the abandonment of the pursuit of the tenets of the National Democratic Revolution. There is nothing new about the idea of consigning the NDR to the dustbin of history. Most of its strivings are inconsistent with the Constitution. Conduct inconsistent with the Constitution is regarded as invalid in our multi-party constitutional democracy under the rule of law.

Too many of the projects of the NDR have been struck down by the courts when challenged by those who treasure adherence to constitutional principles over those of the NDR.

As long ago as 2010, Professor Kader Asmal, an author of the Constitution and a member of the cabinets of Nelson Mandela and Thabo Mbeki until he resigned from Parliament rather than submit himself to party discipline by voting for the demise of the Scorpions, called for the scrapping of the NDR.

His call is as valid today as it was back then. If heeded, it would certainly signify considerable renewal of ANC policies and positions.

The NDR’s practice of cadre deployment is a major cause of State Capture, as has been found by Chief Justice Raymond Zondo. Cadre deployment in the public administration and in state-owned enterprises is illegal, unconstitutional and invalid. It is likely that earlier judicial precedent on the topic will be followed in the DA’s attack on cadre deployment, in which judgment is pending in the high court.

Cadre deployment has not served SA well and it has been at the root of the corruption of the ANC. No better reasons exist for abandoning the NDR, and with it, the noxious practice that is called cadre deployment.

If Ramaphosa is serious about renewing the ANC and saving it from electoral embarrassment in 2024, it is suggested that there is no better strategy available to him than the abandonment of the NDR and all that goes with it.

That strategy would usher in the need to address the culture of corruption with impunity that is abroad in the land, both in government and the private sector, stretching way beyond the reach of cadre deployment as it is known in SA. This need has been addressed already by the justices of the Constitutional Court in terms which are binding on the state in the Glenister litigation. This means that government must implement the judgments in question.

An appropriate working draft of the necessary legislation has been on the President’s desk, with the compliments of Accountability Now since August 2021.

The draft was prepared when it appeared that Cabinet was not urgently reacting to a resolution of the ANC passed in August 2020, details of which were commented on at the time.

In the resolution, Cabinet was required as a matter of urgency to establish a new, independent, stand-alone specialist entity to counter corruption and organised crime without fear, favour or prejudice.

Seizing the reprieve offered by his exoneration by the Acting Public Protector, and using the opportunity to lay down a legacy, the President could move to establish the new anti-corruption body via the legislative process required while simultaneously ending cadre deployment and working toward the abandonment of the NDR in a modernisation of ANC policy, strategy and tactics to bring the organisation into line with the rapidly changing realities of the time and the principles of the Constitution.

In the wake of the recent turmoil in Russia, it may also be prudent to revisit the notion of non-alignment in the fragile international atmosphere that is in place since the invasion of Ukraine by Russia and the Wagner uprising there.

If the President wishes to leave a legacy in which he can take pride, the forms of renewal and anti-corruption reform suggested above could unify the nobler elements in the ANC and deliver on the promises made in 2018 when he took office.

There is a window of opportunity for decisive action to be taken. If the President prefers to dither and delay, kowtowing to the corrupt who are close to him, the chance will be lost and the initiative will swing to opposition formations or coalitions.

Cyril Ramaphosa runs the risk of going down in history as the weakest president in the history of SA since 1910. The choice to build a legacy is his and his alone. DM

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