Duduzane Zuma’s inaccurate accusations about Pravin Gordhan’s personal investments would be risible were they not quite so defamatory. It is quite remarkable, given the factual background, that Duduzane Zuma has the bare-faced effrontery to accuse Pravin Gordhan of failing to disclose the potential for conflicts of interest between his personal investments and his decision-making as finance minister.
The son of a “corrupt and broken” president (one who appointed Gordhan as his finance minister and has collective responsibility with him for Cabinet decisions made during all of the six of the last eight years of which Duduzane complains) is way out of line.
Zuma junior writes in his widely published open letter to Gordhan: “It has long been rumoured that you own shares in various large South African companies, especially financial services, an area where you have consistently blocked a state bank and more competition. Yet you made no public disclosure of your holdings or noted the potential for conflicts of interest with your decision-making.”
Duduzane should know that MPs have to disclose their interests. In fact, there is a register available for his scrutiny. He can Google it — he does not have to rely on rumours. According to the 2016 register, Gordhan did, indeed, hold a broad portfolio of shares across all sectors of the JSE. But there is nothing unusual about that. Gordhan also discloses, very properly, his pension interests, both as former national commissioner of the South African Revenue Services (SARS) and as former minister and current MP. Indeed, his biggest investment by far is his pension.
The value of his pension is inextricably linked to the success of the country and the prosperity of the Government Employees Pension Fund. It is ludicrous to suggest, as the younger Zuma does, that his own father’s carefully chosen appointee is in a conflict of interest situation because he has a few modest investments in financial services. Especially so when his major investment is in government pensions from the public service he has performed.
This twaddle is compounded if one examines the inwardness of the relationship between the Zumas and the Guptas. As everyone knows, not only from their acquaintance with the Constitution but also on the basis of the frequent litigation in which the president is involved, he may not act in any way that is inconsistent with his oath of office “or expose [himself] to any situation involving the risk of a conflict” between his official responsibilities and his private interests. This is laid down expressly in Section 96 of the Constitution.
One of Jacob Zuma’s private interests is his friendship with the Gupta family. He gets invited to all manner of Gupta festivities, from weddings and cricket matches to frequent, and reportedly sumptuous, curries. He sees nothing wrong in this private interest of his. Perhaps he misses Schabir Shaik and treats the Guptas as surrogates for the man who was sentenced to 15 years in jail for corrupting him. Perhaps not.
The Guptas landing a jet at a military airbase does not strike him as presenting a risk of conflict of interest after they fly away untouched by the long arm of the law. The fact that Duduzane works for the Guptas, who spend an inordinate amount of time with employees of state-owned enterprises and aspirant Cabinet ministers, is wrongly regarded as the expression of freedom of association instead of the unmanageable conflict conundrum it poses.
A conflict of interest arises when the aims of two parties are incompatible. The aim of the president ought to be to uphold his oath of office. The aim of the Guptas is to profit in their business activities. Treating the Guptas as some form of “royal game” is incompatible with the duty to uphold the right of everyone to equality before the law. Allowing the Guptas to get away with under-declaring their income to SARS and protecting them against investigation of this malfeasance (yes, tax evasion is still a crime), is a conflict situation — as is the dilly-dallying over getting on with appointing a commission of inquiry into state capture, allegedly by the Guptas.
Indeed, the president is so conflicted by his friendship with the Guptas, and his son’s involvement in their business activities, that he is unable to act by appointing the necessary commission into state capture. This should be done by the deputy president, who is required under Section 90 of the Constitution to act when the president is unable to act.
However, as the Guptas are likely to be interrogated about, inter alia, their alleged attempt to bribe then-deputy finance minister Mcebisi Jonas with a R600m pay-off that would have given them the keys to the Treasury, be assured that nothing will happen anytime soon on this front. Instead, convoluted and unnecessary litigation will wend its way tortuously through the courts and reach finality either shortly before or shortly after the lights go out all over the country.
The only good news to come out of the publication of Duduzane Zuma’s letter is that Gordhan is seeking legal advice on it. Acting in a conflict of interest situation is at the very least unethical — it can also be illegal. Transactions that are concluded in conflict situations may be voidable in law.
Whichever way one looks at it, the letter to Gordhan is defamatory in a manner that could give rise to substantial damages. Here’s hoping that Gordhan is advised to take the matter of his defamation sufficiently seriously to interdict its repetition (and the threats made in it) as well as to claim damages flowing from the wide publication of the defamatory matter.
• Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt. He has not had any curry at the Saxonwold shebeen.
Article published in Bdlive on 13 September 2017