By: Paul Ngobeni and Clyde Ramalaine
South Africans are not letting President Ramaphosa off the hook, they rightly continue demanding answers to the many questions the Arthur Fraser case as opened against Ramaphosa contains. Ramaphosa’s initial responses presented more questions and his subsequent silence has a nation gripped in frustration with a leader who seeks to be treated differently to others. We are told the Hawks have taken over the investigation. We also know the now suspended public protector Advocate Busisiwe Mkhwebane in the week of sending her very important set of 31 questions to the president was suspended.
Despite concerted efforts from a dwindling crossbreed of Ramaphosa backers that straddle mainstream media, the usual Zuma-obsessed foundations [FUL, AKF, Helen Suzman, CASAC, NMF], attention-seeking clergy, hired academics, and not forgetting the questionable judges like Zac Yacoob, the tale of Phala-Phala crimes simply won’t go away. Not even the orchestrated breaking news of Gupta arrests in UAE could defocus South Africans from insisting they are answered by Ramaphosa. What is undeniable is that the Ramaphosa-aligned ANC politicians have gone silent.
Also read: No, Cyril, you unfortunately can’t have your cake and eat it
They are silent or they do what Minister of Finance Enoch Godongwana dared to do last week. In a spirited defence of Ramaphosa, Godongwana asserted: “He [Ramaphosa] has cooperated with authorities. He is the one president who made himself available whenever he was asked to do so. He appeared before the Zondo commission that probed the July riots.” Until now we hear Godongwana defending his boss in frames of a comparison to another president he fails to mention. Yet we are not ignorant that he is referring to President Zuma without stating the latter’s name. Clearly, Godongwana is living in a world of factionalism, and such blinds him to acknowledge that the appearance of Ramaphosa before Zondo was not unique since Zuma from 2005 has been in courts submitting himself to the processes of law. In fact, Godwongwana’s sophism of uniquely availing himself is palpable when South Africans know that Zuma on two occasions appeared before Zondo. In the last instance, he raised his discomfort with an implicated DCJ who flaunted the processes of judicial commissions when he decided to depose an affidavit while he presided in chairing the Commission. Just to debunk the factional rant of Godwongana.
However, what is of greater concern in Godongwana’s statement is what he said next: “The charge [case opened by Fraser] is intended for him to step aside so that he’s unavailable for the conference. This is done by people who want to win the conference.” Enoch Godongwana. In normal times the idiotic, obsequious, groveling, and brown-nosing utterances of the disgraced Finance Minister Godongwana on the unfolding Phala-Phala farmgate scandal would be dismissed for what they are. When confronted with the most serious allegations of constitutional violations and possibly criminal conduct by President Former, Godongwana has invoked the most dastardly tactic of blaming Arthur Fraser’s criminal complaint against President Cyril Ramaphosa as part of an attempt to block Ramaphosa from securing a second term at the ANC’s national elective conference in December this year. Not overburdened by any sense of shame, Godongwana claims that the criminal case opened by Fraser is intended for “Ramaphosa] to step aside so that he’s unavailable for conference…This is done by people who want to win the conference.” For him all that matters is Ramaphosa’s second term victory –the constitutional and laws of this country be damned!
Lest we forget, Enoch [not the biblical one that walked with God and was there no more] Godongwana, and the self-appointed moralist Mcebisi Jonas were the subject of a corruption investigation by the Judge Pillay Commission which produced a Report dated 1 June 2007 and titled Report of The Commission of Inquiry into the Finances of the Eastern Cape established in terms of Provincial Gazette Extraordinary (E.C) Notice No 2 of 2005, 8 April 2005 as amended. Suffice to say that the Report detailed evidence of financial impropriety, malfeasance, and fraudulent conduct on the part of Gondongwana and his accomplices in certain instances their family members. In 2007, Godongwana took a hyper-technical legal challenge and argued that the Report was delivered after the deadline for its submission had expired. Then as he does now, he avoided dealing with the unassailable evidence. Accordingly, it should come as no surprise that Godongwana has attempted the same juvenile tricks by arguing that calls for Ramaphosa to step aside, while law enforcement authorities investigated the matter, “were premature because Ramaphosa had not been formally charged.” He claims: “The policy of the ANC is that only a person who is charged steps aide. The president has not been charged…We can’t have a rule for the president and a different rule for others.” This is utterly idiotic – by constitutional design, the president has a higher constitutionally sourced obligation that dictates a different rule for his conduct. Accordingly, Godongwana’s self-serving and opportunistic flip-flopping will not work for Ramaphosa who is both the president of the ANC and South Africa. A complaint of money laundering, kidnapping, and corruption, coupled with evidence of constitutional violations and misuse of state resources at Ramaphosa’s private game farm are sufficiently serious to warrant an urgent call for an investigation and possible impeachment of the president.
Regarding the ANC step-aside policy, it was Ramaphosa who distorted the policy by calling for those implicated in corruption to be immediately suspended from office and for the party to distance itself from them. He expected this to occur even where the accusations and reports are woven entirely from untested hearsay, the gossamer strands of speculation and surmise emanating from one’s political enemies. In Ramaphosa’s view, to address corruption in the ANC means implementing without delay the resolutions of the 54th National Conference on dealing with corruption, including that:
- Every cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.
- People who fail to give an acceptable explanation or voluntarily step down while they face disciplinary, investigative, or prosecutorial procedures should be summarily suspended.
- The ANC should publicly disassociate itself from anyone, whether a business donor, supporter or member, accused of corruption or reported to be involved in corruption.
Godongwana’s malodorous attempt to sing for his supper by defending the same Ramaphosa who championed the step-aside policy is exposed as rank dishonesty by a man who is no stranger to corruption and financial improprieties. Legal analysts have consistently warned that Ramaphosa’s reformulation of the ANC’s step-aside policy impermissibly set the bar very low and runs counter to the letter and spirit of the ANC constitution. In Ramaphosa’s view, the principle of presumption of innocence until proven guilty is thrown out of the window because every “cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.” In his faction-driven approach, the quality of the information, accusation, or report implicating a cadre in corrupt practices does not matter. Even victims of politically inspired fake news or political hatchet jobs will be required to “account” to the “Integrity Commission immediately or face disciplinary processes.”
Under Rule 24.2 the “Officials and NEC may refer to the Integrity Commission any unethical or immoral conduct by a member which brings or could bring of has the potential to bring or as a consequence thereof brings the ANC into disrepute.” Clearly, is it unrealistic to expect the same obsequious and corrupt members of the NEC to refer the Phala-Phala scandal to the Integrity Commission? But Ramaphosa turned Rule 24.2 upside down by claiming that a “cadre accused of, or reported to be involved in, corrupt practices must account to the Integrity Commission immediately or face disciplinary processes.” He must fall now on his own sword and taste the medicine he prescribed for others- the duty to account is triggered by a mere accusation or report of corrupt practices from any quarter or source no matter how unreliable. There is no rule that the duty to account is triggered only where the member has been “formally charged.”
Also read: Cyril Ramaphosa’s actions expose moral bankruptcy of ANC
Godongwana’s complete indifference to President Ramaphosa’s constitutional violations in his capacity as president of the Republic should also not come as a surprise. Our Constitutional Court spoke eloquently about the role and tasks of the President of the Republic when it said that, among others:
“The President is the Head of State and Head of the National Executive. His is indeed the highest calling to the highest office in the land…As the Head of State and the Head of the National Executive, the President is uniquely positioned, empowered, and resourced to do much more than what other public office-bearers can do…
Had the brown-nosing Godongwana heeded this admonition, he would have realized that Ramaphosa owes the country true leadership and not the current rehearsed, evasive, elusive rhetoric hiding behind vague slogans of “due process” and presumption of innocence. The Phala-Phala scandal involving money laundering, kidnapping, and corruption, coupled with evidence of constitutional violations and misuse of state resources at Ramaphosa’s private game farm are sufficiently serious to warrant an urgent call for an investigation and possible impeachment of the president.
Further, the Constitutional Court stated that the President “is, after all, the image of South Africa and the first to remember at its mention on any global platform…” In the midst of the global efforts to combat the corruption epidemic, a president who is mired in money laundering, kidnapping, and corruption, allegations coupled with evidence of constitutional violations and misuse of state resources is simply unfit to be the image of any country on any global platform. Of course, this will not trouble Godongwana who has no sense of shame left.
The self-serving myopic Godongwana believes that all of the president’s constitutional obligations can be subordinated to the factional ANC political contests. He is unfortunately wrong. Again the Constitutional Court stated: “He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project…The President is a constitutional being. In the Constitution, the President exists, moves, and has his being. Virtually all his obligations are constitutional in nature because they have their origin, in some way, in the Constitution…”
Ramaphosa’s alleged conduct falls woefully short of the constitutional obligation to uphold, defend and respect the Constitution. Ramaphosa has already confessed to attendees at the ANC Limpopo provincial conference that he moonlights as “a farmer” that buys and sells animals for profit. That is a clear violation of Sect. 96(2) of the Constitution which states that the president, his cabinet and deputy ministers may not: “(a) undertake any other paid work; (b) act in any way that is inconsistent with their oath of office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”. Engaging in the business of farming for profit while at the same time serving as President is clearly a violation of the Constitution.
The Concourt further sketched out the weighty constitutional responsibilities of the president by stating: “Unsurprisingly, the nation pins its hopes on him to steer the country in the right direction and accelerate our journey towards a peaceful, just, and prosperous destination that all other progress-driven nations strive towards on a daily basis…
Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed.” This weighty constitutional responsibility does not require that the president must first be charged as a suspect in criminal prosecution. In addition, the alleged misuse of state resources for his personal benefits runs counter to what the Concourt admonished in the Nkandla judgment. The Concourt stated:
“The President has the duty to ensure that State resources are used only for the advancement of State interests. On the other hand, there is the real risk of him closing an eye to possible wastage if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of Section 96 (of the Constitution), all that needs to be proven is a risk. It does not even have to materialise…The President is expected to endure graciously and admirably and fulfil all obligations imposed on him, however unpleasant.
As the Concourt saw it, the overriding duty of the president is to ensure that ”that the Constitution is known, treated and related to, as the supreme law of the Republic…He is required to (discharge his responsibilities) with all his strength, all his talents and to the best of his knowledge and abilities.” Godongwana’s incoherent and hot-air rhetoric about “due process” and lack of “criminal charges” shows just how ignorant he is of the business of governance in a modern constitutional state.
We must also debunk a pernicious myth propagated by some self-styled lawyers who are Ramaphosa’s sycophants – they have loudly protested that Ramaphosa had no duty to report the crime to the police as it occurred on his private farm and supposedly harmed no one other than his pecuniary interests. By his own admission, there was “a robbery” which presumably had victims who had independent constitutional rights that could not be compromised in the manner he did. Our courts have repeatedly pronounced on the legal duty of the police. The State has a positive constitutional duty, imposed by sect 7 of the Constitution, to act in protection of the rights in the Bill of Rights. Accordingly, the police have a non-delegable duty, once they witness or are informed of a crime, to act in the interest of protecting the rights of victims, regardless of whether the victim formally files a complaint or not. As the Court stated in S v Williams and Others 1998 (2) SACR 191 (SCA), ‘Although mere failure to report the crime to the authorities would not render a member of the public guilty of being an accessory after the fact of that crime … a police officer is in a different position as it is his legal duty to bring criminals to book.’ It was unlawful for the President to instruct Rhoode to ignore his obligations as a sworn police officer to report the crime and to bring the criminals to book.
Also read: SA President Ramaphosa’s criminal case and Mantashe’s glaring conflation of party and state matters
Another question is whether the President’s instructions to Rhoode caused him to violate the Prevention and Combatting of Corrupt Activities Act, Act12 of 2004 (“PRECCA”) which makes it mandatory to report certain actual or suspected crimes. Section 34(2) of the Act provides that any person (eg any public officer in the Senior Management Service of a public body) who fails to report such corrupt activities or theft is guilty of an offence. The statute requires any person who holds a position of authority (as defined in section 34(4) of PRECCA), who knows or ought reasonably to have known or suspected that any other person has committed an offence (of corruption) in terms of sections 3 to 16 or 20 to 21 of PRECCA or theft, fraud, extortion, forgery or uttering of a forged document involving an amount of R100 000 (hundred thousand rands) or more, must report such knowledge or suspicion or cause such knowledge or suspicion to be reported to Directorate for Priority Crime Investigation (DPCI also known as the HAWKS). Section 34(2) of PRECCA provides that any person who fails to report such corrupt activities or theft is guilty of a criminal offence (with a potential custodial sentence). As amended by the South African Police Service Amendment Act, 2012 (Act 10 of 2012), reporting must be made to a police official in the DPCI in terms of Section 34(1) of the PRECCA. This begs the question, did Ramaphosa deliberately seek to mislead the public by claiming “robbery” occurred knowing that PRECCA requires reporting of “theft” but not specifically robbery? A corollary question is whether Ramaphosa caused Rhoode to run afoul of PRECCA and whether Ramaphosa is guilty of aiding and abetting Rhoode’s criminal violation of PRECCA? This statute may explain the underlying motive for Ramaphosa’s feigned confusion about the facts of whether simple theft or “robbery” occurred on his farm. What is known is that at Ramaphosa’s instructions, Rhoode enlisted the support of and utilized other police officers in carrying out acts of vigilantism, including kidnapping, assault, torture, unlawful restraint, and defeating the ends of justice. Vast amounts of state resources were used in the process to advance the private pecuniary interests of farmer Ramaphosa.
So Godwongwana, with this convoluted statement furthermore as political head of both SARB and SARS institutions directly linked to lead investigations against Ramaphosa in the instance of FICA rules on permitted cash in possession of an individual and foreign currency rules compromises the efforts of such to arrive at objective conclusions. Godongwana with this thoughtless comment and moment of political sunlight places tremendous pressure on the institutions he presides over by misdirecting their work into his political oncoming traffic. We must ask what the implications of this irresponsible statement hold for someone who is the Minister of Finance. One who serves as political head of critical institutions such as SARB and SARS. Is he seeking to abuse his position to tell them this is a political case that has no judicial merits? Is he repurposing the investigations for his narrow self-serving factional political interest? We do not know but the stench of cheap self-interest as Ramaphosa coattail-rider has settled on his garments and South Africa witnessed the ordeal.
