South Africa


The Bad Guys are Winning

A file picture dated 04 November 2016 shows South African National Director of Public Prosecutions (NDPP) Advocate Shaun Abrahams as he reacts during a briefing to the Portfolio Committee on Justice and Correctional Services in Parliament, Cape Town, South Africa. EPA/NIC BOTHMA

This is what happens when the government systematically desecrates the rule of law. It’s now time to get serious about the lasting perversions of the Zuma years.

If anyone was hoping for further evidence of how thoroughly the state’s capacity was gutted under the Zuma regime, a visit to Bloemfontein on Monday would have proved revelatory. In the Free State High Court—a province once presided over by warlord Ace Magashule, who now serves as Secretary-General of the African National Congress — Judge Philip Loubser ruled that the Asset Forfeiture Unit should release R250 million of Gupta-linked assets allegedly ill-gotten during the Estina Dairy Scam.

And just like that, a quarter-of-a-billion rand of taxpayers’ largesse could be off to Dubai in a puff of smoke.

As media reports in this publication, and others, have made clear, there was something obviously rotten with Estina. It has been agonisingly spelled out how money earmarked for local farmers was siphoned off and laundered by the Guptas and the likes of KPMG. But Judge Loubser could only play the cards he was dealt, and the National Prosecuting Authority are notoriously lousy dealers. This is not the first time they’ve flubbed this particular case. Terrifyingly, it may not be the last.

In order to uphold the forfeiture, Judge Loubser insisted that:

There must be reasonable grounds for believing that the defendant may be convicted, that the court may find that the defendant benefited from the unlawful activities, and that the court may therefore make the exercise of a confiscation order.”

In other words, the judge did not believe that the Guptas were likely to face a conviction on these matters.

That’s an incredibly bad deal for South Africa, which is hardly the world’s justice capital. At the end of the apartheid era, the outgoing regime and the government-in-waiting cut a deal, the reasons for which were complex and multifarious. But the upshot was that only two people did time for the innumerable crimes committed during the bad old days. Despite the spirit of forgiveness that pervaded during the Truth and Reconciliation Commission hearings, this decision left a fathomless hole in the core of South African society. After all, justice is the concept that underpins the social contract between a government and its people. The calculus is simple: no justice, no society.

This is not to compare what unfolded under the Zuma regime with apartheid. Instead, let’s be specific: the Zupta phenomenon was characterised by a singular contempt for the rule of law; an attempt to steal state coffers bare (mission pretty much accomplished); and a low-boil of violence perpetrated against the most vulnerable members of society (i.e. the Life Esidimeni debacle, in which at least 144 mentally ill patients died due to the negligence of officials). In any reasonable society, those who committed these crimes should face the fullest extent of the law. That has yet to happen, and the absence of consequences threatens the viability of our democracy.

Zuma and his supporters within and without the ANC made sure that they were above the law by employing two important strategies. The first is the classic way to game any politically independent legal system: money. The state forked over huge amounts of cash in order to back Zuma and his cronies in court, which allowed them access to every dilatory tactic known to the legal profession. So ingrained has this move become that Tom Moyane, the former head of SARS, recently whined about having to pay his own legal fees given that he was the one who collected tax revenue in the first place.

This nuclear-tipped chutzpah is now a hallmark of the ruling class and their cronies. But more dangerous still is the fact that Zuma meticulously and successfully degraded almost every single state institution of any importance. This could not be more clear than it is with the Estina matter, where the National Prosecuting Authority, purged almost entirely of talent, simple does not have the capacity to make a case.

The National Director of Public Prosecutions, the spectacularly useless Shaun Abrahams, was obviously a Zuma loyalist. What’s less obvious is how pervasively the rot moves throughout the NPA. And through the police and the Hawks, who are supposed to hand over to the prosecutors solid investigations, to say nothing of some of the Chapter 9 institutions designed to hold the corrupt accountable (here’s looking at you, Public Protector-ish type person).

South Africans are not being realistic about the scale of the challenge facing President Cyril Ramaphosa and his team, and that’s assuming they’re as serious about meting out justice as they say they are. Ramaphosa is moving slowly because he hopes to save the ANC from a ruction. But there will be no ANC if there’s no country left for it to govern. The revamping of the NPA is now of vital importance to the future of South Africa, as is re-establishing the independence of the Hawks. (The agency’s newly appointed head, Advocate Godfrey Lebeya, while perfectly competent, cannot be expected to do his job without help from every possible corner.)

The Guptas are getting away. So are their associates, enablers and beneficiaries. So could Jacob Zuma. And corruption is of course not restricted to the public sector – it is mimicked in the private sector, to the detriment of the South African economy and the investors who prop it up.

Impunity. Corruption. Zero accountability – this is the South African way. The bad guys are winning. Ramaphosa and the ANC’s good cop/good cop act is wearing thin. Time for bad cop/bad cop. DM


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