Malema on shaky ground

EFF leader’s out­bursts against Zondo com­mis­sion in vi­o­la­tion of Com­mis­sions Act 8

Daily News - - OPINION - GE­ORGE DEVENISH Devenish is emer­i­tus Pro­fes­sor at UKZN and one of the schol­ars who as­sisted in draft­ing the In­terim Con­sti­tu­tion

COM­MIS­SIONS of in­quiry take place in terms of the Com­mis­sions Act 8 of 1947. Although it is a short piece of leg­is­la­tion it is an im­por­tant one and it has been ex­ten­sively used by dif­fer­ent ad­min­is­tra­tions. In terms of sec­tion 1, reg­u­la­tions can be pro­mul­gated in re­la­tion to a com­mis­sion set up in terms of this act.

A ju­di­cial com­mis­sion of in­quiry was in­sti­tuted in terms of the above leg­is­la­tion by the erst­while pres­i­dent, Ja­cob Zuma, on Jan­uary 23, into al­le­ga­tions of state cap­ture, cor­rup­tion and fraud in the pub­lic sec­tor, in­clud­ing or­gans of state. In this re­gard, it must in­quire, in­ves­ti­gate and make rec­om­men­da­tions into such al­le­ga­tions.

The com­mis­sion was pre­cip­i­tated by a re­port by the for­mer pub­lic pro­tec­tor Thuli Madon­sela, in re­la­tion to the is­sue of state cap­ture, which was re­leased just be­fore she left of­fice.

Ac­cord­ing to News24, at least 11 is­sues were iden­ti­fied by Madon­sela in her re­port into state cap­ture. She gave as ex­am­ples al­le­ga­tions of at­tempts to bribe a deputy min­is­ter of fi­nance, Mce­bisi Jonas; the al­leged Gup­tas’ ac­cess to Eskom; and pos­si­ble breaches of the ex­ec­u­tive ethics code in the ap­point­ment of the Cab­i­net by Zuma.

The com­mis­sion is not merely a pa­per tiger; it has the power to en­ter and search any premises, com­pel any­one to tes­tify and de­mand that doc­u­ments be handed over to it.

Fur­ther­more, it can re­fer any mat­ter to the rel­e­vant law en­force­ment agency for prose­cu­tion or prob­ing.

The reg­u­la­tions re­ferred to above were pro­mul­gated in re­la­tion to the said Com­mis­sion of In­quiry on Fe­bru­ary 9. Deputy Chief Jus­tice Ray­mond Zondo has been ap­pointed chair­per­son. Other prom­i­nent per­sons on the com­mis­sion are, be­sides for­mer au­di­tor-gen­eral Ter­ence Nombe­mbe, who is in charge of the in­ves­ti­ga­tion team, ad­vo­cates Paul Pre­to­rius SC, Vin­cent Maleka SC, Leah Gcabashe and Thandi Nor­man.

Reg­u­la­tion 12 (1) states that any per­son who in­sults, dis­par­agers or be­lit­tles the chair­per­son or any mem­ber of the com­mis­sion, or prej­u­dices the in­quiry or pro­ceed­ings or find­ings of the com­mis­sion, is guilty of an of­fence and li­able on con­vic­tion to a fine, or to im­pris­on­ment for a pe­riod not ex­ceed­ing six months.

This reg­u­la­tion is of im­por­tance be­cause it was re­ported (on News24) that last week Julius Malema, the EFF leader, launched a vit­ri­olic ver­bal at­tack on Min­is­ter Pravin Gordhan out­side the venue of the com­mis­sion in Park­town, Jo­han­nes­burg, when he was tes­ti­fy­ing be­fore the com­mis­sion.

Malema used deroga­tory and in­sult­ing lan­guage, call­ing Gordhan “cor­rupt” and “a dog of white mo­nop­oly cap­i­tal”, and claimed that the min­is­ter hated black peo­ple.

He also ac­cused the Deputy Chief Jus­tice of pre­sid­ing over a “Mickey Mouse” com­mis­sion that was steal­ing money from the poor. He ver­bally in­sulted Pre­to­rius, an ev­i­dence leader at the com­mis­sion, re­fer­ring to him as a “bas­tard”.

Fur­ther­more, he also made se­ri­ous al­le­ga­tions against Gordhan’s daugh­ter, Anisha, al­leg­ing she was cor­ruptly awarded con­tracts by the Na­tional Trea­sury and other state de­part­ments.

Be­sides the fact that as a re­sult of Malema’s pub­lic di­a­tribe, Gordhan has laid three charges of crim­i­nal defama­tion, crimen in­juria and in­cite­ment of vi­o­lence, against Malema, it is clear that he has prima fa­cie vi­o­lated reg­u­la­tion 12 (1) set out above.

There is also no doubt that his con­duct and lan­guage could have an in­tim­i­dat­ing in­flu­ence on other wit­nesses who will be re­quired to ap­pear be­fore the Zondo Com­mis­sion.

As a re­sult it is sub­mit­ted that the state should take im­me­di­ate ac­tion against Malema to de­ter him from se­ri­ously in­flu­enc­ing the pro­ceed­ing and rep­u­ta­tion of the com­mis­sion.

It is also sub­mit­ted that in re­fer­ring to the com­mis­sion in deroga­tory terms as a Mickey Mouse”, he is not merely in­sult­ing it, but ac­tu­ally as­sault­ing the au­thor­ity of the state by in­cite­ment to vi­o­lence and thereby un­der­min­ing the rule of law, which is fun­da­men­tal to the oper­a­tion of an or­derly state by en­sur­ing civilised gover­nance.

The un­in­formed may find this episode amus­ing and be sur­prised that the an­tics of a mi­nor po­lit­i­cal party be given con­sid­er­able me­dia cov­er­age. It is, how­ever, no laugh­ing mat­ter.

For some time now it has be­come clear that the EFF and its lead­ers are us­ing dan­ger­ous fas­cist tac­tics to un­der­mine the au­thor­ity of our demo­cratic state. This they have also done re­cently by the un­seemly pan­de­mo­nium they have caused in Par­lia­ment in re­la­tion to Zuma.

They did harm to the of­fice of the pres­i­dent and thereby also pre­vented other po­lit­i­cal par­ties from ex­er­cis­ing their es­sen­tial over­sight role in re­la­tion to the ex­ec­u­tive.

In some re­spects viewed holis­ti­cally, the fas­cist strat­egy and in­flam­ma­tory lan­guage Malema has adopted in en­deav­our­ing to sub­vert the com­mis­sion bor­ders on trea­son­able or at least sub­ver­sive con­duct.

The EFF and its lead­er­ship have be­come a dan­ger to our con­sti­tu­tional democ­racy and it is im­per­a­tive that co­gent ac­tion be taken against them by us­ing the ap­pro­pri­ate le­gal and ju­di­cial means avail­able to our demo­cratic state in or­der to pro­tect its au­thor­ity and its hon­our by main­tain­ing the rule of law and civilised gov­ern­ment, as set out in our Con­sti­tu­tion.

The strat­egy and in­flam­ma­tory lan­guage Malema has adopted in en­deav­our­ing to sub­vert the com­mis­sion bor­ders on trea­son­able

Ar­chives | CINDY WAXA African News Agency

Julius Malema and EFF mem­bers ad­dress­ing the me­dia ear­lier this year. Malema’s out­bursts are in vi­o­la­tion of the Com­mis­sions Act 8, says the writer.

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