It all started with a wedding. A 200 plus entourage of friends and family landed their private aircraft at the Waterkloof Air Force Base in April 2013.
What South African’s didn’t know was that the country had already entered a new era of corruption that was to have a myriad negative consequences. Now, after years of legal obfuscation, political manipulation of “captured” state institutions and prosecutorial agencies, Cyril Ramaphosa’s victory to succeed Jacob Zuma as president of the ruling African National Congress has opened up the possibility that an age of impunity will be replaced with a new era of public accountability.
Since the Gupta’s extravagant family wedding at Sun City a slew of revelations have come out. These range from the “State of Capture report” of the former Public Protector Thuli Madonsela, to the damning Gupta-leaks uncovered by investigative journalists AmaBhungane. All helped South Africans come to understand the shocking extent of the systemic corruption inextricably linked to the Gupta name.
Despite all these revelations, the country’s prosecutorial bodies have remained silent. So when the Asset Forfeiture Unit of the National Prosecuting Authority confirmed its intention to serve summons on members of the Gupta family and their cronies on January 15 this year ordering them to preserve assets to the tune of 1.6 billion South African Rand, the first question that sprung to mind was “why now”?
The answer lies with Ramaphosa’s election on a “change” and “reform” ticket. His victory in December has shifted the balance of power against the Zuma faction.
A second factor is that the ANC is concerned about its electoral future, with the 2019 national election on the horizon. Zuma has cost the ANC almost 16% of its electoral majority – some three million votes. With opposition parties scrambling to form coalitions, and voting trends suggesting a further decline in the ANC’s share of the vote, there is now a very real prospect of the ANC being voted out of power in 2019. An ANC majority is no longer a foregone conclusion – unthinkable until recently.
It seems denial in the ANC has been replaced by a sense of fear. The party is trying to show the voting public that it can clear up the mess that it has made.
Chickens come home to roost
The NPA’s announcement suggests that the chickens seem finally to be on their way home to roost on the Gupta empire. The NPA’s Asset Forfeiture Unit has applied to the High Court for an order that the Gupta’s must “preserve” R1.6 billion worth of assets. This power is granted under Section 38 of the Prevention of Organised Crime Act. The provision empowers the NPA to make an ex parte application to the High Court to “prohibit any person… from dealing in any manner with any property”.
The court must grant the order if there are reasonable grounds to believe that property is the “instrumentality of an offence” or “is the proceeds of unlawful activities”. This must be read in light of the rest of the Act which allows the state to confiscate property that is the proceeds of unlawful activities.
The rationale of the preservation order is, therefore, to prevent such a person or suspect from disposing of assets that are proceeds from unlawful activities which would render a confiscation order fruitless.
An analysis of the act makes it clear that, if a preservation order is requested, the intention of the NPA must be to arrest and charge the Guptas and their associates. A preservation order could only be made if a confiscation order is ultimately envisaged. In turn, a confiscation order can only be made after a criminal conviction.
The logical conclusion is that the NPA, assuming that they are acting in good faith, are intent on arresting and prosecuting the Guptas.
Dilemma facing Ramaphosa and the ANC
The problem for the ANC is this: if its intention is to make the Guptas the sole-scapegoats in the state-capture saga, they will be in a good deal of trouble. Of the published Gupta scandals, the evidence strongly suggests that they were not acting alone. The Guptas themselves may represent only the tip of the iceberg.
Top government officials are reported to have been involved in almost all instances.
For example, Mining Minister Mosebenzi Zwane, is heavily implicated in the Sun City wedding affair, while whistle-blowers Mcebisi Jonas and Vytjie Mentor implicate Zuma as a participant in the Guptas offering them (for undue reward) the positions of ministerial positions.
Zuma’s son, Duduzane, is also heavily implicated in corrupt activities related to the state power utility Eskom, as well as the finance minister debacle.
The NPA will struggle to prove its case against the Guptas, at least the full extent of it, without implicating those that drove or condoned their misdemeanours. It seems clear therefore that the ANC cannot restore its reputation while letting its leaders who looted the country’s resources drift off into the wilderness.
This presents Ramaphosa with an acute political dilemma given that he’s pledged to rebuild unity in the ANC.
Hence, we are likely to see a very high level and multi-faceted blame game. But any attempt to restore its credibility will probably prove counter productive unless the party accepts that some of its biggest fish must be prosecuted too.
And it goes without saying that private sector players such as Trillian and KPMG who were willing enablers of the abuse of state procurement processes must also be held to account. If necessary they must pay the ultimate price of corporate collapse as Bell Pottinger did.
Just the beginning
The NPA’s announcement represents no more than a good start after years of prosecutorial negligence and incompetence – or dishonesty – and costly inaction.
In terms of accountability it’s indeed time to catch up and restore the legitimacy of important institutions. But the stakes are very high – for the implicated politicians and their business cronies, for Ramaphosa and the ANC’s electoral future, and for the credibility of South Africa as a trustworthy destination for much needed investment.
Richard Calland, Associate Professor in Public Law, University of Cape Town and Mike Law, Senior legal researcher in Public Law, University of Cape Town.
This article first appeared on The Conversation.
