‘State must act against Malema’

Malema’s fas­cist tac­tics at the state cap­ture en­quiry are un­der­min­ing the rule of law in SA

Weekend Argus (Sunday Edition) - - OPINION - GE­ORGE DEVENISH

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 one, 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, 2018, into Al­le­ga­tions of State Cap­ture, Cor­rup­tion and Fraud in the Pub­lic Sec­tor, in­clud­ing Or­gans of State. In this re­gard it must en­quire, 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 shortly be­fore she re­tired from her of­fice.

Ac­cord­ing to News24 (Au­gust 20, 2018), 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 and in terms of the Com­mis­sions Act re­ferred to above, it has the power to en­ter and search any premises; it can com­pel any­one to tes­tify and de­mand that doc­u­ments be handed over to it.

Fur­ther­more, ac­cord­ing to the com­mis­sion’s procla­ma­tion, it can re­fer any mat­ter to the rel­e­vant law en­force­ment agency for pros­e­cu­tion or fur­ther in­ves­ti­ga­tion.

Fur­ther­more, the reg­u­la­tions re­ferred to above were pro­mul­gated in re­la­tion to the said Com­mis­sion of In­quiry on Fe­bru­ary 9, 2018.

Deputy Chief Jus­tice Ray­mond Zondo has been ap­pointed chair­per­son of the com­mis­sion. 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.

Of im­por­tance for this ar­ti­cle is reg­u­la­tion 12 (1), which states that: Any per­son who in­sults, dis­par­ages 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 last week that Julius Malema, the Eco­nomic Free­dom Fight­ers (EFF) leader, launched a scathing and 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, by call­ing Gord­han “cor­rupt” and “a dog of white monopoly cap­i­tal”, and claimed Gord­han hated black peo­ple.

He also ac­cused the deputy chief jus­tice of pre­sid­ing over a “Mickey Mouse” com­mis­sion that was steal­ing money from the poor.

In his at­tack, he ver­bally in­sulted ad­vo­cate Paul Pre­to­rius SC, 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 highly pop­ulist pub­lic di­a­tribe ex­plained above, Gord­han has laid three charges of crim­i­nal defama­tion, crimen in­juria and in­cite­ment of vi­o­lence against Malema, it is man­i­festly 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 co­gently sub­mit­ted that the state should take im­me­di­ate ac­tion against Malema to de­ter him from se­ri­ously in­flu­enc­ing the pro­ceed­ing and rep­u­ta­tion of the com­mis­sion.

In ad­di­tion, it is also sub­mit­ted that in re­fer­ring to the com­mis­sion in deroga­tory terms, he is not merely in­sult­ing it, but in so do­ing he is ac­tu­ally as­sault­ing the au­thor­ity of the state by, in­ter alia, in­cite­ment to vi­o­lence and thereby un­der­min­ing the rule of law, which is fun­da­men­tal to the op­er­a­tion of an or­derly state by en­sur­ing that civ­i­lized gov­er­nance takes place.

Some un­in­formed per­sons may in­deed find this episode amus­ing and sur­prised that the an­tics of a mi­nor po­lit­i­cal party be given con­sid­er­able me­dia cov­er­age. It is, how­ever, most cer­tainly no laugh­ing mat­ter. On the con­trary, for some time now, it has be­come cat­e­gor­i­cally 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 in the re­cent past by the un­seemly pan­de­mo­nium they have caused in par­lia­ment in re­la­tion to for­mer pres­i­dent Ja­cob Zuma. In so do­ing, 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. In­deed, in some re­spects viewed holis­ti­cally, it is sub­mit­ted that the fas­cist strat­egy and in­flam­ma­tory lan­guage Malema has adopted in en­deav­our­ing to sub­vert the com­mis­sion bor­ders al­most on trea­son­able or at least sub­ver­sive con­duct.

The EFF and its lead­er­ship have be­come a tan­gi­ble threat and 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 civ­i­lized gov­ern­ment, as set out in our Con­sti­tu­tion.

Devenish is Emer­i­tus Pro­fes­sor at UKZN and one of the schol­ars who helped to draft the In­terim Con­sti­tu­tion in 1993.

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