Shortly after being appointed as premier of Mpumalanga in 1999, Ndaweni Mahlangu caused a stir when he said that it was acceptable for politicians to lie to the public, especially when they were frustrated by the intricacies of power. He also said it was acceptable for such lying politicians to serve in the highest office in the country. Mahlangu was not speaking about President Jacob Zuma, but one would be forgiven for thinking that he knew something about our future that the rest of us did not.
Normally it is not a criminal offence for a politician to lie. As Mahlangu understood all too well, if every politician were thrown in jail for lying to the public, we would hardly have any public representatives walking free. Mitt Romney, for one, would be in serious legal trouble, given his rather adventurous relationship with the truth. Many South Africans politicians of the major political parties would be in a similar boat.
But in exceptional circumstances, a politician can be found guilty of fraud for lying to Parliament. Fraud is committed when a person makes an intentional and unlawful misrepresentation to the actual or potential detriment of other individuals or institutions. When the misrepresentation is in the form of an omission, the law also requires additionally that the misrepresentation should have been made under circumstances where there was a duty on the fraudster to disclose the information.
City Press reported on Sunday that they could find no proof that a bond had been registered over President Zuma’s Nkandla homestead, as the president claimed in parliament last week. If there is indeed no bond registered over Nkandla and if President Zuma therefore lied to Parliament, the question is whether he is guilty of a criminal offence.
Zuma’s property, titled portion 27 of reserve 19 of farm number 15 839, Nkandla, is situated on land owned by the Ingonyama Trust, headed by King Goodwill Zwelithini. Previous building work at Nkandla was financed by “benefactors” as well as by a bribe solicited by Schabir Shaik from an arms deal company on Zuma’s behalf.
An emotional Zuma told Parliament on Thursday: “I took the decision to expand my home and I built my home with more rondavels, more than once. And I fenced my home. And I engaged the bank and I’m still paying a bond on my first phase of my home.” Neither Zuma nor his prolific spin doctor, Mac Maharaj has so far clarified the situation or provided any explanation for the alleged lie told to Parliament.
The home is alleged to have been declared a National Key Point, but the police are refusing to provide evidence of this claim, raising doubts about whether Nkandla was indeed declared a National Key Point as alleged. As I pointed out last week, Zuma was not being truthful when he claimed that he and his family had paid for all the building at Nkandla. Several shady payments were made to builders to help pay for the original building work, while Schabir Shaik also solicited a bribe from an arms deal company to help pay for building work at Nkandla.
In 2005, Tony Yengeni was found guilty of defrauding Parliament after he lied about receiving a 47% discount on a Mercedes Benz 4×4 from individuals involved in the arms deal. (Why do so many of these stories start with the arms deal?) As Yengeni had a duty to disclose such benefits to Parliament, his failure to do so in a truthful and honest manner constituted fraud. He was carried shoulder-high into prison by fellow ANC leaders wishing to demonstrate their commitment to fraud and corruption.
But what about Zuma? If he lied to Parliament, could this expose him to criminal prosecution on grounds other than the fraud and corruption charges which were dropped for political reasons before the 2009 election? The answer to this question would hinge on two related issues.
First, one must ask if the law should view misrepresentations by the president to Parliament as unlawful. Our law considers some misrepresentations never to be unlawful. For example, if a married man tells his boyfriend that he plans to leave his wife while he has no such intentions, that misrepresentation is never going to be considered unlawful in our law. Neither would it be unlawful to tell a very ugly person that he is really beautiful or a really dimwitted person that he is clever. These misrepresentations are considered to be outside the scope of what the criminal law should busy itself with. But other misrepresentations are considered unlawful because in terms of the legal convictions of the community (a fiction used by judges to determine unlawfulness) it would be considered unacceptable.
I would think that a strong argument could be made that when a president lies to Parliament about his personal financial affairs, it should be considered unlawful. When misrepresentations are made in a formal institutional setting like Parliament by a public official in a situation where that is explicitly prohibited by the law, then the misrepresentation must surely be unlawful. To this end, one must note that section 2(3) of the Executive Members Ethics Code prohibits members of the Executive (which includes the President) from wilfully misleading the legislature to which they are accountable. The president is accountable to the National Assembly, so it is clear that where he willfully misleads the Assembly, he would be acting unlawfully.
Second, one will have to demonstrate that the misrepresentation has a real or potential detrimental effect on Parliament or on individual members of Parliament. In the Yengeni case the court found that members of Parliament as well as officials had a direct interest in Mr. Yengeni’s improper concealment of his fraudulent behaviour to Parliament and that the concealment and misrepresentations by Yengeni to Parliament was therefore detrimental to Parliament.
If President Zuma had lied to Parliament about the fact that the Nkandla upgrade was partly being financed by a bond, it would have a similar detrimental effect on Parliament. This is because President Zuma has a legal duty in terms of Section 6.4 of the Executive Members Ethics Code to declare any sponsorships or gifts as well as “[t]he nature and source of any other benefit of a material nature; and the value of that benefit” to Parliament.
Mr Vivian Reddy told the newspapers this week that he had lent Mr Zuma money to help build Nkandla. If this was done on preferential terms (or example, if no interest or low interest was charged on the loan) it would constitute a benefit of a material nature in terms of the Executive Ethics Code. Parliament has a direct interest in knowing whether President Zuma is paying for some of the Nkandla building works with the help of a bond or whether benefactors are assisting him to pay for the part of the cost not carried by the taxpayers. Misleading Parliament about it would have a serious detrimental effect on Parliament as an institution, not only because it would not be able to fulfil its oversight role properly but also because the status and credibility of Parliament would have been affected.
(As an aside, it must be noted that if Mr Reddy or anyone else gave President Zuma a loan on preferential terms, or a donation of any kind to help pay for the Nkandla upgrades, that would have to be declared in terms of the Executive Members Ethics Code.)
In any event, if President Zuma intentionally misled Parliament by claiming that he had taken out a bond to pay for some of the building work at Nkandla, when no such bond was ever registered, I would guess that President Zuma could be found guilty of fraud — on much the same basis as Tony Yengeni was found guilty of defrauding Parliament.
Of course, we all know that both the police and the National Prosecuting Authority will never investigate or prosecute President Zuma for allegedly defrauding Parliament. This is because President Zuma has thoroughly politicised these institutions and he is now protected from investigation and prosecution. The fact that I can be so certain about this says much about the manner in which state institutions have been hollowed out to protect certain people in South Africa. DM
Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
Some firing squads are all issued with blank cartridges with the exception of one person. This helps alleviate personal responsibility for the execution squad.