Outa,what happened to innocent until proven guilty?
WHEN the Organisation Undoing Tax Abuse (Outa) laid charges of high treason and corruption against former Communications Minister Faith Muthambi on July 17, it alarmingly announced that it had “enough evidence which would lead to a guilty verdict and a sentence of life imprisonment”.
However, the only thing Outa produced was an affidavit containing claims that could never sustain charges of high treason and corruption.
On Monday, September 4, Outa, through some sensational news headlines, announced that Muthambi was about to be criminally charged by the Directorate for Priority Crime Investigations (Hawks).
A news agency quoted a Hawks official as saying all it had received were “volumes and volumes of documents from Outa”, but denied it was investigating a charge of treason.
Such a distortion of the law enforcement agency’s official position can best be described as a desperate and mischievous attempt to pressure the officers who are tasked with maintaining law and order.
Outa and some media institutions’ latest actions were hyperbolic and should therefore intrigue South Africans to seek the facts about such an offence called high treason. By merely listening or reading news headlines, one would have thought that there were charges against Muthambi.
There has only been one treason conviction in postapartheid South Africa. In 2012, members of the far right-wing Boeremag group were convicted of treason following one of the lengthiest trials in South African legal history.
If the ridiculous charge of high treason against Muthambi was to secure a conviction, it would be the second successful conviction in a democratic South Africa.
A person commits high treason if, owing allegiance to the Republic of South Africa, she/he unlawfully engages in conduct within or outside the republic, with the intention of overthrowing the government; coercing the government by violence into any action or inaction; violating, threatening or endangering the existence, independence or security of the republic; and changing the constitutional structure of the republic.
Nothing exposes the ridiculousness of this charge of high treason more than a simple appreciation for the meaning of high treason: A person unlawfully engaging in conduct within or outside the republic, with the intention of overthrowing the government.
It is disappointing that Outa continues to be oblivious to such facts.
The hysteria created around the allegations continues to sidetrack many from objectively looking at what the common law criminal act of high treason entails.
The act of high treason requires hostile intent. It must be emphasised, however, that the hostile intent must be proved beyond reasonable doubt. It might take place in time of war such as assisting the enemy in fighting
against the republic or furnishing the enemy with information. Or in time of peace by taking part in or instigating an armed revolt or rebellion against the republic.
The minister did not engage in any of the conduct described. Therefore an act of high treason is not substantiated. It is also clear that the minister did not coerce the government by violence into any action or inaction. The Outa affidavit, as deposed by Stefanie Fick, fails to link the elements of high treason with the alleged conduct of the minister but instead consolidates a sequence of irrelevant evidence of other tribunals in a desperate attempt to justify unfounded allegations of high treason and corruption.
The desperate attempt to selectively interpret the Constitutional Court judgment on the set-top boxes matter is another sign that Outa’s allegations are weak. It is common knowledge that Muthambi was vindicated by the court judgment on June 8.
It is also disappointing that in trying to back up its allegations, Outa tried to refer to the findings of the ad hoc committee which was mandated to conduct an enquiry into the SABC board’s fitness to hold office, while aware that Muthambi has taken it for judicial review.
One would have thought that those with a modicum of legal sense would appreciate that instituting a legal review necessarily suspends anything that might arise out of the disputed report. Muthambi has contended that the outcome of the ad hoc committee’s inquiry into the fitness of the SABC board can best be described as a travesty of justice, especially on the findings and recommendations against her.
The affidavit disclosed by Outa also ridiculously makes claims about containing evidence of corruption. The offence of corruption is committed if a person “accepts any gratification from anybody else, or gives any gratification to anybody else in order to influence the receiver to conduct herself in a way which amounts to the unlawful exercise of any duties”.
Outa, in its affidavit, does not state how the minister was influenced to perform or omit to do anything she was required to do. It also fails to indicate which gratification the minister received. In criminal cases, the State should prove its case beyond reasonable doubt. In civil cases, a case is proved on the balance of probabilities. The burden is different and, as such, the evidence of one tribunal cannot be used in another tribunal.
The so-called evidence is made up of inadmissible evidence which will never be relevant in proving the allegations.
It has become clear that Outa’s latest intervention follows a similar pattern to what we have seen, which is aimed at creating a cloud around Muthambi.
Although the minister has never broken any law, Outa has exploited the gullibility of some media practitioners to publicise a narrative that gives an impression that the minister has broken some laws. Whenever there are allegations about her, she is being portrayed as the guilty party and is always expected to prove her innocence.
Pfarelo Maduguma is spokesperson in the Ministry of Public Service Administration