Dakota Legoete writes that, while the charges against Ace Magashule seem serious, the charge sheet paints a dangerous picture which may well taint the integrity of our state institutions.
The great philosopher Plato once said: "The worst form of injustice is pretended justice."
Recently it seems that some in the media and our law enforcement agencies, among others, seem to be guilty of "pretended justice".
I am referring to the "you are guilty until proven innocent" narrative that has been building up over the past few weeks on most media platforms and by some in the law enforcement agencies and public representatives about charges of corruption against the secretary-general (SG) of the ANC - Ace Magashule. For those who are not as yet familiar with the story, it is alleged that during 2014 when the SG was Premier, he was involved in a corrupt tender for the replacement of asbestos roofs to the value of approximately R250 million.
In lieu of the above, let me state unequivocally, that I am not a spokesperson nor a spin doctor for Ace Magashule. Neither am I a proponent of any form of corruption or a corrupt order. I am of the view that the law must take its course, but equally that the constitutionally entrenched rights of the accused - such as "innocent until proven guilty" and the legal principle of ensuring ethical, procedural and substantive fairness- are adhered to at all times.
Unfortunately, the narrative that has been developing in the media wittingly or unwittingly, is that the SG when he was Premier directly and corruptly benefitted financially from the asbestos roofing contract, and secondly that this tender was part of a much broader state capture project. And while, on the face of it, the charges against the SG seem serious, with the charge sheet being an intimidating 58 pages, a perusal of the charge sheet paints a different and dangerous picture which may well taint the integrity of our state institutions.
There seems to be an element of both desperation and creative legal mischief bordering on the illogical and irrational to charge the SG using any means necessary and at all costs. Thus, the charge sheet in fact leaves the reader with a number of lingering questions about the motive behind charging the SG.
Firstly, the preamble to the charge sheet, which is 15 pages long, reads more like a copy and paste of any one of the plethora of Auditor-General's reports of most government departments and State-Owned Enterprises over the past two decades rather than a clear case of corruption. It seems that the legal and evidentiary foundation upon which the case is built relates to an irregular awarding of a contract and/or fruitless and/or wasteful and/or irregular expenditure which includes the accused service provider alleged failure to deliver on the requirements of the tender even though they got paid.
Secondly, nowhere in the charge sheet does the state allege that the SG, who was then Premier, was directly involved in the appointment of the service provider nor in the alleged irregular, fruitless and/or wasteful and/or irregular expenditure payment process of the contract and/or any corruption. In other words, there are no direct charges that states that the Premier gave the instructions to any officials or colluded with the accused officials to issue the contract to the accused service provider company or received any direct and undue benefit financial or otherwise.
Thirdly, it seems that instead the State is attempting to hold the Premier vicariously liable for alleged corruption and alleged fruitless, wasteful and irregular expenditure of some officials and the service providers.
Fourthly, there is no allegation that the Premier directly received any benefit financial or otherwise from this allegedly irregularly awarded contract. In fact the main charges against the SG is for alleged requests that he made (when he was Premier) to the service providers to procure approximately 200 tablets for poor students and to sponsor a youth visit to Cuba.
In other words, the SG in reality is being charged for an alleged "illegal donation" of approximately R1.2 million which was for the sole benefit of poor and disadvantaged youth and students.
In my historical experience and understanding of state craft, it is common practise for public representatives to appeal to the private sector, particularly those who have benefitted from state contracts, to donate money, equipment or services to poor communities, schools, civil society organisations and other charitable causes that the public representatives identify. This is an internationally recognised practice in both the developing and developed world. Thus, the only logical inference that the reasonable person can draw from this action by the state to charge the SG is that they are now creatively, maliciously and mischievously attempting to criminalise an international norm with the sole purpose of wanting to prosecute the SG.
Fifthly, this case is not new, as it occurred sometime in 2014 and it was already investigated by the Attorney-General (AG). In addition, the DA took this matter to court in 2015.
Thus, all the issues of irregular, fruitless and wasteful expenditure were already elaborated upon.
Interestingly even in the civil court case brought by the DA they did not deem it fit to allege illegality, criminality or personal liability against the SG. In addition, despite the scathing findings of irregular, fruitless and wasteful expenditure neither the judge nor the AG alluded to criminality, personal liability and/or any illegality on the part of the SG when he was Premier.
Finally, there are no legal arguments nor any evidence anecdotal or otherwise in the charge sheet that indicates that the alleged contract was part of or can be connected to any broader state capture project.
Noting the above, this case creates a number of dangerous precedents and indicates a dangerous historical pattern that maybe re-emerging in the National Prosecutorial Authority (NPA), including among others:
Its legal mischief making and legal creativity to hold political principals vicariously liable for alleged irregular, fruitless and waste expenditure as well as criminally liability for corruption by officials and the private sector when they played no part in it. The danger of this precedent is that it blurs the lines of political and administrative accountability, responsibility and liability.
Furthermore, it sets the precedent for the NPA to start charging every single current and ex President, Minister, Deputy Minister, Premiers, MEC’s, Mayors and Mayoral Committee’s since 1994 and 2000 respectively where the AG has made findings in the awarding of irregular contracts and fruitless, wasteful and irregular expenditure by officials. This would be case even if these public representatives were not directly involved and/or had knowledge of these actions, thus stretching the legal limits of vicarious liability.
More worrying is whether or not the NPA is once again on a slippery slope to being used as a tool for political lawfare as was the case by both the Scorpions and the Hawks in the recent past.
Let us not forget how the NPA use to cherry pick its cases through a deliberately myopic strategy of "chasing lizards on the river bank when there were crocodiles swimming in the river".
In other words, it targeted mainly senior ANC leaders on minor corruption charges whilst allowing key international criminals, mafia leaders, drug syndicates, gang leaders, apartheid war criminals and international elicit capital flight and tax evasion criminals to get indemnity and/or be given slaps on the wrists with small fines or not being charged at all despite overwhelming evidence against them. Examples include amongst others Vito Pallazolo, who is alleged to have been head of the Sicilian mafia, as well as Mark Thatcher, an international mercenary coup plotter.
Finally, it sets an illogical and irrational precedent that where political principals have made or will make calls to the private sector who have done business with the state to donate money and/or goods and/or services to poor communities, they will be charged for corruption simply because the call is being made by a public representative.
Be careful what you wish for
Thus, public representatives at all levels including former members of the national and provincial executives and mayoral committee executives who have been loudly declaring the guilt of the SG under the guise of the anti-corruption mantra and without having read what seems to be both a malicious and facetious charge sheet should take heed of the famous Aesop’s Fable quote "Be careful what you wish for, lest it comes true," and next the NPA or any other state institution targets you!
We must guard against this perilous path that we are treading, which not only undermines our constitutional rights but the integrity of our state institutions as well. In this regard, we should remind our state institutions of the legal principle that justice must not only be done but it must be seen to be done, and that if they are to be perceived as acting without fear or favour they should show the same over-zealousness in chasing the criminal crocodiles who are still swimming freely in the rivers.
In conclusion, we must not be derailed and distracted from our strategic tasks of defending and building our national democratic revolution. We require a unity and clarity of purpose if we want to achieve our ideals of a non-racial and non-sexist national democratic society.
- Dakota Legoete is a National Executive Member of the ANC. He writes in his personal capacity.
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