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Time for the ANC’s Integrity Commission to bare its fangs

Opinionista • Paul Hoffman • 31 August 2020

It is interesting to examine the track record of President Cyril Ramaphosa’s accusers – Jacob Zuma, Tony Yengeni and Andile Lungisa – and marvel at their ability to retain their membership of an organisation that, on paper, so closely guards its reputation.

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The ANC is appropriately and justifiably jealous of protecting its integrity. As a modern political party that has grown out of a principled liberation movement, it guards its integrity fiercely. The ANC has created an internal structure to enable it to do so efficiently and effectively.

According to Rule 24 of the Constitution of the ANC, its top officials and its National Executive Committee may: “… refer to the Integrity Commission any unethical or immoral conduct by a member which brings or could bring or has the potential to bring or as a consequence thereof brings the ANC into disrepute.”

The net is cast wide: “unethical or immoral conduct” covers a multitude of sins, some of which do not involve criminality or even illegality in the civil law sense. Indeed, it is possible to be guilty of unethical or immoral conduct without breaking the law in any way.

As the purpose of the Integrity Commission is obviously to protect the reputation and integrity of the ANC, it is appropriate that more than criminality or illegality in the conduct of ANC members should be covered by the functions of the commission. Reputational damage can follow from misconduct that is neither criminal nor illegal. Simply consider the damage wrought to SA by the ravages of the Gupta-appointed spin doctors, Bell Pottinger, as revealed in the new movie “Influence”.

It is of course, generally speaking, unethical and immoral to break the law, whether criminal or civil. The test applied in the workings of the Integrity Committee is far broader and easier to prove – bringing the ANC into disrepute can be harmful in ways that are neither criminal nor in breach of civil law. Procurement irregularities and nepotism can have both criminal and civil implications.

In the criminal courts, the standard of proof is high. An accused person is entitled to the benefit of a reasonable doubt as to her or his guilt. If the version of the accused persons is regarded by the criminal courts as reasonably possibly true, then any person who has actually committed a criminal act is entitled to be acquitted. In the civil courts, misfeasance and illegality (conduct that does not amount to a crime) are judged on a balance of probabilities, a far easier standard of proof that can be discharged on the basis of less evidentiary material than is the case for those accused of crimes.

In the workings of the ANC’s Integrity Commission, the mere potential to bring the party into disrepute is sufficient to trigger a finding adverse to the member carpeted by the party leadership. An adverse finding by the Integrity Commission could lead to disciplinary proceedings, expulsion, suspension, the laying of criminal charges, or the institution of civil proceedings against the miscreant member.

Andile Lungisa, former Youth League leader and former Nelson Mandela Bay councillor, has been convicted of assaulting a fellow councillor in the council chamber by breaking a water jug over his head. All efforts to overturn the conviction on appeal in the courts have failed.

These truisms bring into sharp focus the use of the “innocent until proven guilty” maxim of the criminal law with reference to the work of the Integrity Commission. While it is so that those facing criminal charges are entitled to a fair trial and to “be presumed innocent, to remain silent, and not to testify during the proceedings” as section 35(3) (h) of the Bill of Rights puts it, this is not the position in the functioning of the Integrity Commission. The maxim has no application to the process of determining, at its lowest, whether the conduct of the member has the potential to bring the ANC into disrepute.

There is a need in a competitive multi-party democracy under the rule of law, such as exists in SA, for political parties to keep their noses clean and to deal swiftly and surely with members whose conduct brings, or may bring, the party into disrepute. As can be seen from the broad wording used in Rule 24 of the ANC’s Constitution, quoted above, the scope of the work of the Integrity Commission is extremely broad – the mere “potential” to bring the party into disrepute may trigger a reference of a matter to the Integrity Commission.

In the hierarchy of misconduct that could theoretically inform a reference of conduct to the Integrity Commission, criminal conduct is at the top end of the scale, a violation of the civil law (including the Constitution of the country which remains and is respected by all as the supreme law) is next in seriousness, while immorality and ethical breaches feature lowest on the scale of conduct that could be referred to the Integrity Commission by ANC officials or by the NEC of the ANC.

The ANC defines its officials as: “‘officials’ means the National Officials referred to in Rules 16.1 to 16.8” – Rules 16.1 to 16.8 show that the top five of the ANC are the officials who have the power to refer integrity complaints or breaches to the Integrity Commission. The top five are the President, Deputy President, National Chairman, Secretary-General and Treasurer. The NEC also has the power to refer matters to the Integrity Commission.

Three members of the ANC have in recent days set much store in the workings of the Integrity Commission. They have complained, suggested and even demanded that the president either step down or face an investigation by the Integrity Commission. The president has indicated his willingness to explain the workings of the CR17 campaign to the Integrity Commission. He has a High Court ruling to assist him in arguing that there is nothing untoward about the fundraising that saw him succeed at Nasrec in 2017 by a narrow margin. This type of fundraising in the ANC dates back at least as far as the boots full of cash in the 4×4 car park at Polokwane in 2007.

It is interesting to examine the track record of Ramaphosa’s accusers and marvel at their ability to retain their membership of an organisation that, on paper, so closely guards its reputation.

Andile Lungisa, former Youth League leader and former Nelson Mandela Bay councillor, has been convicted of assaulting a fellow councillor in the council chamber by breaking a water jug over his head. All efforts to overturn the conviction on appeal in the courts have failed.

According to a report in the Herald newspaper on 31 August 2020: “The ANC in Nelson Mandela Bay has given Andile Lungisa 72 hours to resign from the council and step down as a task team member of the party’s Ward 2 branch. In a letter to Lungisa on Sunday, the Bay regional task team wrote that it was seeking the go-ahead from the party’s Eastern Cape bosses to temporarily suspend Lungisa’s ANC membership.”

As the assault occurred in October 2016, it is fair to ask: ”What kept them so long?” The incident was captured on CCTV and clearly has the potential to bring the ANC into disrepute.

It gets worse. According to Wikipedia: “In October 2013, Lungisa and three others appeared before the Johannesburg Specialised Commercial Crime Court over allegations of fraud and money-laundering relating to R2.5-million paid by the Department of Arts and Culture for the ‘Nelson Mandela Sports Day concert’. They allegedly promised that US singer R. Kelly would perform at the concert, but he did not. Later it was discovered that R. Kelly’s management had been unaware of the event. Their case was withdrawn in October 2016.”

Perhaps it should be reopened.

Given the powers of the Integrity Commission described above, it is difficult to divine how Lungisa is still a member of the ANC.

Neither the top officials of the ANC nor its NEC have ever seen fit to refer, properly and effectively, to the potential harm to the reputation of the ANC wrought by the antics and activities of Zuma, Yengeni and Lungisa to its Integrity Commission. It is not too late to do so. 

The same applies to Tony Yengeni, former ANC chief whip in Parliament and now head of the crime and corruption desk at Luthuli House. He was sentenced to four years imprisonment for defrauding Parliament by not disclosing a discount he received on a new vehicle supplied to him by a company involved in the arms deal of 1999. Here is what the judges on appeal found:

“[33] …There can be no doubt that the appellant [Yengeni] intended to deceive Parliament and its members by the deliberate failure to record the benefit he had negotiated for himself. One needs only to imagine the chorus of protest that would have arisen from the opposition benches if these facts had become general knowledge at that stage.

“[34] The fact that the appellant intended to deceive the members of Parliament and the public at large is established beyond doubt by the stubborn denials of the truth reiterated by him for almost two years after the first suggestions were made of the appellant being involved in an improper transaction, and by the deliberately deceitful advertisements published by himself in order to cover his tracks and to launch an unbridled and dishonest attack upon his critics.

“[35] It was never seriously contended on behalf of the appellant that he was not obliged to disclose the benefit he received and that his failure to do so was deliberate. That appellant harboured the intention to defraud has therefore been established beyond a reasonable doubt.”

Yengeni served all of four months of his sentence and was carried shoulder high into and out of prison by his supporters, all of whom displayed scant regard for the rule of law. That he should still be a member of the ANC, an official at its headquarters and a member of its NEC, beggars belief.

The third accuser of the president is Jacob Zuma, former president of the country and of the ANC. He is facing charges of corruption in the KZN High Court arising out of his relationship with Shabir Shaik, who was sentenced to 15 years imprisonment for corrupting Zuma. These facts surely have the potential to bring the ANC into disrepute.

The ethics and morality of Zuma are also questionable. He was charged with rape and acquitted on the basis that his version of his sexual encounter with a young woman was reasonably possibly true. His version does not withstand ethical or moral scrutiny. These are the questions which ought to have occupied the attention of the ANC’s Integrity Commission, but did not:

Should an open, accountable and responsive constitutional democracy have entrusted its presidency, both head of state and leader of the national executive, to an old man who admits to having unprotected sex with a young woman less than half his age, who is to his knowledge HIV positive? A troubled woman who happens to be the daughter of his late wartime friend, comrade and protector as well as his vulnerable house guest, one who calls him “uncle”? A married man, who, to protect himself, his many wives and lovers against the risk of infection, takes that ridiculous precautionary measure that has left him with a thoroughly deserved shower head in Zapiro’s cartoons?

Should the public, and the ANC, be surprised that this man calls the Guptas his friends, presides over a State Capture project with them, and helped himself to public money to improve his home at Nkandla in violation of his oath of office and constitutional obligations?

Neither the top officials of the ANC nor its NEC have ever seen fit to refer, properly and effectively, to the potential harm to the reputation of the ANC wrought by the antics and activities of Zuma, Yengeni and Lungisa to its Integrity Commission. It is not too late to do so. 

It is bizarre that both Zuma and Yengeni are on the NEC when the court findings against and implicating them are so clear. DM

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