The simple choice

SARS WARS Finance Minister Pravin Gordhan and President Jacob Zuma. Picture: Herman Verwey
SARS WARS Finance Minister Pravin Gordhan and President Jacob Zuma. Picture: Herman Verwey

‘Let me do my job.”

It was not so much a plea as a self-assured rebuke of those he considers to be beneath his exalted place on the totem pole of President Jacob Zuma’s ANC.

Some argue he is right, because the Hawks’ letter inviting him to present himself at their offices for a warning statement is “legal nonsense”.

Others argue he is not above the law and so should have presented himself at the Hawks’ offices, because whether or not the Hawks have a prima facie case against him is not his call to make, but that of the National Prosecuting Authority (NPA) and, ultimately, the courts.

For current purposes, I espouse neither view but a third.

From the little that I know of what has assumed the Hollywoodesque appellation Sars Wars, the finance minister is either a fugitive from justice or a hapless victim of political muzzling.

I have seen no evidence of either.

But let us assume that the Hawks have dug up credible evidence of criminality on the part of the finance minister.

Is it in the national interest to charge him at this time?

This is not a rule of law question; it is a leadership question.

In an interview with Ebony magazine, former US secretary of state Condoleezza Rice provided her perspective on what it takes to be a leader.

She said leadership often entailed a choice between two equally bad decisions on the hoof (that is, without the luxury of time to reflect on either), where only subsequent events determined which of the two was worse.

Think about that for a moment.

On the one hand, we have a finance minister above whom the spectre of criminal charges looms large.

Again, let us assume the charges are well founded in law and in fact.

The Constitution decrees that everyone is equal before the law, and has the right to equal protection and benefit of the law.

It also outlaws unfair discrimination on stated and unstated grounds.

Arguably, it would be unfair discrimination against other criminal suspects if the finance minister in these circumstances were spared the ignominy of arrest, being criminally charged in open court, required to plead, and then go through a trial like everybody else.

I don’t quarrel with any of this.

On the other hand, however, we have an economy that is teetering on the brink of collapse because of a number of factors, including:

. An unsustainable unemployment rate, especially among young black people, who comprise the bulk of the population;

. A 0% economic growth forecast;

. Economic policy uncertainty;

. A president reportedly readying himself to take over procurement functions of state-owned enterprises, currently overseen by the finance minister who now faces the possibility of criminal charges;

. A governing party that has just had a poor showing at the local government polls;

. A president who reportedly instructs the finance minister to “find” a chunk of money to offset a 0% university fee increase;

. Rumours of a Cabinet reshuffle in circumstances where, barely nine months ago, the same president fired another finance minister in circumstances that are yet to be truthfully explained;

. A president who is facing hundreds of counts of corruption;

. Rumours of the finance minister refusing an alleged presidential instruction to bail out the national airline once again; and

. All of this taking place as another dreaded visit by rating agencies to our shores is imminent, and the same finance minister who may possibly be charged criminally is at the centre of our charm offensive with these agencies, our creditors and former finance minister Trevor Manuel’s “amorphous markets”.

Now, as a leader confronting the choice of either pulling the trigger on the finance minister at this time and basking in the well-deserved glory that comes with applying the rule of law without fear, favour or prejudice, while risking economic collapse of the sort we have never experienced before, on the one hand; or delaying pulling the trigger and allowing the finance minister to do his job and help us navigate our economy to more placid waters, while risking criticism of subverting the rule of law, on the other, what do you do?

To a leader confronting these choices in these circumstances, a decision should not be difficult to make, especially because he or she knows in advance which of the two is worse.

One would delay pulling the trigger. Pull it, one still would, but not now. As Jean-Jacques Rousseau reminds us in his treatise, The Social Contract, “something done too soon will prove abortive”.

When a leader has the burden of the national economy on his shoulders and, with it, the fate of an entire class of the population (and the middle class and the poor would be the worst affected by a decision to pull the trigger now), employing the law as a blunt instrument may not be the best approach in the national interest.

Some have asked, rhetorically, whether the same considerations should not be taken into account in respect of the corruption charges that the president faces.

Well, firstly, both the Supreme Court of Appeal in 2014 and the full Bench of the high court earlier this year confirmed that the setting aside of the NPA’s decision in 2009 to withdraw criminal charges against the president “has the effect that the charges ... are automatically reinstated”.

So, the president already faces criminal charges. The trigger has already been pulled.

Secondly, that decision had no discernibly negative effect on either the markets or the economy.

In fact, a rudimentary desktop Google search reveals that on the day of the judgment on June 24 this year, the rand closed at R15.07 to the US dollar.

By the following Friday, it had strengthened significantly to R14.54. And the president was still facing criminal charges (as he still does).

Thirdly, contrast that with what happened immediately after the president fired then finance minister Nhlanhla Nene on December 9 last year.

The rand tanked from R14.95 at the close that Wednesday to R15.88 at the close that Friday.

It recovered immediately on the president’s forced appointment of the current finance minister some three trading days later to close at R14.90 on December 15 – marginally stronger.

A leader would remember all of this and pause. He would not rush to charge a finance minister who may very well have diverted our economy from “junk” status when he went on a charm offensive to our trading partners, creditors and ratings agencies immediately on his appointment.

Charging him now – in the midst of rumours and reports that the president is determined to grab hold of Treasury levers – would be reckless in the extreme.

Whether these rumours and reports are true or a pack of lies concocted by white monopoly capital is irrelevant in this environment.

What matters is that the perception is out there. The presidency’s denials in innumerable nocturnal media statements will not change that perception.

Cool heads are needed in this situation. Hot-headedness may just be the undoing of us all – well, except the well-heeled.

Whether the finance minister has a case to answer to or not, now is not the time for a family feud while the family home is ablaze. Let us all think about the greater good – for once.

Ngalwana is an advocate at Duma Nokwe Group of Advocates anda member of the Johannesburg Society of Advocates


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