Minister of Justice and Constitutional Development Thembi Simelane is having an inauspicious start to her tenure. With the state of the judiciary becoming an increasing cause for concern and with the minister taking up her position on the Judicial Service Commission in early October, Simelane has a lot on her plate. Unfortunately, however, she has become mired in controversy.
To recap briefly, last week Daily Maverick and News24 published an investigative report which alleged that Simelane used a “commercial loan” of R575,600 from Gundo Wealth Solutions owned by Ralliom Razwinane to purchase a coffee shop in Sandton.
Razwinane and Gundo also brokered investments on behalf of VBS Mutual Bank, and the Polokwane Municipality invested R349-million in the bank. When VBS was put under administration in March 2018, forensic investigations found it had rewarded Razwinane with kickbacks totalling R24.2-million for being a commissioning agent for various municipalities and state entities through corrupt transactions and contraventions of the Municipal Finance Management Act.
Razwinane is on trial for fraud, corruption and money laundering for his role as a commission agent connecting municipalities, including Polokwane Municipality, with VBS.
Simelane was the mayor of Polokwane between 2014 and 2021 and was appointed as justice minister in June. As minister of justice, Simelane oversees the National Prosecuting Authority (NPA), which is investigating and prosecuting those involved in the looting and collapse of VBS.
Read more: Ramaphosa calls meeting with justice minister to explain ‘loan’ from accused VBS investment broker
The minister has said the loan was a “commercial” one and was repaid, yet she has provided no further evidence of that.
Since the story broke, President Cyril Ramaphosa has asked her for a “detailed report”. That request was made on 28 August. Thus far there has been no further explanation to the public.
ANC Secretary-General Fikile Mbalula said on Monday that Simelane had given a full account to his office on the allegations.
He said, “I will report to the officials about what she said. Of course, besides that, we have checks and balances. She will go to the [ANC’s] Integrity Commission, having evaluated what she said to them and based on the facts before them, what would they advise.”
Mbalula said the minister had responded to a request from the President for a meeting. This seems to be a feeble and confusing attempt to reassure the public that Simelane was being held to account.
In a Q&A in the National Assembly last week, Simelane said, (after Deputy Minister Andries Nel fronted questions first), “Permit me to start by making a commitment to this House on my availability on my response, if any is needed, by the House, committee or Public Protector on [the] issue doing the rounds.”
No shortcuts
The minister seems to be missing a point here. It’s well and good to commit to being available to respond to questions, but in fact she has a legal and constitutional duty to do so. That is her solemn oath to the Constitution and the South African people on whose behalf she holds her position.
Mbalula and the President are missing the point too. This is not a private matter for discussion between the ANC secretary-general and the minister. Or, a private discussion with the President, for that matter.
That may well happen, but it is not the kernel of accountability the Constitution requires nor does it promote the founding constitutional values of transparency and openness in governance.
Section 92 of the Constitution says:
“Members of the Cabinet are accountable collectively and individually to Parliament for the exercise of their powers and the performance of their functions.
“(3) Members of the Cabinet must—
(a) act in accordance with the Constitution; and
(b) provide Parliament with full and regular reports concerning matters under their control.”
Sections 95 and 96 further state: “Before the Deputy President, Ministers and any Deputy Ministers begin to perform their functions, they must swear or affirm faithfulness to the Republic and obedience to the Constitution, in accordance with Schedule 2.”
Regarding the conduct of Cabinet members and deputy ministers, the Constitution says:
“96. (1) Members of the Cabinet and Deputy Ministers must act in accordance with a code of ethics prescribed by national legislation.
(2) Members of the Cabinet and Deputy Ministers may not—
(a) undertake any other paid work;
(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
(c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person.”
There can therefore be no shortcuts and it is not appropriate for the ANC to do what it is often wont to do: deal with matters internally. The credibility of the justice system is at stake if the minister is compromised.
The right to know
When these allegations first became public, Freedom Under Law, the Ahmed Kathrada Foundation, Defend our Democracy and Judges Matter released a statement calling on the minister to account fully for her actions in relation to the transaction.
It is crucial that Simelane be asked pertinent questions and that Parliament (and indeed the President) demand full and detailed answers. The public has the right to know what transpired, when and how. In addition, specific questions require detailed answers:
- What were the terms and conditions of the loan, including the rate of interest, terms of repayment and the date the loan was entered into? The latter is of particular importance to ascertain when the loan was entered into in relation to when the municipality deposited money into VBS bank.
- To this end, copies of the loan agreement and proof of settlement of the loan must be provided to the committee.
- When did the minister first become aware that the municipality had deposited funds into VBS bank?
- What steps did the minister take to satisfy herself as to the source of funds for the alleged loan?
- In the course of taking these steps, did the minister become aware that the loans were linked to money that the Polokwane Municipality had deposited into VBS bank, and what steps did she take to satisfy herself that there was compliance with the Municipal Finance Management Act?
- Does the minister now believe that it was appropriate for her to receive the loan, considering the links to VBS bank?
- The minister should respond to claims that Gundo Wealth Services was not (contrary to her initial response to journalists who broke the story) registered as a credit provider and therefore could not offer loan services.
- The minister should also respond to the allegation that there was a conflict of interest in her utilising the services of Gundo to secure the loan while Gundo claimed to be providing advice to the municipality.
- Finally, the minister should be asked to set out specific measures which are being implemented to ensure that there is no interference in the activities of law enforcement agencies over which she exercises political responsibility and which are investigating and prosecuting cases relating to the collapse of VBS bank.
The chairperson of the Portfolio Committee on Justice and Constitutional Development, Xola Nqola said: “The committee has noted with grave concern the serious allegations in media reports regarding an alleged loan to the minister. These types of allegations are damaging to the image that South Africa is trying to portray as a country ridding itself of any form of corruption.
“We therefore thought it prudent to call the minister speedily to a committee meeting where she can take Parliament and South Africans into [her] confidence regarding these allegations.”
It is crucial that any notion of compromise on the part of the new minister of justice is dispelled even as the matter has already taken longer than it ought.
Simelane holds too crucial a position to have a cloud of corruption hanging over her head. If she is found wanting, then the President needs to remove her from her position without delay. DM