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Twenty-five years into democracy, it sadly appears that save for the courts and the possible resurrection of SARS, the constitutional promise seems to have to await much longer, writes Serjeant at the Bar.
The South African Constitution was designed
to create a culture of accountability, transparency and integrity in government.
On its own the text of the Constitution was not going to lift the country into
democracy. Thus it was to be hoped that the values outlined above would be
absorbed into our political practice and, if not, key institutions other than
the courts, being SARS, the NPA and the Public Protector would be on standby to
ensure that there would be compliance with these values.
Twenty-five years into democracy and, sadly,
core constitutional principles are still adhered to as much in the breach as in the
compliance. Take the recent controversy about the list of political parties of
their candidates for national or provincial assemblies. Across the political
divide there are people on these lists who have been publicly accused of
serious acts of corruption, or other breaches of the criminal law.
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It must be accepted that none of these
allegations have been tested in court and thus subjected to the rigors of
examination and cross examination. But is it a defence to argue "innocent
until proved guilty"?
In a society which treasures fundamental
constitutional values, the public are entitled to demand that, in the event
that there is a dark cloud hanging over a candidate which is sourced in
plausible evidence (albeit untested), he or she should surely have their name
cleared before standing as a public representative. The bar to entry cannot be
set so low that it is negotiated by the claim, "innocent until proved
The expression that Caesar's wife is above
suspicion is surely a more appropriate standard.
Regrettably, political morality has lagged behind
the promises of the Constitution; hence the need to turn to the key
institutions. As the report of the Nugent commission made clear, SARS suffered
devastating degradation over the past few years.
Two significant consequences flowed
therefrom: the consistent tax shortfalls meant that taxes like VAT had to be
increased pacing increased pressure on the poor and the decreased revenue
collection meant that expenditure which was vitally needed for the
transformation of the country could not be incurred. Secondly, tax evasion
increased, greater exploitation of gaps in customs took place and many who
benefitted from state corruption paid little, if any tax on their ill-gotten
The appointment this week of Edward
Kieswetter as the new commissioner of SARS holds out hope that this vital
institution can be changed to make it again the formidable organisation it was
under the leadership of Pravin Gordhan. Only those who fear the consequences of
an efficient SARS will complain and they should be concerned. Since the time of
Al Capone an independent tax collection agency has constituted the mechanism by
which those involved in criminal activity have been caught.
SARS may therefore be the best bet outside
of the courts to restore accountability and integrity into public life. Sadly,
there is still little sign of independent life in the NPA or, for that matter,
the Hawks. True, the new NPA head Shamila Batohi has only been in office for
two months. But the scale of capture of the NPA, the lack of adequate forensic
investigative capacity, let alone lawyers who will prosecute successfully by
besting some of the finest from the South African Bar who will appear for the
alleged crooks, leads to a gloomy forecast.
At the very least Batohi could have taken
an anxious public into her confidence and let it know what progress, if any,
there has been on the litany of compelling evidence of corruption, racketeering,
fraud and vanilla fraud that has been in the public domain ever since the lid
was lifted on the Guptas and their activities.
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An equally challenging problem lies with
the public protector, advocate Busisiwe Mkhwebane and her office. Since she
took office there have been a number of applications to set aside her
recommendations. (At present there appear to be at least 21 applications for
In her truly ill-fated report about the
ABSA lifeboat and her recommendation to review the mandate of the South African
Reserve Bank (SARB), the Gauteng High Court ruled that she was personally liable
to pay 15% of the costs incurred by SARB. Although we still await the outcome
of her appeal to the Constitutional Court which was argued in November 2018,
the fact that a court could make such an order was indicative of the High Court's
view that the [ublic protector had conducted herself in a completely
Undeterred and notwithstanding her
complaint about a lack of resources given to her office, the public protector
has taken out her legal microwave oven and warmed up an old complaint that the
nation had thought had been put to bed – the payout to ex deputy SARS commissioner
Making this decision even more curious is
that the new complaint upon which the public protector has now acted took place
more than two years ago. That means the complaint has expired unless the public
protector in her discretion considers that there are special circumstances
which justify the investigation.
Given the resource constraints and the
pressing need to deal with all manner of serious maladministration and
corruption, the public is entitled to be curious as to what special
circumstances the public protector considers exist to justify this
Twenty-five years into democracy, it sadly
appears that save for the courts and the possible resurrection of SARS, the
constitutional promise seems to have to await much longer.
- Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.Disclaimer: News24 encourages freedom of speech and the expression of diverse views. The views of columnists published on News24 are therefore their own and do not necessarily represent the views of News24.
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