By Prof. Sipho Seepe
Advocating for equality before the law, African American abolitionist and civil rights leader Frederick Douglas famously argued.
“In a composite nation like ours, as before the law, there should be no rich, no poor, no high, no low, no white, no black, but common country, common citizenship, equal rights, and a common destiny.” This sentiment finds expression in the founding provisions of the South African Constitution. Section 9(1) of the Constitution reads: “Everyone is equal before the law and has the right to equal protection and benefit of the law.”
The case before the Constitutional Court, in which both the African Transformation Movement and Economic Freedom Fighters ask the apex court to “overturn the National Assembly’s dismissal of the Section 89 panel’s findings on the Phala Phala farm theft” is indicative of how equality before the law in democratic South Africa is but a myth.On September 13, 2018, the South African Revenue Service (SARS) took a female student to court after she was found with almost R10 million in US currency. She was charged with smuggling currency and failing to declare it. The SARS Commissioner has since reported that there was no record of the declaration to Customs of US $580 000, which is at the centre of the case before the apex court.SARS has not displayed the same energy, as it did with the female student, in hauling anyone involved to court.
After the ANC used its majority to block the establishment of a Multi-Party Committee (MPC) to determine Ramaphosa's guilt, former President Thabo Mbeki argued: “We must be honest with ourselves and understand that many of our people will entertain the suspicion that the Phala Phala matter includes corruption… Are we saying that we suspect or know that [Ramaphosa] has done something impeachable and therefore decided [to] protect our President at all costs by ensuring that no MPC is formed? If this is the case, what message are we communicating to the masses of our people about the values and integrity of the ANC?”
For its part, the Democratic Alliance was clear-eyed. Addressing the media, DA party leader, John Steenhuisen averred: “It shouldn't matter who the president of the Republic of South Africa is. The law must apply to them equally they must be above reproach… I've written to the United States Federal Bureau of Investigation, the FBI, to request that they investigate allegations of possible money laundering by the president, specifically we've requested that the FBI consider investigating the source of the funds and whether the money was brought into South Africa legitimately and declared to the appropriate authorities.”
Well, that was before GNU. The party has since changed tune. Its federal leader Helen Zille is on record that big business wanted the DA to prop up and protect President Ramaphosa. Ramaphosa has always been the best bet for the continuation of white supremacy and black inferiority. Unlike ordinary citizens, President Cyril Ramaphosa is lucky to have the backing of mainstream media, big business, and possibly some in the judiciary. The usual amici curiae such as Freedom Under Law, the Helen Suzman Foundation, CASAC, Nelson Mandela Foundation, and Ahmed Kathrada Foundation are nowhere to be seen.
Instead of amplifying the alleged crimes and misdeeds relating to Phala Phala, the legal tussle that played itself out at the Constitutional Court left many viewers none the wiser. Taking centre stage was whether the Section 89 Independent Panel misdirected itself by conflating what is meant by prima facie evidence versus sufficient evidence. While lawyers may choose to quibble about legal semantics, for Joe Soap on the street, the question is whether the court will uphold the principle of equality before the law or not.
It took Justice Rogers to recalibrate the entire engagement by focusing on what is not in dispute. Addressing himself to Advocate Ngcukaitobi SC, Rogers pointed out: “We then find that the $580,000 is not put into a safe and I would have thought more importantly [is] not put into a bank where it would have earned an interest at about R2300.00 per day. The first thing anybody who receives R8.7 million wants to do is to make sure it goes into their money market account. You don't leave that much money either in a safe or under a sofa. It is common cause that it wasn't bank and [that] it was hidden in the sofa.”
Justice Rogers continued: “A person loses R8.7 million, they would want to know who the investigating officer is and has been reported to the police. Is there a case pending? It is common cause that there wasn't… there was a deliberate decision because the president wanted to keep secret the source of the money that's the background to where the panel was coming from.”
Seeming to concur with the finding of the Independent Parliamentary panel, Rogers concluded that: "It would be an abuse for a president to allow the presidential protection unit to, as it were on the clock, use it to go and investigate the private theft. I mean there could be no doubt [about that]."
President Ramaphosa claimed that the money in question was the proceeds of the sale of animals. Following an intensive cross-referencing of information before it, the Independent Parliamentary panel comprised of former Chief Justice Sandile Ngcobo, a retired senior judge Thokozile Masipa, and a senior council Mahlape Sello, concluded that there “are weighty considerations which leave us in substantial doubt as to whether the stolen foreign currency is the proceeds of the sale”.
The panel concluded that:
(a) There is no evidence as to how this money came into the Republic;
(b) The exact amount of foreign currency stolen is yet to be disclosed;
(c) The investigation by the SARB suggests strongly that it had no records of this money entering this country or being reported as having been received;
(d) Instead of keeping the money in the safe until the next banking day, the money is kept concealed in a sofa for well over a month;
(e) The theft of the money was not reported to the SAPS and no case number or docket is registered; and
(f) Suspects were arrested, interrogated, and cooperated with the investigating team, yet no one was charged, prosecuted, or convicted.
Cutting to the chase, the panel had concluded that “viewed as a whole, the information presented to the Panel, prima facie, establishes that:
- There was a deliberate intention not to investigate the commission of the crimes committed at Phala Phala openly.
- The misconduct based on violations of the provisions of section 96(2)(b) and the violation of section 34(1) of PRECCA were committed to keep the investigation a secret.
- The President abused his position as Head of State to have the matter investigated and seek the assistance of the Namibian President to apprehend a suspect.These details, which form the basis of the current legal battle, appeared to be in short supply.
For Joe Soap in the streets, the debate in the Constitutional Court is just another attempt to shield President Ramaphosa from having to account for his misdeeds. We should not be surprised that confidence in the judiciary is flagging, and the rule of law is eroding fast and furiously in democratic South Africa.
* Professor Sipho P. Seepe is a Higher Education & Strategy Consultant.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.