Outa,what hap­pened to in­no­cent un­til proven guilty?

The Sunday Independent - - DISPATCHES -

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

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