Let the law prevail: The Guptas and the intention to corrupt
- Greg Nicolson
- South Africa
- 17 Mar 2016 10:59 (South Africa)
Since Deputy Finance Minister Mcebisi Jonas confirmed reports that the Gupta family offered him the job of finance minister, both the DA and Cope have laid corruption charges against the family. Experts say the cases have merit, even if Jonas didn't accept the offer. By GREG NICOLSON.
On Thursday, Democratic Alliance (DA) leader Mmusi Maimane opened a corruption case against the Gupta family and the president's son Duduzane Zuma in Cape Town.
“These revelations of undue executive influence by the Guptas amount to a prima facie case of corruption under the Prevention and Combating of Corrupt Activities Act,” he said. The Congress of the People (Cope) did the same in Pretoria.
The criminal charges come after Deputy Finance Minister Mcebisi Jonas on Wednesday confirmed the Gupta family last year offered him the position of finance minister to replace Nhlanhla Nene, which he rejected. Reports claim Duduzane Zuma set up the meeting and was present. Jonas said the offer “makes a mockery of our democracy”. He didn't mention the alleged strings attached to the offer, but The Sunday Times reported that Jonas was asked to push for the approval of the nuclear procurement programme and fire certain Treasury officials.
Former ANC MP Vytjie Mentor insists the Gupta family offered her the post of public enterprises minister, provided she cancel the South African Airways route to India and give it to them. Former Public Enterprises Minister Barbara Hogan, who was minister when Mentor says she was offered the job, told Radio 702 on Thursday she was heavily pressured to meet with Jet Airways, the Gupta-linked company that flew guests to Waterkloof Air Base for Vega Gupta's wedding in 2013. “We have not understood as the ANC, properly, what are the boundaries between government and politics,” said Hogan. “I was always aware while I was minister that there were forces behind my back.”
So, should the Guptas, or the Zumas, be charged with corruption?
The 2004 Prevention and Combating of Corrupt Activities Act defines a person guilty of the offence of corruption as any person who, directly or indirectly:
- Accepts or agrees or offers to accept any gratification from any other person, whether for the benefit of himself or herself or for the benefit of another person; or
- Gives or agrees or offers to give to any other person any gratification, whether for the benefit of that other person or for the benefit of another person, in order to act, personally or by influencing another person so to act, in a manner that amounts to the illegal, dishonest, unauthorised, incomplete, or biased; or misuse or selling of information or material acquired in the course of the exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation;
- That amounts to: the abuse of a position of authority; a breach of trust; or designed to achieve an unjustified result; or that amounts to any other unauthorised or improper inducement to do or not to do anything, is guilty of the offence of corruption.
In a note for Werksmans Attorneys on the Protection and Combating of Corrupt Activities Act, crime and forensics specialist Dave Loxton described who is guilty of an offence.
“The underlying principle is that guilt will be determined by intention. The test is a subjective one which takes into account all surrounding circumstances, the particular conduct of the parties, and any other relevant information to decide the intention,” he said. “The fact that the corrupt activity was unsuccessful is not relevant. It is sufficient that there is merely a threatened infringement of an interest.”
It's irrelevant whether the recipient of the gratification can do what they're asked or not, Loxton wrote.
Advocate James Grant, who has a PhD in criminal law, on Thursday said three provisions of the Act could apply. There's the general offence of corruption, offences relating to public officials and offences relating to members of legislative authority, all carrying heavy penalties.
“In corruption, if you don't succeed you still commit the act of corruption. It's not just an attempt at corruption,” he said, looking at the case against the Gupta family.
It also doesn't matter whether someone was acting on explicit authority, or offering to extend their authority to someone else. Subject to ordinary requirements, such as fault and unlawfulness, and the lack of details available, there's a chance the Guptas could be guilty of either the general offence or the other two, which carry more serious penalties, said Grant.
Corruption Watch executive director David Lewis said his understanding of the law is that the Guptas might have committed an offence.
“Even if a corrupt proposition that is made is rejected, the mere offer is enough to constitute criminality,” he said on Thursday. While Lewis believes the family and Duduzane Zuma may claim they never had the authority to offer Cabinet posts, they appear to have acted as agents for the president and if it's true they offered jobs for favourable policies, they should be charged, he said.
“Basically, a public official is being made to make a decision for private benefit. Slam dunk,” said Lewis.
In a blog post on Thursday, UCT Claude Leon Foundation Chair in Constitutional Governance Professor Pierre de Vos said a criminal offence is committed when an MP is offered a ministerial post in exchange for favours. If convicted it carries a minimum sentence of 15 years. Referencing the Protection and Combating of Corrupt Activities Act, De Vos writes, “The Act does not require the person offered the benefit to have accepted it. All it requires is that the offer was made with the purpose of persuading the person offered the ministerial position. Neither does it require the person offered the benefit to have done what he or she was requested to do. The offer alone constitutes a criminal offence. This means even where an MP was offered a ministerial and declined the offer, the persons offering the post are guilty of corruption.”
If allegations against the Gupta family are true, they would be guilty of a crime. Duduzane Zuma could also be charged as well as President Jacob Zuma for causing the offer to be made, said De Vos.
Jonas could also be in trouble. Grant explained that under section 34 of the Act there's an obligation to report corruption, but it's difficult to know whether he might be guilty of an offence. Regarding Jonas, and the other MPs who may not have reported the offers they claim to have received from the family, it amounts to what they did at the time, and if they didn't report it, whether they have a justified excuse or were acting as any other reasonable person might.
So will anything come of the criminal charges against the Guptas and Duduzane Zuma? Such crimes are handled by the Directorate for Priority Crime Investigation –the Hawks – currently criticised for allegedly involving itself in political battles and run by Major-General Mthandazo Berning Ntlemeza.
“The manner in which General Ntlemeza has used his position as head of the Hawks to intimidate the minister of finance (perceived to be in the faction that opposes state capture by the Guptas) further suggests that it would be over-optimistic to expect that the general would act with integrity or that he will apply the law even-handedly,” writes De Vos.
The Gupta family have continued to deny the allegations against them and say they never offered any ministerial positions to the MPs. They say the allegations are a plot against them and President Zuma in the race towards the next ANC leadership conference. DM
Photo: The New Age Board Chairman Atul Gupta and President Jacob Zuma and the First Lady MaNtuli Zuma. President Jacob Zuma at the Bidvest Wanderers Stadium for the T20 match between South Africa and India. South Africa. 30/03/2012. (Presidency of South Africa)