“Imminent arrest” of Pravin Gordhan and undermining of legality

There has been a flurry of denials since the Sunday Times broke the story that Pravin Gordhan, the minister of finance, faced “imminent arrest” on charges of “espionage” associated with an alleged intelligence unit in the South African Revenue Service. The Presidency called the report mischief making, but did not specifically deny that an investigation was underway. The head of the National Prosecuting Authority (NPA), Shaun Abrahams, attacked the report’s veracity but went on to confirm there was an investigation and that he had been handed a docket by the Hawks, which he had returned to them with guidance.

He said it was premature to suggest there was a charge against anyone or to name individuals who could potentially be charged. He would not confirm or deny that Minister Gordhan could be charged. In other words, the head of the NPA confirmed that there is an investigation though he offered no clarity on the character or the target. If Gordhan was not a potential target it would have been wise and easy to say so.

According to legal experts, there is no such crime as “espionage” in South Africa. If there were any irregularities in what others named in the investigation have done, these were trivial, not criminal. It therefore appears that there is an intention to destabilise Mr Gordhan in his capacity as Finance Minister without having good legal grounds for acting against him. It is known that President Jacob Zuma is unhappy about having Gordhan in that position and it is speculated that law enforcement agencies may be undertaking these exercises to please him.

At this moment, there is a substantial number of former heads of state entities who have been suspended or dismissed or who have taken packages under duress. This was a factor before the rise of Jacob Zuma, too, but what makes it different now is that most of those who have been squeezed out had been tasked with acting against corruption or monitoring the award of state contracts for evidence of patronage. Many have crossed paths with relatives and friends of the President and in some cases, acted in a manner affecting the potential liability of the President.

In addition, there is direct intervention by the President to undermine efforts of the Treasury, and the Minister of Finance in particular. Where Gordhan has moved to regularise tender processes at SAA, whose chair also runs the Jacob Zuma Foundation, the President appears intent on moving oversight of the ailing airline from Treasury to the Presidency. Gordhan’s intention to replace the SAA board appears also to have been blocked by the President to retain his close associate Ms Dudu Myeni, as chairperson. She is seen by many as the main problem in the way of cleaning up business at SAA and making the airline sustainable.

Those who have been suspended or have resigned under duress include senior management of the NPA, Hawks, IPID, Denel and SARS. In the case of SARS, five senior managers have resigned or been removed. Extensive restructuring by SARS Commissioner Tom Moyane has followed in defiance of Gordhan’s authority.

A substantial number of state-owned entities are under pressure to deliver contracts to friends or associates of the President. This, in relation to a contract with a company linked to the Gupta family, without the required permission of the Treasury and the Department of Public Enterprises, appears to be the basis for the removal of the CEO of Denel.

This turbulence is bad for the functioning of state entities, the economy, the value of the rand and the overall stability in the country. But those who create this havoc appear impervious to the consequences.

It appears that the President has never been unduly worried by the knock that the economy has taken since the replacement of former Finance Minister Nhlanhla Nene by Des van Rooyen in December, creating huge losses. He has never been reconciled to the appointment of Gordhan and has not only undermined his work, but continues to sing the praises of Van Rooyen as the best qualified minister of finance the country has ever had.

This all happens in the wake of the Constitutional Court findings that the President and the National Assembly acted in conflict with obligations under the Constitution. It seems open to doubt whether the President does in fact intend complying with repayments in accordance with the Public Protector’s report and as ordered by the court

All this comes at a time when the North Gauteng High Court has reinstated 783 charges of fraud, racketeering and money laundering against Zuma. The court findings oblige the NPA to prosecute Zuma unless they appeal the judgment. It may well be appealed, though being a full-bench decision that is carefully reasoned, it is unlikely to be overturned. An appeal will just be further wasteful expenditure, as in other cases that the NPA has lost. It seems unlikely that the NPA can, legally, avoid instituting such prosecution sooner or later. But given the relationship between Zuma and legality and those who enforce the law, one cannot be sure that the law will be complied with, as was seen in the various cases ordering the hand over of the “spy tapes”.

The contempt for legality needs to be properly evaluated. Law and abiding by law is not always morally obligatory. There were strong justifications for those who infringed apartheid law and this bred a wider disrespect for legality, policing and various law enforcement mechanisms.

The breaches of legality by Zuma and his underlings cannot be dismissed with a knee-jerk response of similar disrespect, that force will meet with force and illegal state actions with illegal responses. The rule of law in South Africa is not well established. But achieving constitutionalism was a historical gain, most beneficial to oppressed people, those who bore the brunt of arbitrary harassment and arrest under laws affecting the black population alone.

The law under apartheid embodied oppression. The law after 1994, at least as it is written down in the Constitution, guarantees inclusion and protection and also an injunction to address social and economic transformation to reduce inequality.

It is these gains that are under attack from the ANC in government. Though it is the organisation most responsible for inaugurating the gains, the ANC has substantially ceded its democratic ethos and legacies to the unlimited demands of President Zuma and his close associates.

There seem to be no limits to the demands the President will make for his own enrichment. And there is no clear distinction between what belongs to him and what is state property, what is legally permissible and what he does.

The ANC once claimed moral legitimacy for its actions, with many having sacrificed greatly to set the country free of apartheid. That morality is no longer associated with the organisation. There are those who have always been cynical about the ANC and any claim that it may have made to morality in the past or now.

What is striking about the present is that very many of those who are troubled are not the cynics, but those who have always seen the ANC as their home. Some of these were in the ANC in exile or underground or in the allied UDF.

But very many are ordinary people who grew up associating the ANC with their dreams of freedom. It should be remembered that the ANC has always been more than a political organisation. It has a cultural presence in people’s lives and many families considered themselves ANC members even if they had not taken out membership cards. This is exemplified by Wilton Mkwayi, who served 26 years in prison, when he recalled how his father posted him an ANC membership card when he was at school. Families used to pray for those imprisoned and the organisation had a presence in many places, even in the darkest hours of repression.

What they now confront is an organisation with a leader who is not merely immoral, but impervious to morality. He is amoral. For us, as citizens, the lawlessness already shows signs of increasing an already high level of disrespect for legality. This increases dangers to all of us as human beings as well as to the integrity of institutions of our society

There is a radical breach of trust between the leadership of the country and the population. It will not be easy and will require a broad civic effort from a range of sectors of society, and a significant political realignment, to restore that.

Raymond Suttner is a scholar and political analyst. Much of his life was spent in the struggle against apartheid and in building the new democratic order. He served lengthy periods as a political prisoner and under house arrest. Currently he is a professor attached to Rhodes University and UNISA and he has authored or co-authored Inside Apartheid’s Prison (2001), 30 Years of the Freedom Charter (1986) 50 Years of the Freedom Charter (2006), The ANC Underground (2008) and most recently Recovering Democracy in South Africa (Jacana and Lynne Rienner, 2015). He blogs at raymondsuttner.com and his twitter handle is @raymondsuttner

[This article first appeared on Creamer Media’s website: polity.org.za]