ANALYSIS

Removing Moyane – a first step in restoring a credible state

By Stephen Grootes 7 May 2018

SARS Commissioner Tom Moyane during the budget lock up in parliament on 21 February 2018 shortly before Finance Minister Malusi Gigaba's maiden Budget Speech. Photo by Leila Dougan

Over the weekend more details finally emerged of President Cyril Ramaphosa’s plans to remove Tom Moyane from the position of SARS Commissioner. Moyane has already been suspended, but by all accounts is refusing to leave quietly. Difficult to believe, Moyane obviously wants a fight. Based on what we now know, he is going to get one. But this is just one step on the pilgrimage that could turn out to be the path to a much more capable, credible state.

While President Cyril Ramaphosa obviously wants to get rid of the officials who were appointed by former president Jacob Zuma and who were of varying degrees of incompetence and corrupt intent, his ultimate goal is something much more complicated: building a state that can deliver properly, can hold people accountable, and would not be susceptible to another Zuma-type existential attack in the future.

One has to wonder what drives Moyane’s thinking; his back is flat to the wall. The recent history of our politics has shown that when the president wants you out of your office, in the end, the president will win. Zuma was able to do it time and time again, even when he often had a weak case and suspicious motives.

This time around, the case against Moyane is incredibly strong he surely stands no chance. It’s not just that he weakened SARS by removing some of its top people, and it’s not just that he did this to help Zuma. It’s also that he allowed Jonas Makwakwa to stay on when it was obvious he was not fit and proper to be the de facto second-in-command of the institution. And that’s before one considers Moyane’s role in giving the Guptas tax rebates ahead of schedule, at a time when refunds due to other companies and individuals were being withheld, allegedly to massage the revenue numbers.

In other words, there is plenty of material in public domain already to get Moyane. In a situation like this, one needs an advocate who is not just an excellent lawyer, but also excellent on the political front.

Step forward, interestingly, Advocate Dali Mpofu SC, a fascinating development. Mpofu can argue that under what advocates call the “cab rank rule” (where any advocate has to take a brief from any client, to ensure that everyone gets representation of equal quality or “equal arms” before the law) he has no choice. If Moyane wants him, and he is available, he has to take the brief. Of course, it’s unlikely that a gun was put to his head to force him to take it. But it is going to put him in an interesting spot, in that the political party he is the chair of, the EFF, had called for Moyane’s head many times before he was suspended. Once again, in our politics, we are asked to live in a multidimensional universe, where someone chairs a party calling for someone’s head while representing them in a legal process, presumably helping the very same head remain solidly in its place.

Then there is the person who will chair this, Judge Kate O’Regan. You’re unlikely to find a better person. She has been apolitical since being appointed to the Constitutional Court all those years ago. Since her retirement from the court, she has been working at the Supreme Court in Namibia, and so has obviously kept her hand in. In other words, it will be difficult for anyone to raise any issues against her, and she obviously has the seniority for the job.

All of that said, it is clear that this will not be the quick and easy win that Ramaphosa would have wanted. Even so, Moyane must be delusional if he thinks he would win, and even if he does, so what? There are always other ways to get someone out of a position, if you happen to be the president.

However, this really must be seen as just one of many distinct processes that Ramaphosa will have to take to deal with in the mess that he inherited in government. It became pretty obvious over the years that Zuma didn’t care much, or at all, about governance or the economy, but was actively interested in the security cluster. Hence the dangerous mess at the SAPS, especially Crime Intelligence, State Security, and the National Prosecuting Authority, compared to the ordinary but terrifyingly expensive mess everywhere else.

Wrapped together, all these problems present a gigantic Gordian Knot that cannot be just cut or untangled. Righting the institutions will be an almost impossible task – adding the costly legal processes, and likely political pressure within the ANC, will render the entire task a gargantuan one. Understanding that, it will be better for Ramaphosa to conduct the process carefully, and on a case-by-case basis. Otherwise, if lumped together, the negative forces of the past might just be too strong. Taken out one by one, they constitute a far more palatable threat.

Under such circumstances, the grand press conferences where the president stands up and announces a long list of suspensions are unlikely. To do that would result in claims of “triumphalism” by his enemies in the ANC. The legal and political challenges would see the entire generation of corrupt and incompetent self-compact and become difficult to defeat.

While this slower and more deliberate process will beyond doubt be frustrating to those calling for swift action, it is by far the most strategic of them all. Does anyone these days remember Zuma’s refusing to resign for a while before succumbing? You get the picture. The ultimate prize is the one worth waiting for.

One of the interesting aspects of many of our institutions during the Zuma years was the fight that they put up. It became pretty obvious what, and why, Zuma was doing at certain moments, and why people were being forced out. This meant that when a person was being forced out, there was huge media attention, questions were asked in Parliament, and the opposition to Zuma in the ANC knew what was going in. When Ivan Pillay was first suspended as Deputy SARS Commissioner by Moyane, it was obvious what the real agenda was. This allowed other parts of society to get involved in the fight against Zuma. The ultimate expression of this was probably the public reaction to the removal of Pravin Gordhan as finance minister. Suddenly people who had never protested in their lives were out in the streets.

This time around, Ramaphosa is going to try to get corrupt and incompetent people out, but also in full public view, with clear reasons for his actions. Those constituencies who rallied to protect these institutions may well rally in support of Ramaphosa as well. Apart from Moyane’s legal team, it’s hard to see who is going to publicly support him in this fight (apart of course from those who receive subsidies from Saxonwold). There will be complaints about a hostile media environment but it seems unlikely any political constituencies will back him at all.

It is obvious that the big prize for Ramaphosa in this process will be the NPA. It appears that he is waiting for a ruling from the Constitutional Court that could render the appointment of Advocate Shaun Abrahams invalid, which would mean Ramaphosa has a free hand with the appointment but without having to spend any political capital on removing him. That would be the easy way. The harder way would involve having to suspend Abrahams and then setting up an inquiry, which would make a recommendation. That would take a long time, and end up costing a fortune, in money and in time wasted on a leaderless institution.

Either way, it will be the end of Abrahams, whose reputation is surely beyond salvation now.

Once Ramaphosa is able to make his own appointment there, and he surely one day will, the process of clearing out Zuma’s appointments will gather speed. The stick that he will carry will be much more powerful; just being charged could be a reason to suspend someone from their office in the first place.

This overall is a process that is going to take a few years. Ramaphosa may only be able to move with real speed and confidence if he wins a comfortable mandate of his own as leader of the ANC in the 2019 elections. However, over time, his real goal must also be to ensure that our institutions are insulated against the kind of political interference that got us here in the first place. First and foremost this means appointing capable and strong leaders to these institutions, who have no questions over their integrity. Then the people who are appointed underneath them have to be the same kind of person, who can be nurtured to one day take over those institutions. At the same time, we may need more examples of public rectitude. In other words, it starts with appointing a police chief who faces no questions. That police chief appoints deputy commissioners who have integrity. Which in turn filters down to the police officer on the side of the road who doesn’t for a second contemplate asking for “cool drink money” when pulling people over.

This kind of change of culture is going to take many years. The culture of corruption that we appear to have now did not happen overnight – it started happening long before Zuma assumed office. To change it could take even longer, with significant risks along the road to that situation. People who make money corruptly now will not just roll over. They will organise themselves and push back, they will try to keep their own people in positions of power, and possibly even try to overthrow leaders who want to clean things up.

In all of this, transparency is going to be key. These battles will have to happen in public, so that everyone is aware of what is happening. Voters now seem to be paying more attention to bad governance than they were in the past. That would give politicians of all kinds the best possible reason to ensure that they are on the right side of this struggle. DM

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