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It’s time for the ANC to pay back the money from Bosasa

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Paul Hoffman SC is a director of Accountability Now.

The third tranche of the Zondo Commission’s report shows that corrupt activity by individuals in high political office has spilt over to the ANC as a whole. It is time for the ANC to pay back to the state the ‘gratifications’ it received from Bosasa, and for its assets to be seized as security for the repayment of its ill-gotten donations.

The demand, “Pay back the money!” was made famous by the EFF in Parliament at the time the enhancements to the Nkandla property, occupied by the Zuma clan, came under official scrutiny when the ill-gotten gains of former president Jacob Zuma were under consideration. Eventually, the courts did order him to pay back the money, or at least part of it.

Now the time has come for the ANC to pay back the donations in cash and in kind that it accepted from Bosasa.

The corrupt activity of individuals in high political office has, according to the third tranche of the Report of the Zondo Commission of Inquiry into State Capture, spilt over to the ANC as a whole. 

The party has, over the years, accepted a great deal of largesse from the Bosasa organisation in the form of donations in cash and in kind. Election-time “war rooms” were set up by Bosasa for the ANC; volunteers were paid by Bosasa; IT, food, transport and other services were donated by Bosasa, both in cash and in kind.

All this largesse was possible because, over the years, Bosasa was paid at least R2.37-billion by the state in terms of palpably and admittedly crooked tenders that are all invalid and must be set aside. To keep the flow of “successful” tendering going, Bosasa polished its marble with ANC notables like Zuma, Dudu Myeni, Gwede Mantashe (then secretary-general of the ANC) Nomvula Mokonyane, Vincent Smith, Cedric Frolich and others. 

A full list of those who must be criminally investigated for their dealings with and through Bosasa is thoughtfully supplied by Daily Maverick’s Rebecca Davis here.

The ANC is not on the list, but it should be. President Ramaphosa conceded during evidence at the Zondo Commission that the ANC had been remiss in accepting tainted donations in cash and in kind from the crooked Bosasa operators.

Here is how the report summarises his position:

“1811. President Ramaphosa also appropriately conceded that it is difficult to avoid the conclusion on the facts that the ANC received this [war room] and other forms of assistance from Bosasa in breach of the rule that it would not knowingly receive donations from donors involved in criminal activities and while key ANC officials, including the President of the time, must have been aware of the serious allegations of corruption against Bosasa.”

While it may or may not be so that the actions of the ANC itself fall outside the remit of the Zondo Commission, the facts have emerged, the concessions have been made and the law must take its course against the ANC, whether by way of civil proceedings, criminal prosecutions or both.

The traditional Stalingrad strategies will be deployed via judicial reviews and appeals, but in the end, the facts are plain — the ANC has been living off the proceeds of crime for years. 

The oft-repeated opposition party allegation that the ANC is no more than a criminal syndicate has an added ring of truth, now that the Zondo Commission report is in the public domain and the horrible details are available for public consumption.

The ANC’s unfortunate funding habit antedates the capture of the ANC by Bosasa. In the 1999 election campaign, the funding for the ANC came from bribes in the arms deals, according to former ANC MP Andrew Feinstein. 

The crooked Hitachi Power Africa deal with Eskom, for which Hitachi was obliged to pay a huge fine in the US, has, according to the research of Prof William Gumede, netted the ANC about R3-billion. 

In this scheme of things, the tainted relationship between the ANC and Bosasa is relatively small potatoes. However, the stench of corruption has to be cleared from the air around Luthuli House if constitutional democracy under the rule of law is to survive in SA.

The onus is on the opposition to institute civil proceedings against the ANC to compel the state to recover the loot on which it has lived so well, for so long. 

It is unlikely that the Treasury or the National Prosecuting Authority will have much appetite for the necessary litigation — the confusion/elision of party and state will be likely to keep them motionless and less than enthusiastic. 

Litigating the entitlement of the public to recovery of the funds abused by the ANC could lead to the dissolution of the ANC, the realignment of politics in SA, or quite possibly the long-awaited split between the mutually incompatible RET faction and the rest of the ANC.

The opposition can only gain from any of these scenarios.

Justice Raymond Zondo has already pointed out that an army of prosecutors will be needed to deal with the recommendations of the Zondo Commission. The moves in the direction of mustering that army are not propitious. According to media reports, Justice Minister Ronald Lamola is on a fundraising campaign for the NPA because the state coffers are empty. He reportedly said:

“… The ‘sacrosanct’ independence [of the NPA] could not be compromised by donor funding.” 

“Enhancing the capacity and skills of the NPA to effectively prosecute corruption is a national priority. The nature and extent of alleged corruption described in the Zondo reports highlights the need for bold and innovative approaches to enhancing the capacity and skills of criminal justice entities, including the NPA. These are complex crimes that require sophisticated responses,” the minister said. 

“Of the R1.1bn allocated, 68% will be used to enhance the NPA’s anti-corruption capacity, with the National Prosecution Authority getting 700 aspirant prosecutors, the Asset Forfeiture Unit 17 senior state advocates, the Office of Witness Protection 12 protectors and the Investigating Directorate 91 investigators and prosecutors.”

These numbers are utterly underwhelming. 

The 700 aspirant prosecutors will take many more years than SA has available to be trained to the point where their skills can be used to counter endemic serious corruption.  

The additional staff for the AFU and ID, if competent personnel can be found, is still a fraction of the size of the Scorpions who had 536 staff members (of a planned 2,000) at the time of their dissolution. 

Adding only 120 specialists to the hollowed-out and saboteur-riddled NPA team is an exercise in futility. Whether purposely or inadvertently, it is designed to delay or permanently defer the mounting of the prosecutions needed and, with them, the recovery of the loot of State Capture which, by some estimates, runs to R1.5-trillion.

At a time when the ANC is having difficulty covering its running expenses, it is imperative that its assets be seized as security for the repayment of its ill-gotten donations, whether in cash or in kind.

Elections in SA are meant to be free and fair. They cannot be fair while the ANC is allowed its illegal fundraising methods which amount to criminal patronage or unbridled kleptocracy. They have not been fair since 1999. 

No other political party has ever dared to use state funds in its campaigns, other than those officially allocated.

The procurement of goods and services by the state in SA is meant to be effected in a manner that complies with Section 217 of the Constitution: “… in accordance with a system which is fair, equitable, transparent, competitive and cost-effective.”

Each of these five criteria has been honoured in the breach by the methods resorted to by Bosasa in its dealings with the state. The Bosasa criminal enterprise flourished under the protection of former president Zuma and those in cahoots with him, both inside and outside the ANC. 

The ANC benefited, illegally so, to the detriment of multi-party democracy under the rule of law.

It is time for the ANC to pay back to the state the “gratifications” it has received from Bosasa.

It is also high time for the state to protect our brave and necessary whistle-blowers, reform the criminal justice administration and forbid the pernicious practice of cadre deployment that has been a major cause of the State Capture phenomenon in SA. 

The necessary legislative reforms were suggested by Accountability Now last August. They have been ignored by officialdom, Cabinet and Parliament. DM

 

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  • As I said in response to the person lodging appeals for the review of Independent Candidates legislation, why would ‘parties’ especially those constituted to operate as a gang to protect “their’ perceived turf, consider that or your ‘accountability’ initiatives ? It would mean the end of their lording over the ‘turf’! Unlike their most recent mentor Putin (and his predecessors), who has strategically applied its oil and gas wealth to militarise the state with his cleverly disguised strategy of raking in huge profits by making Europe almost totally dependent on him for energy, with a plethora of oligarchs to support him. Yet in the minds of most its impoverished citizens, he is considered a genius (as does Trump)! Don’t we have a similar situation here ? What is that saying – TOGETHER ..WE CAN DO MORE …. err CORRUPTION ? Who would have thought that during the Madiba/Tutu era, this is what we would become – I certainly did not see it coming !

  • Paul, I respect your opinion hugely but, to even think that the people that we’re dealing with have any inkling of responsibility, then we know we’re living in cloud cuckoo land.

  • “There are crimes that become innocent and even glorious through their splendour (sic) number and excess” Banksy

  • In addition to the actual corrupt individuals named in the report, how many knew about it in the ANC, and for how long?

  • How is it that the Rev. Alan Boesak, is convicted for personal use of donor funds and is sent to jail for stealing from the poor, yet these politicians and crooks remain at their posts and will probably never see a jail cell? Am I colluding with them by paying my taxes? Just asking!

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