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Malema is not a victim of the state apparatus

25 September 2012, 12:10

I have noted with awe unsubstantiated allegations by some in our country that expelled ANCYL president, Julius Sello Malema, is a victim of a state-orchestrated witch hunt. There has been a sporadic, and yet not deliberate, campaign to portray Malema as an unsuspecting victim of, rather than responsible for, his current troubles with the authorities. Malema, like the other accused in this Hawks’ investigation, must answer to the allegations and prove their innocence, if any.

A year ago I visited a friend at Grootvlei Prison near Bloemfontein. He was awaiting trial on allegations of defrauding one of the four big banks. I requested him to gather strength. I told him that if he is found guilty, he must serve his term and prepare to come back a changed man. The court found him guilty and sentenced him to six months behind bars. He served his term and returned a better man. My friend now is now a successful painter.

Malema, and the others who are charged alongside him, must follow this colourful example of my friend. They are all presumed innocent until proven otherwise by a court of law. And we all have a collective responsibility to allow the authorities to conduct their constitutional mandates with peace.

There are three possible outcomes of the case against Malema in particular. Firstly, the accused may be found not guilty on the charges.  Secondly, the case may be thrown out of court on grounds of no evidence, or poor investigation by the NPA. Or, thirdly, Malema may be found guilty and sentenced to a specific time in jail or given a fine.

Ours is an independent judiciary. Though not perfectly independent, our courts are immune from influence from other arms of the state. So, if the first scenario is the case, the case would be struck off the roll without hesitation. If the courts find that the prosecutors have a weak case, and that they were apathetic in executing their functions, the case will be history. Malema and others can then look at the possibility of opening cases against the state or anyone who wasted their time and, in the process, defamed their characters.   

In the second scenario, the defence has a responsibility to prove foul play, non-adherence to the Criminal Procedure Act, or possible interference. Hard evidence, rather than sentimental remarks, is needed to prove the above phenomena. For example, in order for Malema to prove interference, or that the case is politically motivated, he must submit evidence of a clear instruction from either the executive or the legislative arm of the state to the police to “either falsely or maliciously manipulate an individual case for political interests.”

In the third scenario, the court could find all the accused guilty beyond reasonable doubt and issue sentences accordingly. These may include fines, jail time, etc., depending on the nature of the offence. These all depend on the weight of the evidence brought by both sides.

In addition to the charges brought by the Hawks, two other institutions have made adverse findings on Malema’s business dealings. The Public Protector, an independent body established in terms of Chapter nine of the Constitution, finds in a report that Malema had improperly benefited to the tune of R2m from the “unlawful, fraudulent and improper conduct of On-Point”. The report of the Public Protector recommends that the state recovers these monies from Malema.

The Public Protector finds that Malema had benefited through his Ratanang Family Trust, while his former business partner and On-Point CEO, Lesiba Gwangwa, had also benefited through his family trust (Gwangwa Family Trust). The report further suggests that the Ratanang and Gwangwa family trusts were “nothing more than vehicles created to launder money.”

In another unrelated investigation, revenue collector South African Revenue Services (SARS) has obtained a R16-million judgment against Malema for “unpaid taxes”. Established in terms of the South African Revenue Service Act, SARS is mandated to, amongst others, collect all revenues that are due on behalf of government. SARS charges taxes on individuals against some form of income. So, if Malema owes the state so many millions of Rands, how much income did he make in that period? Was his salary enough tantamount to such a huge tax bill? I really wonder.

The above scenarios make it clear that Malema must answer some serious questions to all South Africans, through properly constructed structures, like the independent courts. Firstly, where did Malema get the millions which he did not declare, or pay tax against? Secondly, how did Malema get these millions of Rands? Did he use his political influence to unlawfully channel public money into his pocket? What role did Malema play in the financial, and otherwise, collapse of Limpopo province? Surely these are genuine questions. They cannot be mistaken for victimization of Malema by the state. If Malema has the answers, he is given a wonderful opportunity to provide such to the people of South Africa. But, in the absence of factual explanations to the above, Malema must, like all other South Africans, face the consequences of his actions.

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