Despite their obvious differences, Christo Wiese, Qedani Mahlangu, Markus Jooste, Brian Hlongwa and many other dodgy South Africans have something in common. Their defenders often argue that we are not permitted to criticise or judge them because, for some or other reason, it would be premature or impermissible to do so. Opportunistic attempts to stifle discussion about the catastrophic ethical failings of individuals are dressed up as principled respect for procedures or for the imaginary rights of morally dubious individuals. We should have none of it.
Last week investigative unit amaBhungane reported that tax advisers at law firm ENSafrica “created an aggressive tax structure” to try and help Tullow Oil to evade taxes. Now SARS is pursuing tycoon Christo Wiese (a former ENSafrica executive), and two other people personally for R217-million, as part of a R3.7-billion tax claim based on Tullow’s “restructuring”. (Wiese also used to chair the board of Steinhoff, who is being investigated for fraud after it was revealed that the company lied about its finances.)
Some defenders of ENSafrica and Wiese have argued that this was a case of tax avoidance and therefore arguably not a criminal offence. If it was not a criminal offence (or if Wiese or ENSafrica have not been convicted of a criminal offence regarding the evasion/avoidance of tax), so the argument goes, we cannot criticise them or say that they did anything wrong.
Tax “evasion” is a criminal offence as opposed to tax “avoidance”, which is sometimes allowed and sometimes not. I am not an expert in tax matters, so I can’t say whether this was a case of tax avoidance or tax evasion (although I would take any claim by a taxpayer that she was legitimately avoiding and not evading tax with a pinch of salt).
Whether you committed tax evasion or tax avoidance (and whether the state could prove beyond reasonable doubt that it was tax evasion or not) will be crucial for the implicated company or person as it could mean the difference between being found guilty of a crime and sent to prison, on the one hand, and escaping any criminal sanction, on the other.
I don’t buy this argument. It is – to use a phrase so beloved by IFP leader Mangosuthu Buthelezi – absolute poppycock.
Most of us ordinary folk pay our taxes without trying to cheat the system. We do so, first because we are legally required to do so, second, because it is ethically the right thing to do and, third, we do not have money to pay fancy lawyers to arrange for us to pay less than our fair share in taxes. Every single South African pays VAT, so even if you are unemployed you pay taxes. Some are lucky enough to have a job and pay personal income tax too. In return the government of the day provides basic services for the benefit of all (although, admittedly, the government also wastes some of this money and some of it disappears into the pockets of unscrupulous crooks).
Those of us who are privileged, pay a larger share of our income on taxes exactly because we are privileged and because living in a society with obscene inequality is ethically untenable (although, for those of us who are privileged – unlike for those who have very little – it is seldom unbearable). The progressive tax system which requires the rich to pay a larger percentage of their income on taxes is one of the few mechanisms in a capitalist system aimed at redistributing wealth. Paying your fair share of taxes is therefore a modest contribution to building social solidarity in society and, I contend, is an unqualified moral good.
When a big law firm concocts an “aggressive” tax scheme to help a large corporation or an obscenely wealthy tycoon (whether it is Christo Wiese or anyone else) to avoid paying their fair share of taxes, I find this unconscionable. From an ethical perspective, whether the scheme tips over into criminal tax evasion or “merely” constitutes impermissible tax avoidance is neither here nor there. Helping the rich to pay less tax than they are required to pay in terms of the law is immoral. End of story, as far as I am concerned.
Those who defend ENSafrica and those involved in the tax avoidance/evasion scheme do not want us to discuss the morality of using your wealth to avoid paying your fair share in taxes. They want to protect the rich from being criticised for not paying their fair share. It is exactly to try and silence critics and avoid any discussion of the unethical behaviour of those involved that they argue that this may not have been a crime (or alternatively, that those implicated have not yet been found guilty of a crime).
Once again, I have one word for this: poppycock.
This does not mean that I do not respect the law and the legal right to a fair trial that everyone enjoys. I am not arguing that any person should be held criminally liable and incarcerated without a fair trial and due process.
(Of course, having said this, I am well-aware of the potentially unjust aspects of our criminal justice system. Rich people and other politically connected people are often not prosecuted. If they are, they have money – or receive money from the state – to pay the best lawyers to defend them. Poor people do not have enjoy this protection. This means that procedural safeguards will disproportionately benefit the rich and powerful.)
Be that as it may, those of us who criticise ENSafrica and those involved in the tax avoidance/evasion scheme do not demand that everyone implicated in the scheme should immediately be sent to prison without the benefit of a fair trial in which the accused are presumed innocent by the presiding officer until the state had proven the case against them beyond reasonable doubt.
But we know that we do not need a court to tell us whether we think what they had done is immoral and inexcusable.
Which brings me to Qedani Mahlangu, who served as the Gauteng MEC for Health when 144 mentally ill patients died under her watch.
On Monday it emerged that the Gauteng ANC had re-elected Mahlangu to its Provincial Executive Committee (PEC). In response to the outcry that followed, some people have defended her by saying she has not (yet) been convicted of any crime. Others have said that the Gauteng ANC has elected her and we need to respect the democratic process. Others have said that the party’s integrity committee is still dealing with the issue and should be given “space” to do its work.
You already know what my response is to these arguments: poppycock.
What her defenders are trying to do is to silence her critics. They are in effect saying that citizens are not permitted to form ethical judgements, to use their intellect and their humanity to conclude (as any human being with even a modicum of humanity would do) that what she did was wrong, because others (delegates to the Gauteng ANC conference, the ANC integrity committee, a criminal court) will think and feel and decide on our behalf (but only when the time is right – and the time is never right).
It reflects a profoundly arrogant and patronising attitude towards ordinary people and our ability to make ethical judgements and choices. In this view, ordinary citizens cannot be trusted to think for ourselves and make ethical judgements about the wisdom of Mahlangu putting her name forward for a position on the PEC and about the wisdom of those ANC members who voted her back into the PEC.
Her defenders also ignore the known facts, which are not contested. It is not contested because former Deputy Chief justice Dikgang Moseneke chaired an arbitration hearing where the truth came tumbling out. Moseneke described the arbitrary mass discharge of patients and the care received by patients as “torture”. In his remarks on Mahlangu‚ Moseneke said:
“Ms Mahlangu‚ too‚ denied she was administratively responsible for the mass death and torture related to the Marathon Project. She said she knew nothing. In my view she took political responsibility for the horrid failing in the department she was in charge of. On all accounts she was at the helm of the Marathon project. She was the ultimate leader and commander of the project. As the ultimate leader of the project and member of the executive council‚ she failed to explain why she allowed so many lives of defenceless mental healthcare users to be placed at risk for no good reason.”
In my view, the decision of ANC delegates to elect Mahlangu to the ANC Gauteng PEC is morally outrageous. I can form this view – after familiarising myself with the facts – without having to wait for a criminal conviction or a decision by the ANC integrity committee to decide on my behalf what is morally right and what is morally wrong.
It is also neither here nor there that a large number of ANC delegates at the provincial conference held a different view. Their moral blindness does not bind the rest of us and does not require us to remain silence. Respect for democratic processes does not require anyone to refrain from criticising the moral choices made by those involved in a democratic process. In fact, it is a prerequisite for the proper functioning of a democracy that everyone in society is able to criticise the democratic choices made by others without fear of being silenced by bogus arguments about a respect for processes.
Of course, not everyone in South Africa will always agree about what is right and what is wrong. The way to deal with such disagreements is not to end debate about them by invoking bogus processes and rights. Instead, we should engage in substantive arguments about why we believe the specific actions of an individual are morally reprehensible or not. DM
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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.
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