Public institutions remain at the core of state capture rot

Hands-on: Former ANC president Oliver Tambo, who would have celebrated his 100th birthday last week, stood for accountable government — but the rot of corruption has tainted his legacy (Alexander Joe/AFP)

Hands-on: Former ANC president Oliver Tambo, who would have celebrated his 100th birthday last week, stood for accountable government — but the rot of corruption has tainted his legacy (Alexander Joe/AFP)

In the week in which the country celebrated the 100th anniversary of the birth of Oliver Reginald Tambo, the man who steered the ANC from a movement almost broken by the savagery of the apartheid regime in the early 1960s to being a recognised government-in-waiting, a headline in a Sunday newspaper screamed “Gangster Republic”.

An advocate opposing the application brought by the president to set aside the public protector’s remedial action to deal with state capture told a court last week that the running of South Africa’s state had been “outsourced”. Leave aside all the fancy references to trite legal principle — the use of the phrase “outsourcing the state to gangsters” most eloquently captures the persistent and increasingly disturbing allegations that must be addressed — and not at the dawn of a new era but now.

Tambo stood for accountable government that would create a society in which 55-million South Africans would not simply enjoy a vote every five years but also a life based on substantive dignity. In Tambo’s anniversary week, Minister of Finance Malusi Gigaba had the courage to tell the nation that it was, in effect, bankrupt.
The budget deficit has increased by a further R50-billion and the growth rate will not even reach 2% in the next three years. Forget about free tertiary education, expanded and better-quality free healthcare, for it will not happen in the near future unless the SA Titanic does a 180˚ turn in record time.

The magnitude of the problem is breathtaking, as is the cancer that has riddled most key public institutions, with the notable exception of the judiciary. Two developments this past week highlighted the institutional problem.

Last week, the German business systems firm SAP announced that it had voluntarily informed the United States justice department that it had paid bribes to a Gupta-linked company to secure contracts with Transnet and Eskom, those two jewels in the corrupt crown of the state. Doubtless this belated acknowledgment of its role in the theft of the birthright of 55-million South Africans was designed to soften the blow that will be administered by the US justice department, which, even in the context of Trumpism, is not run by sheep but rather by lawyers who will prosecute without fear or favour.

The corrupt practices of SAP had been news in South Africa for some time before the company’s acknowledgement, but our authorities have yet to muster even a legal peep in response. The national director of public prosecutions and head of the National Prosecuting Authority (NPA), Shaun Abrahams, is fond of claiming that he is reliant on the Hawks to obtain the information necessary to proceed with a prosecution — but that is not reflective of the entire picture.

The National Prosecuting Authority Act gives the NPA powers to appoint an investigative director to conduct an investigation where there is reason to suspect that a crime has been committed. True, the appointment is subject to procedural requirements, but they are hardly insurmountable.

The very least the public should demand from an NPA funded by the taxpayer is that a proper investigation takes place, although, in the light of the SAP confession, the charges to be brought against the recipients of the SAP bribe should hardly induce legal sweat from an NPA committed to its legal mandate.

The second development concerns the publication of a new book by investigative journalist Jacques Pauw, The President’s Keepers: Those Keeping Zuma in Power and out of Prison (Tafelberg). In it, Pauw describes various incidents of tax evasion on the part of the president and those close to him. Of particular interest is the role of the South African Revenue Service (Sars), which Pauw suggests differs markedly from how it was at the time of the appointment of Tom Moyane as commissioner.

It is important to emphasise that this narrative of Sars and the president remains in the realm of allegation. It will be interesting, however, to see whether any of those implicated sue on the grounds of defamation. Nonetheless, the allegations are surely sufficiently serious to raise further concerns about an important public institution.

The remedial action given by the previous public protector, Thuli Madonsela, in the state capture report, was a judicial commission of inquiry into the issue, with the responsibility for the appointment of the supervising judge being given to Chief Justice Mogoeng Mogoeng. The legal merits thereof are being decided by the high court in Gauteng. Leaving these aside until judgment is delivered, it must be said that the political and economic imperative surely indicates that Madonsela’s was a sensible approach. Even so, however, the scale of the problems as alleged are so vast that South Africa may not have time to wait for a commission of inquiry, which would need, if it has any legitimacy, to probe not only the role of the Guptas and other elements of both the public and private sectors but also key institutions such as the NPA, the Hawks and Sars.

The 55-million citizens for whom the ANC of Tambo, Nelson Mandela and Walter Sisulu represented the political mechanism to ensure a truly better life for all are entitled to the truth. There are obvious prosecutions that must take place, as is manifest from the SAP confession.

But there is also the need to ensure that all key public institutions are given a clean bill of health. All this is probably dependent mainly on political developments, notwithstanding the important role that could be played by an independent commission with wide powers.

Serjeant at the Bar

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