The illegal and unconstitutional deployment of loyal cadres of the ANC-led national democratic revolution is at the heart of State Capture and of the inability of the criminal justice administration to do its work.
Question: Why would a multibillionaire businessman need donations for his campaign to become leader of his political party in an elective conference of only about 4,000 carefully chosen and deployed cadres?
Answer: He wouldn’t, not unless the bribes paid to secure votes have soared astronomically since Polokwane, when a mere bootload of cash sufficed. 3
Question: Why would about 200 well-heeled donors feel moved to make the donations to the rich man’s campaign when he so clearly does not need their largesse?
Answer: To buy themselves political connectivity, an inside track in the governmental supply chain and the gratitude, the demonstrable gratitude, of the successful donee.
Problem: The deputy presidents and other Cabinet members of South Africa may not use their position to improperly benefit any other person, nor may they “expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests”.
Winning at Nasrec was a private interest of Cyril Ramaphosa. Ascending to the presidency from the deputy presidency, either until the next election in May 2019 or for longer, possibly 10 years longer, was as certain as the known fate of Thabo Mbeki, who was unceremoniously dumped by the ANC within nine months of his deputy succeeding him as president of the ANC. This time round Jacob Zuma was out of office within three months after his deputy succeeded him as president of the ANC.
Whether this new composition of the Cabinet will enjoy the same leadership for the next 10 years depends on the voters and on the law.
It is now, belatedly, acknowledged that Ramaphosa received campaign donations from about 200 donors willing to take a punt on him at Nasrec, including Gavin Watson of Bosasa, who put in R500,000 in circumstances and a manner still shrouded in uncertainty and secrecy.
Ramaphosa has swiftly said that he will, to coin a phrase, “pay back the money”. That is as good as closing the stable door after the horse has bolted.
It is akin to Malusi Gigaba thinking he can start over with his political career because his resignation from Parliament and, before that, the Cabinet, somehow expunged his record of mendacity and other tomfoolery and will make the criminal charges of perjury, already laid by the chief whip of the official opposition before he resigned, go away.
That is not how the law works. The civil courts have found that Gigaba lied under oath. If the criminal court hearing the perjury case does the same, he will most likely be sentenced to more than 12 months in prison and will be ineligible to re-enter Parliament until five years after his sentence ends.
Lying to courts is a serious offence. It undermines the rule of law and is contrary to the oath of office that requires politicians in office to uphold the Constitution.
Lying to Parliament is also a serious matter.
Ramaphosa has admitted that his answer to a follow-up question by the leader of the opposition was false. He says he did not know that the Watson donation was not a business deal with his son Andile. It is up to Parliament to interrogate this explanation properly. Purposely and capriciously keeping himself in the dark won’t help Ramaphosa. He is far too hands-off in his approach to his political and constitutional duties.
He woke up to State Capture, if his protestations in this regard are to be believed, far too late for comfort. He seems forgetful of or perhaps unaware of the track record of some of his Cabinet members, who belong in orange overalls in a corrective facility, not in high office.
Paying back the money will serve as a mitigating factor for Ramaphosa, but it will not detract from the fact that it is now laid bare that a businessman, who has made a fortune out of the procurement of goods and services by the state, made a donation to his campaign, thus putting Ramaphosa at risk of a conflict of interests (whether or not the risk eventuates).
Ramaphosa is therefore in breach of his his obligations under section 96(2)(b) and (c) of the Constitution and is also in breach of the code of ethics prescribed by legislation as referred to in section 96.
When the deviousness of the modus operandi used to raise the 200-odd donations for Ramaphosa is unpacked in a forensic audit, which the criminal justice administration should put in place immediately, it is likely that tax evasion and the purchase of political favours will be exposed in many of the cases.
There is usually something in it for a donor who supports the candidacy of a person who may be head of state and head of the national executive for a period that may extend to more than 10 years. The political connectivity so engendered can make the initial investment akin to casting bread upon the biblical waters. There is always the risk of a conflict of interest for the donee, which is why the Constitution frowns upon this type of arrangement.
The actual modus operandi used by the CR17 campaign and Ramaphosa’s son Andile is not clear at this stage. If a charitable trust was used as the vehicle for the donations made, then it is likely that this was done in order to sweeten the deals by giving the donors a tax break which they would not be entitled to were they simply to make a donation to the campaign. This is a form of tax evasion which carries heavy penalties and criminal sanctions that could include a jail sentence.
If, as some reports suggest, an attorneys’ trust account was used to launder donations by paying monies donated directly to suppliers of goods and services, other, also serious, consequences may follow. This aspect ought also to be the subject matter of a criminal investigation and may give the new Legal Practice Council something to chew on without upsetting the Minister of Justice sufficiently to make him close the Council down.
However, optimists ought not to hold their breath. The criminal justice administration is in such a mess that it is unlikely that any of the steps required will be taken any time soon, if at all. The Hawks, a mere shadow of what the Scorpions were in their day, answer to Police Minister Bheki Cele.
He ought to have been investigated for corrupt activities after Jacob Zuma fired him as chief of police for his dishonesty and incompetence. The recommendation of the Moloi Inquiry to this effect has been studiously ignored. The Hawks will convert themselves into turkeys voting for Christmas if they proactively do their duty in respect of both Ramaphosa and Cele.
The National Prosecuting Authority has become thoroughly dysfunctional as a consequence of inappropriate cadre deployment in the Zuma era and is currently leaderless. Any new leader worth her or his salt will have a tough time clearing out the illegally deployed cadres and replacing them with appropriately professional and depoliticised personnel. Whether the Zuma deployees will administer the kick of a dying horse, when prosecuting the matter of the donations to Ramaphosa, remains to be seen.
The illegal and unconstitutional deployment of loyal cadres of the ANC-led national democratic revolution is at the heart of State Capture and of the inability of the criminal justice administration to do its work. It is illegal to deploy cadres via the recommendations, actually in practice more like instructions, of the Luthuli House-based cadre deployment committees.
Not only has the High Court so ruled, the Constitution itself peremptorily requires the cultivation of good human resource management practices in the public administration and the state-owned enterprises. The Hawks and the NPA are included in the public administration.
Drawing only from the less than one million members of the ANC to staff both public enterprises and the civil service in a country of 57 million people can never be “good human resource management”.
Doing so in the name of “transformation” is to fraudulently misrepresent cadres as representative of the entire population, when clearly they are not.
Worse yet, the conflict of interest bind into which cadres are thrown when they try to implement the lawful policies of the government of the day instead of the agenda of the national democratic revolution, which seeks hegemonic control of all the levers of power in society, is the explanation for the paralysis in the delivery of services and, in part, for State Capture. DM
Paul Hoffman is a director of Accountability Now.
Opinion editorial published in the Daily Maverick on 20 November 2018.