tag:theconversation.com,2011:/fr/topics/gupta-family-39562/articlesGupta family – The Conversation2024-01-27T06:07:13Ztag:theconversation.com,2011:article/2219002024-01-27T06:07:13Z2024-01-27T06:07:13ZJacob Zuma, the monster South Africa’s ruling ANC created, continues to haunt it<p>Former South African president Jacob Zuma is <a href="https://www.bing.com/ck/a?!&&p=23cde356c2361300JmltdHM9MTcwNTg4MTYwMCZpZ3VpZD0zMGZhN2Y5OS00MWYwLTYxYjctMjZmMS02Y2ZlNDAxMDYwYmYmaW5zaWQ9NTI0Ng&ptn=3&ver=2&hsh=3&fclid=30fa7f99-41f0-61b7-26f1-6cfe401060bf&psq=uMhkonto&u=a1aHR0cHM6Ly93d3cuc2FiY25ld3MuY29tL3NhYmNuZXdzL3p1bWEtdXJnZXMtc291dGgtYWZyaWNhbnMtdG8tdm90ZS1mb3ItbmV3bHktZm9ybWVkLXVta2hvbnRvLXdlc2l6d2Uv&ntb=1">endorsing</a> the uMkhonto we Sizwe (MK) Party, the latest rival to the governing African National Congress (ANC) for the <a href="https://www.eisa.org/election-calendar/">upcoming national elections</a>. By doing so, he not only challenges the ANC politically, but also claims its heritage.</p>
<p>The new party – which media reports say is <a href="https://www.timeslive.co.za/sunday-times/news/politics/2024-01-07-zuma-exposed-as-brains-behind-establishment-of-mk-party/">Zuma’s brainchild</a> – uses the name of the ANC’s former military wing. The party’s launch coincided with the 62nd anniversary of the real <a href="https://www.sahistory.org.za/article/umkhonto-wesizwe-mk">uMkhonto we Sizwe (MK)</a>, formed on <a href="https://www.bing.com/ck/a?!&&p=04fd21d4aee3a8f1JmltdHM9MTcwNTg4MTYwMCZpZ3VpZD0zMGZhN2Y5OS00MWYwLTYxYjctMjZmMS02Y2ZlNDAxMDYwYmYmaW5zaWQ9NTI3Mw&ptn=3&ver=2&hsh=3&fclid=30fa7f99-41f0-61b7-26f1-6cfe401060bf&psq=uMhkonto&u=a1aHR0cHM6Ly93d3cuc2FoaXN0b3J5Lm9yZy56YS9hcnRpY2xlL3Vta2hvbnRvLXdlc2l6d2UtbWs&ntb=1">16 December 1961</a> to fight the apartheid government. </p>
<p>Zuma could not have been more daring. Yet the ANC obfuscates, criticising him instead of acting decisively and expelling him. Meantime, he actively campaigns to unseat it. Why?</p>
<p>I have studied and written extensively about the politics of the ANC and its alliance partners – the Congress of South African Trade Unions (<a href="http://www.cosatu.org.za/">Cosatu</a>) and the South African Communist Party (<a href="https://www.sacp.org.za/">SACP</a>). I was also one of the editors of the <a href="https://www.hsrcpress.ac.za/books/the-zuma-administration">book</a> The Zuma Administration: Critical Challenges. </p>
<p>In my view, the reason the ANC is cagey about taking him on, is because the party tied itself in knots <a href="https://www.ft.com/content/0fc7bb4c-b027-11e3-b0d0-00144feab7de">defending Zuma’s bad behaviour</a> in the past. The ANC created the Zuma problem. The party and its <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv03161.htm">alliance partners</a> abetted his kleptocracy and facilitated his <a href="https://www.statecapture.org.za/">capture of the state</a>. They created Zuma as a <a href="https://www.rusi.org/publication/jacob-zuma-after-battle-polokwane">populist with a penchant for rabble-rousing</a>. Now they are paralysed and can’t act against him.</p>
<p>The ANC also <a href="https://www.bing.com/ck/a?!&&p=ce02ce879565061cJmltdHM9MTcwNTg4MTYwMCZpZ3VpZD0zMGZhN2Y5OS00MWYwLTYxYjctMjZmMS02Y2ZlNDAxMDYwYmYmaW5zaWQ9NTE3NA&ptn=3&ver=2&hsh=3&fclid=30fa7f99-41f0-61b7-26f1-6cfe401060bf&psq=support+for+zuma&u=a1aHR0cHM6Ly93d3cuY2l0aXplbi5jby56YS9uZXdzL3NvdXRoLWFmcmljYS9wb2xpdGljcy9hbmMtd29udC1hY3QtYWdhaW5zdC16dW1hLWZvci1ub3ctcmVwb3J0Lw&ntb=1">fears</a> that if it expelled him, he could portray himself as a victim.</p>
<p>Decisive action against him would require the party to face up to its own demons. It would be exposed as having enabled him. </p>
<p>The ANC’s reluctance to take him on or fire him is rooted in the events of 2005. Then South African president Thabo Mbeki <a href="https://www.sahistory.org.za/dated-event/president-thabo-mbeki-sacks-deputy-president-jacob-zuma">fired Zuma as his deputy</a> after the latter was mired in corruption allegations. Zuma’s use of this to build a case that he was a victim still haunts the ANC. It fears a repeat so close to the 2024 elections. </p>
<p>Zuma’s political pursuits now depend on a new party whose electoral strength is yet to be tested. It pales in comparison with the support he got in the past. </p>
<p>My arguments is that the political cost of not expelling him – in terms of lost votes – is greater than the cost of expelling him. By not acting against him, the ANC is failing to “renew” itself as it has <a href="https://renewal.anc1912.org.za/">promised</a> to do. This makes the party look weak and may cost it electoral support.</p>
<h2>Zuma and the ANC</h2>
<p>The ANC knew Zuma was likely to turn out this way, from as early as 1997, when it elected him deputy president to Thabo Mbeki, paving his way to the highest office in the land.</p>
<p>South African author and journalist Mark Gevisser <a href="https://www.everand.com/book/641542878/Thabo-Mbeki-The-Dream-Deferred">writes</a>:</p>
<blockquote>
<p>Mbeki and those around him began to worry that Zuma possessed a dangerous combination of unhealthy ambition and poor judgment.</p>
</blockquote>
<p>They were right.</p>
<p>Because of this fear, he was at first not considered for the position of deputy president. Instead, Mbeki offered the position to Inkatha Freedom Party leader <a href="https://theconversation.com/mangosuthu-buthelezi-was-a-man-of-immense-political-talent-and-contradictions-181081">Mangosuthu Buthelezi</a>. However, through Zuma’s machination, <a href="https://www.tandfonline.com/doi/full/10.1080/00344890902944387">this was foiled</a>. He eventually became the deputy president. But he was bitter that he had been initially overlooked for the position.</p>
<p>During <a href="https://www.hsrcpress.ac.za/books/the-zuma-administration">Mbeki’s presidency</a>, relations between the ANC and its <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02424/04lv02730/05lv03161.htm">alliance partners</a> became frosty. </p>
<p>The contestation was around the Mbeki government’s free market economic policies, which Cosatu and the SACP <a href="https://www.ft.com/content/04d23130-a8dc-11dc-ad9e-0000779fd2ac">condemned</a> as a neo-liberal agenda that deviated from the ANC’s aim of <a href="https://omalley.nelsonmandela.org/index.php/site/q/03lv02039/04lv02103/05lv02120/06lv02126.htm">socio-economic transformation and empowerment</a> of those previously marginalised when it came to power in 1994.</p>
<p>Zuma exploited this to position himself as the centre around which <a href="https://mg.co.za/article/2010-09-03-coalition-of-the-wounded-turn-on-zuma/">those allegedly wounded by Mbeki</a> could coalesce.</p>
<h2>The rise of Zuma the populist</h2>
<p>In Zuma, the <a href="https://www.hsrcpress.ac.za/books/the-zuma-administration">alliance</a> saw someone who could represent its ideological position in the country’s policy choices. Yet, he was part of the ANC leadership that adopted Mbeki’s economic strategy and was never known to espouse leftist politics. To their dismay, he proved not to be their <a href="https://mg.co.za/article/2017-04-20-replacing-mbeki-with-zuma-did-not-solve-our-problems-nzimande/">ideological ally in office</a>.</p>
<p>Later the same year Zuma was <a href="https://theconversation.com/why-a-decade-on-a-new-book-on-zumas-rape-trial-has-finally-hit-home-85262">accused of raping</a> the daughter of a friend. He was acquitted but was tainted as immoral.</p>
<p>This alone should have disqualified him from any leadership position. But it did not matter to his allies, who ensured he became the president of the ANC <a href="https://mg.co.za/article/2007-12-18-zuma-is-new-anc-president/">in 2007</a>, and that of the country <a href="https://www.sahistory.org.za/article/jacob-zuma-presidency-2009-2017-march">in 2009</a>. He was, to the alliance, an <a href="https://www.researchgate.net/publication/232871908_Understanding_the_'Zuma_Tsunami'">unstoppable tsunami</a>.</p>
<p>The ANC bashed the judiciary as counter-revolutionary for unfavourable judgments against Zuma. The party claimed his prosecution was political persecution <a href="https://www.jstor.org/stable/27756284?seq=2">at Mbeki’s behest</a>. Then ANC Youth League leader Julius Malema declared they were prepared to <a href="https://www.iol.co.za/news/politics/we-will-kill-for-zuma-404646">kill and die for Zuma</a>. </p>
<h2>Leading with impunity</h2>
<p>Zuma’s eventual ascendancy to the presidency of the country in 2009 was <a href="https://www.alterinter.org/?Working-class-politics-or-populism-the-meaning-of-Zuma-for-the-left-in-SA">hailed,</a> by the alliance left – Cosatu and the SACP, as</p>
<blockquote>
<p>a victory against the neo-liberal orthodoxy of Mbeki.</p>
</blockquote>
<p>Zuma did not deliver on this expectation. Yet he continued to enjoy the support of the tripartite alliance. </p>
<p>He went on to <a href="https://www.bing.com/ck/a?!&&p=905b9cd41887a59aJmltdHM9MTcwNTg4MTYwMCZpZ3VpZD0zMGZhN2Y5OS00MWYwLTYxYjctMjZmMS02Y2ZlNDAxMDYwYmYmaW5zaWQ9NTE5NQ&ptn=3&ver=2&hsh=3&fclid=30fa7f99-41f0-61b7-26f1-6cfe401060bf&psq=betrayal+of+the+promise+report&u=a1aHR0cHM6Ly9wYXJpLm9yZy56YS93cC1jb250ZW50L3VwbG9hZHMvMjAxNy8wNS9CZXRyYXlhbC1vZi10aGUtUHJvbWlzZS0yNTA1MjAxNy5wZGY&ntb=1">subvert</a> the criminal justice system to avert prosecution for his corruption charges. </p>
<p>The judiciary <a href="https://theconversation.com/are-judges-in-south-africa-under-threat-or-do-they-complain-too-much-45459">pushed back</a> but earned the wrath of the ANC and its alliance partners.</p>
<p>They always closed ranks to shield Zuma from accountability. He survived numerous motions of no confidence in parliament for, among other things, <a href="https://mg.co.za/article/2012-11-08-parties-to-file-motion-of-no-confidence-against-zuma/%22">“dangerously flawed judgment”</a> relating to his <a href="https://www.gov.za/news/media-statements/president-zuma-appoints-new-national-director-public-prosecutions-25-nov-2009">appointment of Menzi Simelani</a> as head of the National Prosecuting Authority, despite evidence that he had lied to a presidential commission of inquiry.</p>
<p>Among the notable no-confidence votes against which the ANC-dominated parliament shielded Zuma was over his use of public money to renovate his private homestead <a href="https://www.saflii.org/za/cases/ZACC/2016/11.pdf">at Nkandla</a>. </p>
<p>The stage was set for Zuma to wreak havoc with impunity. The alliance left only started to move away from him when it became obvious that he had outsourced the running of the country to his friends, <a href="https://www.wionews.com/world/how-gupta-brothers-from-india-landed-south-africas-ruling-party-in-its-biggest-crisis-397138">the Gupta family</a>. It was too late.</p>
<p>In 2015, he <a href="https://www.reuters.com/article/idUSKCN0UO0KO/">sacked</a> the finance minister Nhlanhla Nene, only to replace him with an obscure Gupta-sanctioned appointee, with an eye on the national treasury.</p>
<p>The market tailspinned into and the <a href="https://www.ft.com/content/5c0da8b2-9eb5-11e5-b45d-4812f209f861">rand plummeted</a>. Yet the ANC still defended him in parliament.</p>
<p>Towards the end of 2016, the public protector released a <a href="https://www.sahistory.org.za/archive/state-capture-report-public-protector-14-october-2016">damning report</a> showing how the state had been captured at Zuma’s behest. Again, the ANC foiled attempts to remove him.</p>
<p>He only resigned on <a href="https://www.bbc.com/news/world-africa-43066443?utm_source=Media+Review+for+February+15%2C+2018&utm_campaign=Media+Review+for+February+15%2C+2018&utm_medium=email">14 February 2018</a>. This was not so much for his misdemeanours but because he was no longer the president of the ANC.</p>
<h2>What needs to happen</h2>
<p>The ANC’s indecisiveness does it no good. Its claim that he has <a href="https://www.youtube.com/watch?v=fuu_FEGQc0A">“walked away”</a> from the party and is therefore no longer a member is wishful thinking. He has <a href="https://www.reuters.com/world/africa/zuma-says-he-will-not-vote-anc-south-africas-election-2023-12-16/">made it clear</a> he will remain an ANC member.</p>
<p>The only way to terminate his membership is to expel him. This should have happened much earlier, at least before the ANC’s <a href="https://theconversation.com/south-africas-anc-marks-its-112th-year-with-an-eye-on-national-elections-but-its-record-is-patchy-and-future-uncertain-221125">112th anniversary festivities </a> earlier this month. They could have used the platform to explain the decision to cleanse the party of those who debase it.</p><img src="https://counter.theconversation.com/content/221900/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mashupye Herbert Maserumule received funding from National Research Foundation(NRF). He is affiliated with the South African Association of Public Administration and Management(SAAPAM).</span></em></p>The ANC tied itself in knots defending Zuma’s destructive bad behaviour in the past. Acting against him now would require it to own up to its sins.Mashupye Herbert Maserumule, Professor of Public Affairs, Tshwane University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1865822022-07-12T07:27:35Z2022-07-12T07:27:35ZZondo Commission’s report on South Africa’s intelligence agency is important but flawed<figure><img src="https://images.theconversation.com/files/473381/original/file-20220711-14-lesf18.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">President Cyril Ramaphosa, right, receives the final State Capture Report from Chief Juistice Raymond Zondo. </span> <span class="attribution"><span class="source">GCIS/Flickr</span></span></figcaption></figure><p>South Africa’s judicial probe into state capture and corruption, the <a href="https://www.statecapture.org.za/">Zondo Commission</a>, has concluded that the <a href="https://www.ssa.gov.za/">State Security Agency</a> was integral to the capture of the state by corrupt elements. These included former president Jacob Zuma’s friends, <a href="https://www.wionews.com/world/how-gupta-brothers-from-india-landed-south-africas-ruling-party-in-its-biggest-crisis-397138">the Gupta family</a>.</p>
<p>The agency has been unstable for some time. <a href="https://www.lse.ac.uk/international-development/Assets/Documents/PDFs/csrc-background-papers/Intelligence-In-a-Constitutional-Democracy.pdf">Previous</a> <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">investigations</a> have made findings to improve the performance of civilian intelligence. Yet problems relating to poor performance and politicisation persist. They escalated during <a href="https://books.google.co.za/books/about/The_Zuma_Years.html?id=BwxbDwAAQBAJ&redir_esc=y">Zuma’s tenure</a>.</p>
<p>The commission’s <a href="https://www.statecapture.org.za/">hearings</a> were remarkable for an institution that had become <a href="https://www.dailymaverick.co.za/article/2021-01-26-commission-hears-of-alleged-covert-ops-in-media-judiciary-civil-society-academia-and-unions-costing-taxpayers-hundreds-of-millions/">used to operating secretly</a>. Spies testified in detail, and in public, about what had gone wrong at the agency during the Zuma era (<a href="https://www.thepresidency.gov.za/profiles/president-jacob-zuma-0">May 2014 to February 2018</a>). Some did so <a href="https://www.dailymaverick.co.za/article/2021-01-28-security-alert-images-circulating-on-social-media-may-put-state-capture-commissions-unidentified-witnesses-at-risk/">at great personal risk</a>.</p>
<p>I have researched intelligence and surveillance, and served on the <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">High Level Review Panel on the State Security Agency</a>. In my view, the Zondo report is a globally significant example of radical transparency around intelligence abuses. But it lacks the detailed findings and recommendations to enable speedy prosecutions. It also fails to address the broader threats to democracy posed by unaccountable intelligence. </p>
<h2>Covert operations</h2>
<p>The commission heard evidence pointing to fraud, corruption and abuse of taxpayers’ money at the agency. It also heard how the Guptas benefited from these abuses. The agency shielded them from investigations that indicated they were a national security threat. </p>
<p>The most significant recommendation is that law enforcement agencies should further investigate whether people implicated in the report committed crimes. The commission expressed particular concern about covert intelligence projects that appeared to be “special purpose vehicles to siphon funds”. It made specific reference to three people who should be investigated further.</p>
<p>The first is former director-general <a href="https://www.news24.com/news24/southafrica/investigations/arthur-fraser-a-law-unto-himself-helped-by-zuma-to-hide-pure-crime-linked-to-r600m-spy-network-20220624">Arthur Fraser</a>, for <a href="https://www.dailymaverick.co.za/article/2017-12-05-the-principal-agent-network-pan-dossier-zuma-and-mahlobo-knew-about-arthur-frasers-rogue-intelligence-programme/">his involvement</a> in the <a href="https://www.dailymaverick.co.za/article/2017-12-06-the-principal-agent-network-pan-dossier-part-2-bugging-the-auditors-dumb-and-dumber/">Principal Agent Network</a>. This was a covert intelligence collection entity outside the State Security Agency. It has been controversial for over a decade after investigations pointed to the abuse of funds.</p>
<p>The second person is former deputy director-general of counter-intelligence <a href="https://www.dailymaverick.co.za/article/2021-07-15-confessions-of-a-dangerous-mind-a-divinely-inspired-zuma-spy-thulani-dlomo/">Thulani Dlomo</a>. He was responsible for the <a href="https://www.news24.com/news24/southafrica/investigations/ssa-declassified-i-networks-which-looted-r15bn-from-spy-agency-still-in-place-as-investigations-collapse-20220221">Chief Directorate Special Operations</a>, a covert structure which the report says ran irregular projects and operations that could well have been unlawful.</p>
<p>The most significant of these was <a href="https://www.news24.com/news24/southafrica/investigations/ssa-declassified-illegal-operation-mayibuye-allegedly-siphoned-millions-from-ssa-to-jacob-zuma-20220226">Project Mayibuye</a>, a collection of operations designed to counter threats to state authority. In practice, they and others sought to shield Zuma from a growing chorus of criticism of his misrule.</p>
<p>The commission <a href="https://www.gov.za/sites/default/files/gcis_document/202206/electronic-state-capture-commission-report-part-v-vol-i.pdf">found</a> that the project destabilised opposition parties and benefited the Zuma faction in the ruling African National Congress. </p>
<p>The third person is the former minister of state security, <a href="https://www.news24.com/news24/southafrica/news/live-norma-mngoma-david-mahlobo-to-testify-at-state-capture-inquiry-20210409">David Mahlobo</a>. The commission found that he became involved in <a href="https://www.dailymaverick.co.za/article/2021-05-19-former-state-security-minister-david-mahlobo-distances-himself-from-apartheid-assassin-and-jacob-zuma-poisoning-projects/">operational matters</a> instead of confining himself to executive oversight. It also found that his handling of <a href="https://www.dailymaverick.co.za/article/2019-03-09-cash-parcels-to-minister-spying-on-media-and-infiltration-of-anti-zuma-movement-highlighted-in-report-on-sa-spy-agency/">large amounts of cash</a>, ostensibly to fund operations, needed further investigation.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/state-capture-in-south-africa-how-the-rot-set-in-and-how-the-project-was-rumbled-176481">State capture in South Africa: how the rot set in and how the project was rumbled</a>
</strong>
</em>
</p>
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<p>According to the commission, Mahlobo’s predecessor, <a href="https://www.pa.org.za/person/siyabonga-cyprian-cwele/">Siyabonga Cwele</a>, did the same by <a href="https://www.dailymaverick.co.za/article/2019-11-26-how-zuma-and-state-security-minister-cwele-shut-down-2011-investigation-into-the-guptas/">stopping an investigation</a> into the Guptas and their influence on Zuma’s administration.</p>
<p>The commission concluded, based on overwhelming evidence, that Zuma and Cwele did not want the investigation to continue. Had it continued, it could have prevented at least some of the activities that led to the capture of the state by the Guptas and the loss of billions in public money through corruption.</p>
<h2>Recipe for abuse</h2>
<p>The commission also addressed some of the deeper factors that predisposed the <a href="https://nationalgovernment.co.za/units/view/42/state-security-agency-ssa">State Security Agency</a> to abuse.</p>
<p>One of these was the <a href="https://www.news24.com/news24/southafrica/news/merger-of-spy-agencies-led-to-cabinet-ministers-giving-ssa-operatives-illegal-instructions-20210915">amalgamation</a> of the domestic intelligence branch, the National Intelligence Agency, with the foreign branch, the South African Secret Service, into a new entity, the State Security Agency, in 2009.</p>
<p>The commission found that the amalgamation had disastrous consequences, as it allowed most of the abuses it examined to happen. The two entities were merged in terms of a presidential proclamation. Yet the constitution <a href="https://www.justice.gov.za/legislation/constitution/SAConstitution-web-eng-11.pdf">requires</a> intelligence services to be established through legislation. This meant that until <a href="https://www.gov.za/documents/general-intelligence-laws-amendment-act-0">legislation</a> was introduced in 2013, the security agency operated without a <a href="https://pmg.org.za/tabled-committee-report/4715/">clear legal basis</a>.</p>
<p>It was highly centralised, allowing a super-director-general to control all activities. This made abuse easier for an appointee with corrupt intentions. The agency was also based on a state security <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">doctrine</a>, rather than a people-centred doctrine. This doctrinal shift prioritised the protection of the state from criticism, and the president more specifically, rather than the security of society. <a href="https://www.news24.com/news24/southafrica/news/merger-of-spy-agencies-led-to-cabinet-ministers-giving-ssa-operatives-illegal-instructions-20210915">Ministerial political overreach</a> into operational matters heightened the potential for abuse.</p>
<p>The commission also found that the <a href="https://www.parliament.gov.za/committee-details/169">Joint Standing Committee on Intelligence</a>, the <a href="https://www.oigi.gov.za/">Inspector General of Intelligence</a> and the <a href="https://www.agsa.co.za/">Auditor General</a> had failed to exercise proper oversight. This meant the external checks and balances on the State Security Agency were weak to non-existent.</p>
<h2>Weighing the Zondo report</h2>
<p>The struggle for more accountable intelligence has been strengthened through the Zondo report’s exposure of abuses. But many of the findings and recommendations are vague and general. The commission could have been more specific about upgrading the Inspector General’s independence, for instance. Likwewise the Auditor General’s capacity to audit the agency.</p>
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<em>
<strong>
Read more:
<a href="https://theconversation.com/south-africas-state-capture-commission-nears-its-end-after-four-years-was-it-worth-it-182898">South Africa's state capture commission nears its end after four years. Was it worth it?</a>
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<p>The commission could also have made more of the evidence presented to it. And it could have been more categorical about when it thought criminality had occurred. At times, the report does little more than restate the recommendations of previous enquiries.</p>
<p>These include an <a href="https://www.dailymaverick.co.za/article/2017-11-09-spooks-and-spies-the-pan-progamme-arthur-fraser-and-eight-years-of-investigations/">investigation</a> into the Principal Agent Network programme in 2009, providing prima facie evidence of criminality. </p>
<p>Another is the report of the 2018 <a href="https://www.gov.za/sites/default/files/gcis_document/201903/high-level-review-panel-state-security-agency.pdf">High Level Review Panel</a>, which showed that the agency had been politicised and repurposed to benefit Zuma. </p>
<p>An important gap in the Zondo report relates to the <a href="https://www.dailymaverick.co.za/article/2022-07-01-civil-society-organisations-release-boast-report-demand-accountability-for-rogue-spying/">infiltration and surveillance of civil society</a>, and the agency’s broader threat to democracy.</p>
<p>Little is made of the fact that, according to a recently 2017 declassified <a href="https://www.scribd.com/document/580662166/Boast-Report#download&from_embed">performance report</a>, the agency claimed to have infiltrated <a href="https://www.greenpeace.org/africa/en/">Greenpeace Africa</a>, the <a href="https://www.r2k.org.za/">Right2Know Campaign</a>, trade unions and other civil society organs.</p>
<p>The spies masqueraded as activists. They reported back to the agency on supporter strengths, main actors, ideology, support structures and agendas. The report’s author, a security agency member, <a href="https://www.scribd.com/document/580662166/Boast-Report#download&from_embed">boasted</a> about these and other accomplishments, such as infiltrating the social media networks of the Western Cape <a href="http://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1753-59132021000400006">#feesmustfall</a> student movement. </p>
<h2>Looking ahead</h2>
<p>In the preparations to investigate and prosecute wrongdoers responsible for the abuses by the State Security Agency, its infiltration of civil society must not be allowed to fall under the radar. It must receive as much attention as all the cases of grand corruption that are going to keep the <a href="https://www.npa.gov.za/">National Prosecuting Authority</a> busy. </p>
<p>Otherwise, the social forces that could potentially bring deeper and more meaningful changes to society may remain targets of state spying, as <a href="https://www.plutobooks.com/9780745337807/activists-and-the-surveillance-state/">has been the case elsewhere</a>.</p><img src="https://counter.theconversation.com/content/186582/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jane Duncan receives funding from the Open Society Foundation for South Africa and Luminate. She served on the 2018 High Level Review Panel on the State Security Agency. </span></em></p>The commission could have made more of the evidence and been more categorical about when it thought criminality had taken place.Jane Duncan, Professor, Department of Communication and Media, University of JohannesburgLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1612002021-05-24T15:17:59Z2021-05-24T15:17:59ZSouth African law is failing to make sure that ‘shadow directors’ are held accountable<figure><img src="https://images.theconversation.com/files/402114/original/file-20210521-21-1hyjpvl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>South Africa has become notorious for corruption in many of its state-owned entities. In particular there’s been mounting evidence that utilities such as Eskom, which supplies power, and South African Airways were <a href="https://www.theguardian.com/news/2019/jul/11/state-capture-corruption-investigation-that-has-shaken-south-africa">‘captured’</a> when a small group of people influenced the state’s decisions to their own benefit and hijacked state organs to channel public resources their way. </p>
<p>State capture is not unique to South Africa. For example, there have been allegations of state capture in <a href="https://www.eureporter.co/politics/2020/10/08/corruption-and-state-capture-in-bulgaria/">Bulgaria</a>, <a href="https://euobserver.com/beyond-brussels/142279">Hungary</a> and the <a href="https://www.clingendael.org/sites/default/files/2020-10/Policy_Brief_Undermining_EU_enlargement_2020.pdf">Western Balkans</a>.</p>
<p>In South Africa a great deal of evidence has been given to the <a href="https://www.statecapture.org.za/">Zondo Commission of Inquiry</a> into corruption in the country during the Zuma presidency from 2009 to 2018. A major feature of some of the testimony has been about the awarding of contracts by state-owned entities. </p>
<p>Accusations of malfeasance include the awarding of contracts to companies linked to the <a href="https://www.statecapture.org.za/site/information/search/?witness=gupta&search=Search">Gupta</a> family, the influence of third parties in the appointment of directors of state-owned entities, and the mismanagement of key state-owned entities such as <a href="https://www.statecapture.org.za/site/information/search/?witness=eskom&search=Search">the state utility Eskom</a>, <a href="https://www.statecapture.org.za/site/information/search/?witness=SAA&search=Search">South African Airways</a>, <a href="https://www.statecapture.org.za/site/information/search/?witness=Transnet&search=Search">the transport utility Transnet</a> and <a href="https://www.statecapture.org.za/site/information/search/?witness=sabc&search=Search">the South African Broadcasting Corporation</a>. </p>
<p>An intriguing aspect about how decisions were made revolves around the role of their boards, and in particular what influence ‘shadow directors’ had over decisions. It may be arguable that some of those responsible for state capture are shadow directors. </p>
<p>A ‘shadow director’ is someone who secretly influences and controls directors of a company. They lurk in the shadows and hide behind others. Shadow directors don’t take up formal positions on the board. They want to remain anonymous. And avoid being held liable for the company’s actions. </p>
<p>A person may be a shadow director even if they influence and control only some aspects of the company’s business and not the whole business. </p>
<p>In my <a href="http://uir.unisa.ac.za/bitstream/handle/10500/27320/ICCLJ_VOLUME_15_ISSUE_1%20CHAPTER%201.pdf?sequence=1&isAllowed=y">research</a> on shadow directors I have found that the problem in South Africa is that its laws aren’t clear about how they should be managed, and what the accountability structures are around them. They aren’t properly identified as directors, which means that they are able to escape legal responsibility for their influence and control. Due to conflicting authorities and no clear court ruling on this issue, it’s unclear whether shadow directors are governed by the Companies Act. </p>
<p>Holding shadow directors accountable for influencing and controlling directors of a board would deter bad behaviour and improve corporate governance. It would go some way to addressing the issue of corruption and the abuse of state-owned entities for personal gain.</p>
<h2>Directors</h2>
<p>A ‘director’ is defined in South Africa’s Companies Act as a member of the board of a company, and includes anyone who occupies the position of a director. Even if a person is not formally appointed as a director and has another title, such as manager or consultant, under the law they are still considered to be a director. </p>
<p>If someone acts in the role of a director and performs the functions usually performed by a director, they will be subject to the same fiduciary duties as any other director. </p>
<p>These duties include acting in good faith, acting for a proper purpose and acting in the company’s best interests. If a director fails to comply with these duties they will have to account for the losses suffered by the company. </p>
<p>Whether someone is identified as a shadow director depends on the type of decisions they make and how often they are involved in the management of the company. Also relevant is the extent to which their instructions are automatically followed by the board and the scope of their influence. </p>
<p>Shadow directors pose their own set of challenges. The laws of some countries, such as the <a href="https://www.companylawclub.co.uk/shadow-directors">UK</a> and <a href="https://www.accountantsdaily.com.au/business/13117-asic-secures-sentence-against-shadow-director">Australia</a>, ensure that their actions are also open to scrutiny. But South Africa’s Companies Act does not have a definition of a shadow director. This has raised questions about whether or not they are governed by the Act. </p>
<p>Yet another problem is whether professional advisers should be viewed as shadow directors.</p>
<h2>A question of classification</h2>
<p>In my view a shadow director ought to be governed by the Act because the words ‘occupying the position of a director’ should include a person who acts in the position of a director – with or without lawful authority. </p>
<p>A different view is that a shadow director is not a director but is a <a href="https://www.onlinemoi.co.za/Regulation?regulation=38">prescribed officer</a> because of their influence on company decisions. A prescribed officer is not a director but controls and manages the whole or a significant part of the company’s business. </p>
<p>For example, the chief executive officer and chief financial officer are prescribed officers. They have to comply with the same fiduciary duties as directors.</p>
<p>In my view a shadow director should not be classified merely as a prescribed officer for three reasons. </p>
<p>First, to qualify as a prescribed officer, the person must control the whole of the company’s business or a significant part of it. In most cases the influence of a shadow director doesn’t extend this far. This would let them off the hook under the current definition of prescribed officers. </p>
<p>Secondly, a prescribed officer is a person who regularly takes part in the company’s business. This does not accord with the concept of a shadow director.</p>
<p>Thirdly, if shadow directors were prescribed officers, they could escape being declared <a href="https://lnkd.in/dnUxPb3">delinquent</a>. <a href="https://www.researchgate.net/publication/349616907_Notes_Declaring_directors_of_state-owned_entities_delinquent_Organisation_Undoing_Tax_Abuse_v_Myeni/link/608be11392851c490fa7d6ad/download">Delinquency grounds</a> apply to directors, and not to prescribed officers. </p>
<p>Under a delinquency order a person is banned from being a director for at least seven years, or, in very serious cases, for a <a href="http://www.saflii.org/za/cases/ZAGPPHC/2019/957.html">lifetime</a>. </p>
<p>It’s therefore unfair, in my view, to be able to declare ordinary directors – but not shadow directors – delinquent.</p>
<h2>Shadow directors and state capture</h2>
<p>In the context of the inquiry into corruption in South Africa, one potential upshot of holding shadow directors liable for the same duties as ordinary directors is that they would have to account for the losses suffered by a company due to a breach of their duties. </p>
<p>For example, if a shadow director influenced a state-owned entity to award certain contracts to companies associated with them, they could be held responsible for losses suffered by the company due to their breach of the duties to act in good faith, for a proper purpose and in the company’s best interests.</p>
<p>Another upshot is that shadow directors could be held accountable for losses suffered by the company as a result of being a part of fraud committed by the company when the shadow director knew that the act was fraudulent. Where fraud is committed by the company, under the Companies Act a criminal action can be brought against those responsible, resulting in a fine or imprisonment of up to 10 years.</p>
<p>South Africa’s parliament needs to take urgent action to end the uncertainty about whether or not shadow directors are governed by the Companies Act. This will require amending the definition of a ‘director’ in the Companies Act so that it unambiguously recognises shadow directors.</p><img src="https://counter.theconversation.com/content/161200/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rehana Cassim does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The state capture inquiry shows that South Africa’s parliament needs to urgently end the uncertainty about whether or not shadow directors are governed by the Companies Act.Rehana Cassim, Associate Professor in Company Law, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1607232021-05-13T07:25:47Z2021-05-13T07:25:47ZFormer minister’s memoir is a candid critique of South Africa’s political economy<figure><img src="https://images.theconversation.com/files/400062/original/file-20210511-18-qztxk7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Rob Davies, former South African trade and industry minister.</span> <span class="attribution"><span class="source">GCIS</span></span></figcaption></figure><p>A new book by <a href="https://www.pa.org.za/person/robert-haydn-davies/">Rob Davies</a>, a former South African Trade and Industry Minister, provides a candid and detailed insider’s account of the evolution of the country’s post-apartheid political economy.</p>
<p>He makes it clear from the outset that this is a memoir and not an autobiography. But, as one reads on, it becomes obvious that it is impossible to separate his personal experiences from the momentous events that have shaped democratic South Africa.</p>
<p>The book’s fourteen chapters cover topics as varied as the apartheid context, the southern African region, Mozambican socialism plus economic policy in the transition to democracy and in the first democratic administration led by <a href="https://www.sahistory.org.za/article/nelson-mandela-presidency-1994-1999">President Nelson Mandela</a>. It also covers the importance of the governing African National Congress’s (ANC’s) eventful <a href="https://www.sahistory.org.za/article/52nd-anc-national-conference-polokwane-2007">52nd national conference</a> in 2007. It looks at trade policy challenges, too, as well as politics and economics in the era of President Cyril Ramaphosa.</p>
<h2>The early years and ideology</h2>
<p>Early in the book the reader is introduced to the intellectual ideas that moulded Davies’s ideological worldview. His doctoral thesis at the University of Sussex, Britain, examined the relationship between capital, the state and white labour in South Africa.</p>
<p>Under the tutelage of exiled South African Marxist scholar <a href="https://www.sahistory.org.za/people/harold-wolpe">Harold Wolpe</a>, he became a member of a coterie of theorists and scholars. Mostly of Marxist orientation, they were concerned with analysing the relationship between capitalism and apartheid.</p>
<p>Davies’s 11 years in exile in Mozambique, where he worked as a researcher alongside <a href="https://www.sahistory.org.za/people/ruth-heloise-first">Ruth First</a>, an anti-apartheid activist and academic, at <a href="https://www.uem.mz/">Eduardo Mondlane University</a>, gave him direct exposure to Mozambique’s history and socialist model. It also deepened his understanding of the southern African region. He writes frankly about the failures of Mozambican socialism, while highlighting its achievements. </p>
<h2>Critiquing the post-apartheid economy</h2>
<p>The book focuses mostly on economic issues. This is not surprising, given the <a href="https://www.pa.org.za/person/robert-haydn-davies/">author’s long history</a> of dealing with economic matters. He recounts in detail the political and social changes that took place in South Africa following the 1994 elections that <a href="https://www.tandfonline.com/doi/abs/10.1080/04597239308460952?journalCode=tssu20">ended apartheid</a>.</p>
<p>He is critical of economic policy during the first ANC administration. He reserves particular criticism for its macroeconomic policy framework introduced in 1996, the Growth, Employment and Redistribution Strategy (<a href="https://www.gov.za/sites/default/files/gcis_document/201409/gear0.pdf">GEAR</a>).</p>
<p>It was developed “without prior consultation” with any of the ANC’s alliance partners – the <a href="https://www.sacp.org.za/">South African Communist Party</a> and labour federation <a href="http://www.cosatu.org.za/">Cosatu</a>. Davies bemoans that GEAR led to the controversial scrapping of the <a href="https://www.gov.za/sites/default/files/governmentgazetteid16085.pdf">Reconstruction and Development Programme</a>. The radical economic programme was designed to redistribute income, wealth and economic power and, at the same time, stimulate rapid economic growth.</p>
<p>These are valid concerns. Others include the point that GEAR failed to meet its job creation targets. It did not yield desired levels of foreign investment either. But his analysis lacks a nuanced appreciation of the national context. This includes the fact that when GEAR was unveiled, the country was mired in a debilitating <a href="https://www.researchgate.net/publication/41660748_Reflections_on_the_South_African_rand_crisis_of_1996_and_policy_consequences_Centre_for_the_Study_of_African_Economies_Working_Paper_Series_No_97">currency crisis</a>, amid dwindling international confidence. And he doesn’t say whether the policy accomplished anything.</p>
<p>Davies thinks that the debate that pitted the supporters of GEAR against its detractors could be described as “macroeconomic fundamentalism”. The proponents emphasised the need for macroeconomic discipline. Critics argued in favour of an <a href="https://www.econlib.org/library/Enc/KeynesianEconomics.html">expansionist neo-Keynesian economic approach</a>. </p>
<p>What was missing from the debate was </p>
<blockquote>
<p>any profound engagement with the constraints being imposed by the structural characteristics of the productive economy, the changes that were taking place in it and the kind of transformations that were therefore necessary at this level to move to a qualitatively different new growth path capable of addressing the triple challenges of unemployment, poverty and inequality.</p>
</blockquote>
<h2>An opportunity lost</h2>
<p>Davies argues that the ANC’s 52nd conference, and the subsequent ascent of Jacob Zuma to <a href="http://www.thepresidency.gov.za/press-statements/achievements-and-milestones-during-tenure-president-jacob-zuma">the highest political office</a>, represented an opportunity for the radical transformation of the economy. </p>
<p>The focus was on active trade and industrial policies. These included the adoption of strategies for beneficiation (adding value to mineral resources) and localisation (designating that a certain portion of goods be bought locally for government’s infrastructure programmes). The policies were touted as being central to the structural transformation in the productive base of the economy. They were to be joined by an effective land reform programme. </p>
<figure class="align-left ">
<img alt="" src="https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=865&fit=crop&dpr=1 600w, https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=865&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=865&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1086&fit=crop&dpr=1 754w, https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1086&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/400026/original/file-20210511-18-y2zs2h.JPG?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1086&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<p>A “developmental trade policy”, set out in several iterations of the <a href="https://www.gov.za/sites/default/files/gcis_document/201805/industrial-policy-action-plan.pdf">Industrial Policy Action Plan</a>, would alter the structure of the economy, enabling a shift to higher value-added production. It is not evident whether these economic objectives were achieved. </p>
<p>Davies outlines some policy successes. These include significant investments in the automotive, pharmaceutical and agro-processing sectors. Others include retention of thousands of jobs in clothing and textiles. There were also notable advances in metals fabrication industries. </p>
<p>Even so, it is questionable whether these industrial policies succeeded substantially <a href="https://www.dailymaverick.co.za/article/2020-07-09-de-industrialisation-acceleration-sa-manufacturing-output-almost-halved-in-april-2020/">to stem the tide of deindustrialisation</a> that has hobbled the post-apartheid economy.</p>
<p>Davies seems to concede this reality when he states that</p>
<blockquote>
<p>we had not yet remotely reached the stage of having sufficient impact decisively to create conditions for a new, productive, sector-driven inclusive growth path.</p>
</blockquote>
<h2>Trade diplomat</h2>
<p>As a public servant he was not only hardworking but had an impressive command of policy and technical detail. This is laid bare when he discusses trade policy challenges. His good understanding of the global political economy, coupled with his mastery of policy detail, made him an effective trade diplomat.</p>
<p>His vast knowledge, sharp insights and extensive experience stood him in good stead. He led South Africa’s charge in dealing with intractable problems within the <a href="https://www.wto.org/">World Trade Organisation</a> and renegotiating the <a href="https://agoa.info/about-agoa.html">Africa Growth and Opportunity Act</a> with the US. He also led in negotiating <a href="https://ec.europa.eu/trade/policy/countries-and-regions/development/economic-partnerships/">Economic Partnership Agreements</a> with the EU and engaged with counterparts in the <a href="https://www.investopedia.com/terms/b/brics.asp">Brazil, Russia, India, China and South Africa (BRICS)</a> grouping.</p>
<p>His concerns about what stalled progress within the <a href="https://www.sacu.int/">Southern African Customs Union</a> between South Africa, Botswana, Lesotho, Namibia and Eswatini deserve serious attention.</p>
<p>Like his colleagues within the <a href="https://www.sacp.org.za/">South African Communist Party</a> and <a href="http://www.cosatu.org.za/">Cosatu</a>, Davies was initially hopeful that the Zuma administration (<a href="http://www.presidency.gov.za/profiles/president-jacob-zuma-0">May 2009 to February 2018</a>) would usher in a new era of economic and social progress. He is disappointed with what it turned out to be.</p>
<p>He points out that in spite of some advances, including those in the area of HIV/AIDS policy, the</p>
<blockquote>
<p>Zuma presidency ended up being an extremely destructive demobilisation of state capacity through rampant looting.</p>
</blockquote>
<p>Davies cannot delink himself from the historical events in which he took part. As his earlier <a href="https://www.biznews.com/interviews/2016/05/06/how-world-sees-sa-bbc-hardtalk-rips-into-zuma-loyalist-ti-min-rob-davies">cringeworthy interview</a> with the BBC’s Stephen Sackur showed, he missed a chance to speak out more forcefully against economic mismanagement and <a href="https://pari.org.za/betrayal-promise-report/">state capture</a>.</p>
<h2>Book’s significance</h2>
<p>Overall, this is a thoughtful, well-researched and informative book. It is a substantive, and in some respects original, contribution to the post-apartheid political economy literature. </p>
<p>The writing style is somewhat turgid but this is eased by the fascinating anecdotes. The book will serve as a valuable resource to everyone who is interested in South Africa’s contemporary political economy.</p><img src="https://counter.theconversation.com/content/160723/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mills Soko does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Rob Davies is critical of economic policy, starting with the Mandela administration. He reserves particular criticism for its macroeconomic policy framework introduced in 1996.Mills Soko, Professor: International Business & Strategy, Wits Business School, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/929402018-03-08T14:17:17Z2018-03-08T14:17:17ZCan Ramaphosa centre the ANC and quell opposition parties?<figure><img src="https://images.theconversation.com/files/209526/original/file-20180308-30979-kg74rk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African President Cyril Ramaphosa in parliament.</span> <span class="attribution"><span class="source">Brenton Geach/EPA</span></span></figcaption></figure><p>These are early days for the new <a href="https://mg.co.za/article/2018-03-01-ramaphosa-plays-the-hand-he-was-dealt">Cyril Ramaphosa-led government</a> in South Africa. Two crucial and inter-related strategic challenges face the new President: to consolidate support within the African National Congress (ANC), and to consolidate the ANC’s position as the dominant party in time for the 2019 national elections, seeking to reverse the decline it had experienced under Jacob Zuma.</p>
<p>Dealing with internal ANC issues is the most difficult and the foundation for the others. Zuma is <a href="https://theconversation.com/zumas-time-is-up-but-what-does-it-mean-for-south-africa-91873">out of power</a>, and will not be back. Even though his departure will weaken their capacity to work as a coherent force, it will <a href="https://theconversation.com/the-zuma-regime-is-dead-but-its-consequences-will-linger-for-a-long-time-92066">take time</a> to dismantle the alliance that made up disparate elements he built around him. </p>
<p>Ramaphosa has started the job by <a href="https://mg.co.za/article/2018-02-26-cyril-ramaphosa-cabinet-reshuffle-reaction-anc-da-eff-ifp">removing</a> the most obvious symbols of Zuma’s alliance with the <a href="http://www.bbc.com/news/world-africa-22513410">Gupta family</a> who stand accused of being the major perpetrators of <a href="https://qz.com/825789/state-capture-jacob-zuma-the-guptas-and-corruption-in-south-africa/">state capture</a>. These include former ministers such as <a href="http://ewn.co.za/Topic/Communications-Minister-Faith-Muthambi">Faith Muthambi</a> who ran public administration and <a href="http://ewn.co.za/Topic/Mosebenzi-Zwane">Mosebenzi Zwane</a> who had been given the minerals portfolio. Both became notorious through combining incompetence and corruption, and have no independent power based within the ANC. </p>
<p>Others who had some internal support were demoted into less prestigious and powerful positions – <a href="http://www.huffingtonpost.co.za/2018/02/26/bathabile-dlamini-for-women-what-the-actual-hell-say-tweeters_a_23371557/">Bathabile Dlamini</a> who has been made minister of women and children and <a href="https://mg.co.za/tag/malusi-gigaba">Malusi Gigaba</a> who is back at home affairs come to mind. </p>
<p>Picking fights carefully so as not to tackle all adversaries simultaneously is a wise political strategy. Having won with a small margin does not allow him to go ahead with massive purges, an unwise course of action in any event.</p>
<p>As far as trying to forge the ANC into a cohesive force again, Ramaphosa’s real challenge remains closer to the ground. Among local ANC members and representatives an entrenched ethos sees positions of power as key to material benefit and jobs for relatives, friends and political allies. Tackling this is not going to be easy and it’s not clear that Ramaphosa will be able to do it – certainly not in the immediate term.</p>
<h2>ANC as the dominant party?</h2>
<p>His urgent task is to address the <a href="https://theconversation.com/jacob-zumas-demise-is-bad-news-for-south-africas-opposition-parties-91771">electoral challenges</a> posed by the two main opposition parties, the Democratic Alliance (DA) and the Economic Freedom Fighters (EFF). Both cater to different constituencies disillusioned. </p>
<p>The DA’s main policy platform focuses on good governance and rational management. The EFF’s on <a href="https://www.fin24.com/Opinion/is-julius-malemas-eff-a-nation-builder-or-a-wrecking-ball-20180307">radical social change</a>. Their shared opposition to the ANC has made them strange bedfellows in a number of key municipalities, thus removing the ANC from power. But this has already begun to unravel in the wake of Ramaphosa’s ascendancy. In <a href="https://www.dailymaverick.co.za/article/2018-03-04-nelson-mandela-bay-effs-attempt-to-remove-trollip-ushers-in-a-new-unstable-era-for-coalition-politics/#.WqEhVWpubIU">Nelson Mandela Bay</a> the EFF has withdrawn support for the DA, its dominant coalition partner. More political shifts like this may take place in preparation for the next elections.</p>
<p>Ramaphosa can undercut the DA threat by his (re-)appointment of reputable and fiscally-responsible people. He has already done so in the National Treasury with <a href="https://theconversation.com/ramaphosa-has-chosen-a-team-that-will-help-him-assert-his-authority-92538">Nhlanhla Nene</a> and at public enterprises with <a href="https://www.fin24.com/Economy/pravin-gordhan-back-this-time-as-minister-of-public-enterprises-20180226">Pravin Gordhan</a>. And eliminating blatant cases of nepotism and corruption will also <a href="https://www.businesslive.co.za/bd/opinion/2018-03-01-why-a-complacent-da-could-lose-cape-town-to-anc/">steal DA votes</a> for the ANC.</p>
<p>But tackling the EFF is a more complicated task, as illustrated by the recent reemergence of the land issue, which is now the <a href="https://m.news24.com/SouthAfrica/News/if-you-see-a-beautiful-piece-of-land-take-it-malema-20170228">its clarion call</a>. Can this issue affect the ANC’s electoral prospects? What seems to be Ramaphosa’s strategy in the face of this potential threat? </p>
<p>Land isn’t a new issue, having been a material and symbolic <a href="http://www.sahistory.org.za/topic/land-act-dispossession-segregation-and-restitution">concern for centuries</a>. Colonial conquest and settlement centred on the acquisition of land by force, which played a crucial role in driving indigenous people into the labour market in the 19th and 20th centuries. Addressing the consequences of the <a href="http://www.sahistory.org.za/topic/natives-land-act-1913">1913 Natives Land Act</a> was a formative experience for the ANC, which had been <a href="http://www.sahistory.org.za/topic/anc-origins-and-background">created</a> in the previous year, and remains a challenge to this day. </p>
<p>Land dispossession entrenched the distinctive feature of the South African economy: <a href="http://www.sahistory.org.za/archive/the-migrant-labour-system">migrant labour</a> as the foundation for black deprivation and white prosperity. </p>
<p>In 1994 a <a href="http://www.sahistory.org.za/article/land-restitution-south-africa-1994">land restitution process</a> was put in place by the newly elected ANC government. But it hasn’t met the intended targets for a number of reasons. These have included bureaucratic inefficiency, inadequate support structures for small-scale farmers (in financing, marketing, skill development), conflicts among beneficiaries, corruption and limited interest due to the meagre political weight of claimants.</p>
<p>While it is clear that the cost of land due to the need to offer compensation is not the main problem hampering land reform, it has become symbolic of the obstacles facing the process. When the ANC <a href="https://www.businesslive.co.za/bd/national/2018-02-27-parliament-adopts-effs-land-claims-motion-but-anc-seeks-amendments/">joined</a> the EFF in parliament in referring the compensation clause for review, it recognised that opposing the motion would be risky, allowing the EFF to speak on behalf of land-hungry people. </p>
<p>It showed that the land conundrum is <a href="https://m.news24.com/Columnists/MaxduPreez/real-action-on-land-needed-to-counter-extreme-eff-rhetoric-20180306">electorally dangerous</a> for the ANC.</p>
<p>On the other hand, supporting the motion but amending it to conform to other imperatives (stable economy, increased agricultural production, food security) could keep the ANC ahead of the political challenge while retaining its ability to shape the outcome of the review to suit its general policy direction. </p>
<p>Meeting the challenges from the opposition parties will strengthen the ANC’s dominance and Ramaphosa’s control internally. The internal and external challenges could therefore be met in an integrated way. In a sense, this would allow it to return to the position it had enjoyed during Nelson Mandela’s tenure, exercising hegemony over state and society. </p>
<p>But the road is still long and full of obstacles.</p><img src="https://counter.theconversation.com/content/92940/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ran Greenstein does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Meeting the challenges from the opposition will strengthen the ANC’s dominance. How well its new leadership copes will become clearer over the next few months.Ran Greenstein, Associate Professor of Sociology, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/920172018-02-19T14:24:28Z2018-02-19T14:24:28ZRamaphosa must fuse fixing broken institutions and economic policy<figure><img src="https://images.theconversation.com/files/206926/original/file-20180219-75994-1a0e10e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's new President Cyril Ramaphosa. Rebuilding institutions will be key.</span> <span class="attribution"><span class="source">Reuters/Gianluigi Guercia</span></span></figcaption></figure><p>The state of the nation speech <a href="http://ewn.co.za/2018/02/16/must-read-president-ramaphosa-s-state-of-the-nation-address">delivered</a> by South Africa’s new president Cyril Ramaphosa was designed to project an image of hope and change. The new head of state emphasised the fight against corruption, improved governance of state owned enterprises, expropriation of land without compensation and the rebuilding of the manufacturing sector. </p>
<p>But Ramaphosa and his incoming team are probably well aware that they face the challenge of rebuilding the institutions that were destroyed during the Jacob Zuma area. This is confirmed by references to the appointment of a new board for the power utility Eskom and a commission of inquiry into the South African Revenue Services.</p>
<p>The challenge that will face Ramaphosa’s administration is how to rebuild the institutions as the centrepiece of a new economic policy. The problem is that institution building and economic policy making in South Africa have, until now, been kept separate. Institution building is about rule making and governance. Economic policy is about maintaining macroeconomic stability. The groups of experts who cluster around these two focus areas find it hard to understand each other. This will have to change if Ramaphosa’s promises are to be realised.</p>
<p>Going forward it will be necessary to address institutional reform as an economic strategy. </p>
<p>The state of the nation address did not achieve this synthesis. The dualism persists in the way in which Ramaphosa kept institutional reform and economic policy separate. For example, he promised a range of interventions, including job creation, land reform, improved education and health insurance. But if past policies are followed and fiscal expenditure remains pegged at around 60% of GDP, will there be sufficient cash for all the action items? And can this ceiling be breached without institutional reforms that drastically reduce corruption and so improve developmental and economic impacts?</p>
<h2>Institutional meltdown under Zuma</h2>
<p>During Thabo Mbeki’s era the focus was on macroeconomic stabilisation. In contrast the Zuma administration focused on a specific set of institutions – state owned enterprises. Their procurement budgets were identified as the key levers for building a black industrial class not dependent on white capital. This is what became the core ideological focus of <a href="https://theconversation.com/the-odd-meaning-of-radical-economic-transformation-in-south-africa-73003">“radical economic transformation”</a>.</p>
<p>South Africans now know that <a href="http://pari.org.za/wp-content/uploads/2017/05/Betrayal-of-the-Promise-25052017.pdf">this also created the conditions</a> for rent seeking and state capture. And while this institutional turn was under way for nefarious reasons, the country’s National Treasury became the champion of macroeconomic stability. This was why the Gupta family felt it important enough <a href="http://ewn.co.za/2017/02/17/mcebisi-jonas-sticks-to-his-version-in-gupta-bribery-claims">to offer</a> the then deputy minister Mncebisi Jonas R600 million to take the top job in a bid to engineer its capture.</p>
<p>The institutional focus during the Zuma years had nothing to do with institution building. Indeed, <a href="https://theconversation.com/how-zuma-has-used-the-capture-of-south-africas-state-institutions-to-stay-in-power-68175">quite the opposite</a>. Zuma presided over no less <a href="http://www.huffingtonpost.co.za/2017/10/17/jacob-zuma-is-presiding-over-his-12th-cabinet-after-tuesdays-shock-reshuffle-is-it-a-state-of-organised-chaos_a_23246216/">than 12 cabinet reshuffles</a>. With every one came changes in the top echelons of government departments and agencies. </p>
<p>The average length of service of top officials in a particular position during this period was six to nine months. This, coupled with boards of state owned enterprises being stuffed with incompetent loyalists, drove the institutional melt down that the Ramaphosa administration now faces. The biggest casualty was institutional memory. </p>
<p>If Zuma wants to know what <a href="https://www.iol.co.za/news/politics/zuma-what-have-i-done-wrong-13283612">he did wrong</a>, it was to allow this wanton destruction of state capacity to occur without restraint.</p>
<p>The capture of state owned and key state agencies so that they could be repurposed has left them moribund. Examples abound. They include Eskom, Transnet, South African Airways, the South African Revenue Services, the Department of Water and Sanitation. Many local governments fell prey, too. </p>
<h2>What economic policy needs to be</h2>
<p>What South Africa needs now is a dedicated focus on investment-led inclusive and sustainable economic growth aimed at building a well-being economy. </p>
<p>But economic growth that benefits all South Africans won’t be achieved if investors are focused on short-term capital gains. The <a href="https://www.forbes.com/sites/stevedenning/2014/06/03/why-financialization-has-run-amok/#6add1a0c3d7d">financialisation</a> of the economy – the exponential growth of the financial sector – contradicts what long-term development requires. The country’s development finance institutions survived the Zuma years relatively unscathed. This is particularly true for the Development Bank of Southern Africa and the Industrial Development Corporation. They need to be refinanced and repositioned at the centre of economic reconstruction.</p>
<p>Rebuilding the manufacturing sector will require complex institutional reconfigurations. This will involve linking public investment in innovation to private long-term investments in new value chains, to skills development and market reforms, and to targeted tariff increases to protect nascent industries. </p>
<p>Who will do this kind of work? Merging the departments of trade and industry, economic development and small business would be a good start. But it is questionable whether government officials are the best people to do this kind of sensitive institutional work. Organisations like development finance institutions or university-coordinated partnerships would be better. </p>
<h2>The way forward</h2>
<p>South Africa has celebrated the defence of its constitutional democracy. But the harsh reality is that the country faces development challenges that have rarely been successfully addressed within a democratic framework elsewhere in the world. Most countries that have succeeded in supplanting a powerful and wealthy elite with a more equitable and democratic order have gone through a repressive period that resulted in severe curtailments of democratic freedoms. </p>
<p>The only way South Africa can pull this off is if it fundamentally rethinks the interface between economic policy making and institution building. Radical new institutional innovations that mobilise new investment flows involving creative partnerships between public, private and nonprofit sector organisations will be required. </p>
<p>There are hundreds of examples of this approach when it comes to the revitalisation of blighted inner city districts. Other examples include small cities that meet all their energy needs from renewables by collaborating across sectors to generate innovations. </p>
<p>Yes, a national social compact will help frame this, but the country doesn’t need another elite pact. It needs a collective effort to mobilise creativity on a massive scale across all sectors – and all walks of life.</p><img src="https://counter.theconversation.com/content/92017/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Mark Swilling receives funding from the National Research Foundation.</span></em></p>South Africa has successfully defended its constitutional democracy. But the harsh reality is that the country still faces development challenges.Mark Swilling, Distinguished Professor of Sustainable Development, Stellenbosch UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/906992018-01-26T10:23:40Z2018-01-26T10:23:40ZIs South Africa seeing a return to the rule of law? More evidence is needed<figure><img src="https://images.theconversation.com/files/203448/original/file-20180125-102717-1juzjs5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Jacob Zuma and Deputy President Cyril Ramaphosa. Which one of them does the criminal justice system support?</span> <span class="attribution"><span class="source">EPA-EFE/Cornell Tukiri</span></span></figcaption></figure><p>It appears as if the Gupta family, known for being politically connected to South Africa’s President Jacob Zuma and accused of “state capture”, have not had a good start to the year. The country’s Asset Forfeiture Unit has <a href="https://www.enca.com/south-africa/money-laundering-in-eskom-state-capture-case-unfolds">indicated</a> that they’re pursuing 17 cases to recover R50 billion linked to state capture and corruption. The unit, which falls under the country’s National Prosecuting Authority, is reportedly going after the Gupta family and their associates.</p>
<p>The phenomenon of “state capture” in South Africa epitomises unconstitutional conduct. It has involved private interests using illegal means to gain influence over public representatives or state officials with the aim of getting them to take decisions that benefit both parties but compromise the public interest and the constitutional integrity of state institutions. </p>
<p>Capturing the criminal justice system is critical to those pursuing the state capture agenda: it becomes a self-fulfilling prophecy in the sense that it’s aimed at securing protection against any criminal prosecution. In turn this creates a favourable environment for ongoing state capture. </p>
<p>The question then is whether the latest developments of possible charges and asset seizures requested by the NPA against Gupta related companies amount to a paradigm shift? </p>
<p>To answer this question we need to keep in mind four factors: the rule of law, the relationship between politics and the criminal justice system and the professional independence of the country’s prosecuting system. In addition, it’s important to remember that putting a stop to state capture requires a myriad of actors to play their part.</p>
<p>Other countries have faced this predicament. Examples of investigations with explosive political implications include the FBI’s <a href="https://www.vanityfair.com/news/2017/02/james-comey-fbi-director-letter">probe</a> into Hillary Clinton’s e-mails days before the 2016 American presidential election and the Robert Mueller <a href="http://www.time.com/4828081/robert-mueller-special-counsel/">special investigation</a> into possible Russian interference in the US election. </p>
<p>The difference in South Africa is that the democratic checks and balances to prevent long-term harm are not yet fully consolidated.</p>
<h2>The rule of law</h2>
<p>State capture and the rule of law are mutually exclusive. This is because the rule of law <a href="https://constitutionallyspeaking.co.za/transcript-chief-justice-mogoeng-on-the-rule-of-law-in-south-africa/">depends on</a> effective judicial independence and incorporates the separation of powers principle. </p>
<p>South Africans have welcomed the latest developments because they believe they will strengthen the rule of law. For many this principle is sacrosanct because it’s part of a democracy as well as quality government. In principle it insists on equality before the law for all, and no exceptional treatment. </p>
<p>It also confirms that all disputes in society involving constitutional or legal principles, governance matters and private matters affecting legal rights must – in the final instance – be resolved by judicial means. </p>
<p>In addition, the rule of law confirms that all executive and administrative actions are subject to judicial adjudication or review. </p>
<p>A more complex issue is how the judiciary and criminal justice system can become entangled in political dynamics. How should a government relate or interact with its criminal justice component? What is the acceptable norm? On the one hand it is part of government. On the other it has to be independent. </p>
<p>The criminal justice system is immensely attractive to politicians in power who want to use its investigative and intelligence capacity to deal with political foes. This has certainly been the case in South Africa over the past decade. </p>
<p>The question is whether the latest actions taken by the NPA are a continuation of the abuse of its power, or the beginning of a genuine rule of law regime. </p>
<p>The new president of the African National Congress President Cyril Ramaphosa <a href="http://ewn.co.za/2018/01/18/ramaphosa-urges-npa-to-act-with-urgency-against-corruption-state-capture">has said</a> that he wants the NPA to act swiftly against those implicated in state capture. This is significant given that developments since the early 2000s have compromised the independence of South Africa’s investigative and prosecutorial institutions. </p>
<p>But South Africans should be cautious about uncritically accepting the latest moves as a new-found sense of independence. Is it not simply a change in allegiance from Zuma to the new ANC leadership? </p>
<p>Over the past 10 years the country’s criminal justice system has been exploited by the government to deal mainly with internal ANC factional dynamics. The country’s Revenue Service, which also has investigative and semi-judicial powers, has also been drawn into these dynamics. This is <a href="http://www.2oceansvibe.com/2017/11/06/five-takeaways-from-jacques-pauws-the-presidents-keepers/">graphically captured</a> in the book The President’s Keepers written by investigative journalist Jacques Pauw.</p>
<p>There are a number of examples of the criminal justice system being exploited for political ends. One of the most prominent examples was the 2007 <a href="http://www.enca.com/south-africa/timeline-the-spy-tapes-saga">“spy tape”</a> saga. This involved taped conversations between former NPA and Scorpion officials in which the timing of Zuma’s corruption charges were discussed. In 2009 the tapes were appropriated by the National Director of Public Prosecutions as a justification to withdraw the charges because the conversations politically compromised the NPA. This, on its own, was an extraordinary self-indictment.</p>
<p>Another example was the Hawks and NPA <a href="https://www.dailymaverick.co.za/article/2016-10-05-sars-wars-rogue-reclaiming-the-narrative-from-the-inside-out/#.Wmr-v6iWbIU">investigations</a> against Finance Minister Pravin Gordhan and SARS officials responsible for tax crime investigations. This was meant to neutralise the threat posed by the tax authority to Zuma’s networks. </p>
<p>The reverse side of this trend was numerous court judgements initiated by opposition parties, NGOs and foundations to counter executive actions deemed to be unconstitutional and to challenge parliamentary procedures or prosecutorial decisions. Often the judiciary landed up <a href="https://www.iol.co.za/business-report/economy/sassa-concourt-ruling-broadly-welcomed-8228466">reprimanding</a> the criminal justice system.</p>
<h2>A paradigm shift?</h2>
<p>The NPA’s new approach to the Guptas should not be seen in isolation. Other important institutions are playing their part in challenging bad behaviour.</p>
<p>For example, a parliamentary portfolio committee is making impressive inroads into poor governance and corrupt behaviour at the state power utility <a href="https://www.news24.com/SouthAfrica/News/threats-pile-up-from-eskom-inquiry-20171126-2">Eskom</a>. </p>
<p>In the private sector South Africa’s main commercial banks have closed the bank accounts of the company owned by the Guptas, Oakbay Energy and Resources. Internationally companies implicated with the Guptas such as Bell Pottinger, McKinsey, KPMG have been called to account.</p>
<p>The international business response has been followed by court orders for the seizure of company assets. The prosecution of individuals could be next. This will be complex because in these situations it’s difficult to know who to prosecute when the scale of involvement is so widely spread.</p>
<p>Any prosecutions will have to satisfy the public’s quest for justice. They will also have to serve as a deterrent against a repetition of the mismanagement, criminal behaviour and political complicity in hijacking government institutions. </p>
<p>The main objective should be to restore public confidence in key institutions that make up the criminal justice system. These include the Hawks, NPA, state and crime intelligence and the revenue service. It is a huge task, not least because the NPA is caught in the shifting power relations between Zuma and Ramaphosa. This makes its mandate to act without “fear or favour” a Herculean task. </p>
<p>The positive side is that the judiciary is not politically compromised in the same way.</p><img src="https://counter.theconversation.com/content/90699/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dirk Kotze does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Steps are being taken to lay charges and seize assets of people and companies allegedly involved in corruption in South Africa.Dirk Kotze, Professor in Political Science, University of South AfricaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/844782017-09-21T15:48:16Z2017-09-21T15:48:16ZLessons from KPMG: be on guard, South Africans are on your case<figure><img src="https://images.theconversation.com/files/187066/original/file-20170921-21005-r60q7w.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South African protesters hold placards as they march against corruption.</span> <span class="attribution"><span class="source">Reuters/Siphiwe Sibeko</span></span></figcaption></figure><p>Moses came down from the mount with tablets inscribed with 10 commandments. Most of us know (most of) them, and most of us fail to live by (most of) them. But if Moses had turned them over and looked in the fine print on the back, he’d have found the 11th Commandment: </p>
<blockquote>
<p>Don’t get caught.</p>
</blockquote>
<p>That in essence summarises the rise and fall of the South African arm of the international accounting firm <a href="https://home.kpmg.com/za/en/home.html">KPMG</a> which has been <a href="https://www.timeslive.co.za/news/south-africa/2017-09-20-darkness-descends-on-kpmg/">caught</a> with its hands in the slush fund jar. It stands accused of <a href="https://www.dailymaverick.co.za/article/2017-09-20-analysis-unchartered-territory-kpmg-zuptas-and-the-tainting-of-chartered-accountancy-in-sa/">taking money from companies</a> owned by the politically connected Gupta family.</p>
<p>Even more damaging is the charge that it submitted formal reports “confirming” that a “rogue” unit was operating inside the South African Revenue Service (SARS) – <a href="https://www.timeslive.co.za/politics/2017-09-15-kpmg-cans-sars-rogue-unit-report-apologises-to-gordhan/">accusations</a> that were used as the smoking gun to remove ministers and senior public officials who were seeking to hold the line against state capture.</p>
<p>KPMG has miraculously grown a conscience. Suddenly – having broken the 11th commandment – it was reborn as a hand-wringing, apologetic company living up to high ethical standards. It was now willing to <a href="https://www.timeslive.co.za/sunday-times/business/2017-09-15-nine-kpmg-senior-executives-quit-over-gupta-scandal/">fire</a> its CEO and some senior managers, to reject its own findings and to <a href="https://mg.co.za/article/2017-09-15-kpmg-to-donate-r40m-it-earned-in-fees-from-gupta-related-entities-to-ngos">“donate”</a> Gupta-company earnings to education and anti-corruption NGOs. The latter gesture was a revolting display of supine reprehensibility – we got caught in corrupt deals so we’ll hand the profits over to anti-corruption NGOs. Really? Go to jail would be a better outcome.</p>
<p>KPMG isn’t alone. Throughout South Africa’s <a href="https://www.opensecrets.org.za/corruption-in-south-africa-from-apartheid-to-zuma/">history</a>, and across the globe, the litany of private sector corruption is breathtaking. </p>
<h2>Private sector corruption</h2>
<p>South Africans can recall an unending litany of private sector corruption. In the recent past, there was the case of Tiger Brands making <a href="https://www.moneyweb.co.za/archive/tiger-brands-admits-to-bread-pricefixing-pays-fine/">bread more expensive</a> so the poor would pay more to eat. Tiger Brands paid a fine and carried on trading. And a clutch of major construction firms were found <a href="http://column.global-labour-university.org/2013/10/a-lesson-from-south-africa-are.html">looting monies</a> for the construction of stadiums for the 2010 Fifa World Cup in South Africa. They also paid fines and carried on building. The list continues. </p>
<p>The private sector, contrary to those who believe that ‘market forces’ will regulate the ethics of capital, is not taking a strong line against corruption. Those on the front line include, more recently, the portfolio committees in parliament, and previously, the Public Protector and a dwindling cluth of Ministers, MECs and the like. </p>
<p>NGOs such as <a href="http://www.corruptionwatch.org.za/">Corruption Watch</a>, the <a href="http://www.seri-sa.org/">Socio-Economic Rights Institute of South Africa</a> and the <a href="http://www.casac.org.za/">Council for the Advancement of the South African Constitution</a>, have by a long distance, been the most vocal campaigners in the area, and academics have worked with them to <a href="http://pari.org.za/betrayal-promise-report/">uncover</a> the scale and identify the perpetrators of corruption. The media has also played a <a href="http://amabhungane.co.za/#">massive part</a> in exposing corruption.</p>
<p>So let’s not fool ourselves that the private sector has set a benchmark for anything more than export-class venality.</p>
<p>South Africa’s <a href="https://theconversation.com/africa/search?utf8=%E2%9C%93&q=state+capture">state is corrupt</a> – “captured” makes it sound as if this occurred against its will. But - it has found a multitude of willing partners in the private sector. The match between corrupt state and corrupt private sector is perhaps South Africa’s most functional display of <a href="http://ewn.co.za/2017/06/13/mps-debate-willing-buyer-willing-seller-policy-in-land-reform">“willing buyer, willing seller”</a>.</p>
<p>KPMG executives have not set any benchmark for probity, as claimed by some – they simply acted when they got caught. Their focus was on maximising profits, even if it meant signing off on the use of public funds for a <a href="http://www.biznews.com/guptaleaks/2017/06/30/gupta-wedding-taxpayers-kpmg/">private Gupta wedding</a> (among other sins of commission), and now buying their way out of the mess with a few heads rolling and dirty money being donated to NGOs. If this is the standard for the private sector, South Africans are in more serious trouble than initially thought. </p>
<p>The KPMG <a href="https://www.dailymaverick.co.za/article/2017-09-15-kpmg-weak-apology-suggests-company-saw-no-evil-heard-no-evil-therefore-did-no-evil/">“apology”</a> can’t come close to compensating for the damage done. Its report “confirming” that a rogue unit had operated in the South African Revenue Services fuelled developments towards state capture and triggered events that have had a disastrous impact on the country. These included the axing of ministers, deputy Ministers, and the subsequent haemorrhage of senior public servants from the state. </p>
<p>Everyone in South Africa is paying for the sins of KPMG.</p>
<h2>Holding power to account</h2>
<p>Governance is about the distribution of power in society, and the ability of citizens to hold power to account. This requires an engaged citizenry – whether in NGOs, ratepayer associations, street or block committees or faith-based organisations – who are sufficiently organised to call officials to account. </p>
<p>What is fascinating about South Africa is how engaged its citizen are. They kicked out the ruling party from running cities after just two decades of democracy and they’ve given the middle finger to <a href="http://www.enca.com/south-africa/e-toll-drive-slow-%E2%80%98-resistance-growing%E2%80%99">e-tolls</a>. They don’t behave the way they are told to. And they’ve reached a tipping point. When South Africans of all shapes, colours, sizes, creeds share simply being <em>gatvol</em> (fed-up), there’s trouble.</p>
<p>Ask the British public relations firm <a href="https://www.businesslive.co.za/bd/companies/2017-09-12-bell-pottingers-british-business-collapses-after-south-african-scandal/">Bell Pottinger</a> what it feels like. The company faces foreclosure following a concerted campaign - domestically and abroad - to shame it for stirring racial hatred. </p>
<p>Ask the Guptas <a href="https://www.dailymaverick.co.za/article/2017-09-21-bank-of-baroda-what-next-for-the-soon-to-be-unbanked-guptas?utm_medium=email&utm_campaign=Afternoon%20Thing%2021%20September%202017%20Chamber%20of%20Commerce&utm_content=Afternoon%20Thing%2021%20September%202017%20Chamber%20of%20Commerce+CID_e5f871ce65510d308e294e0c3db99f65&utm_source=TouchBasePro&utm_term=Bank%20of%20Baroda%20bails%20on%20Guptas">how it feels</a> now that all of South Africa’s banks have said they aren’t willing to touch their money. </p>
<p>South African residents and citizens have become acutely aware that they’ve been screwed. By many in the state, to be sure. But by as many or more in the private sector, for decades. And they’re sick of it. </p>
<p>The world is watching – South Africans brought down Bell Pottinger. They’re now going after the likes of McKinsey, KPMG and SAP, all of these companies tangled up by <a href="http://www.biznews.com/thought-leaders/2017/09/18/john-mulcahy-sa-kpmg-mckinsey-sap/">allegations</a> of corruption. </p>
<p>The only way South Africans will ever get governance and accountability is by being organised, vocal, obstreperous, and demanding. So keep it this way – private and public sector are both on terms. And South Africans will hold them accountable, or if necessary, break them.</p><img src="https://counter.theconversation.com/content/84478/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>David Everatt does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The South African arm of the international accounting firm KPMG has learnt the hard lesson: Don’t break the 11th commandment - don’t get caught. That’s because South Africa’s citizens are fed up with corruption.David Everatt, Head of Wits School of Governance, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/800092017-06-25T10:01:03Z2017-06-25T10:01:03ZSouth Africa’s Jacob Zuma is fast running out of political lives<figure><img src="https://images.theconversation.com/files/175366/original/file-20170623-22683-1d6klld.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">South Africa's President Jacob Zuma isn't blinking despite suffering another resounding loss in the Constitutional Court. </span> <span class="attribution"><span class="source">Reuters/Mike Hutchings</span></span></figcaption></figure><p>Like the proverbial cat with nine lives, South Africa’s scandal-ridden president, <a href="http://www.sahistory.org.za/people/jacob-gedleyihlekisa-zuma">Jacob Zuma</a>, may well have escaped yet again with his political life. This despite another resounding loss in the country’s highest court. </p>
<p>The Constitutional Court <a href="https://www.timeslive.co.za/politics/2017-06-22-read-in-full-concourt-ruling-on-secret-ballot/">ruled</a> that there was no constitutional bar to the Speaker of the National Assembly, <a href="http://www.news24.com/Tags/People/baleka_mbete">Baleka Mbete</a>, opting to employ a secret ballot in a no confidence vote in parliament. She’d originally asserted that she didn’t have the authority to make this decision, prompting several opposition parties – furious at Zuma’s increasingly dictatorial project of <a href="http://ewn.co.za/Topic/State-Capture">“state capture”</a> – to take the matter to court. </p>
<p>South Africa’s judicial system continues to hold firm. This is despite the fact that there appears to be a concerted and well coordinated campaign by a group of politicians and businessmen to undermine the integrity of state institutions as well as to exploit their weaknesses to prosecute a project of self-enrichment and rent-seeking. The campaign is pivoted around the now notorious <a href="https://mg.co.za/tag/gupta-family">Gupta family</a>.</p>
<p>Zuma has been brought to book repeatedly by the courts. In March last year, the Constitutional Court <a href="http://city-press.news24.com/News/constitutional-courts-damning-judgment-zuma-violated-his-oath-of-office-20160331">found</a> that Zuma, as well as parliament, had violated the Constitution. They did so by failing to defend and uphold the constitutional authority of South Africa’s ombud – it’s Public Protector – who had conducted an investigation into the president’s private homestead, <a href="https://mg.co.za/report/zumaville-a-special-report">Nkandla</a>. She found that Zuma and his family had unlawfully benefited. He was required to pay back nearly R8 million to the state. Yet, following a <a href="http://ewn.co.za/2016/04/01/Full-text-of-President-Zumas-speech-on-Concourt-Nkandla-judgment">half-baked apology</a>, Zuma held onto power. </p>
<p>In parliament he’s survived a number of no confidence votes <a href="http://www.sanews.gov.za/south-africa/mps-reject-motion-no-confidence-against-president">mounted</a> by the opposition. He also dodged two such attempts in the national executive committee of his own party, the ruling African National Congress (ANC) – <a href="http://ewn.co.za/2016/11/27/anxious-wait-for-outcomes-of-hanekom-s-motion-against-zuma">one</a> in November last year and most recently <a href="http://citizen.co.za/news/news-national/1526627/netshitenzhe-tables-motion-of-no-confidence-in-zuma-at-nec-meeting/">in late May</a>. He’s been backed by an increasingly slender yet sufficient number of loyalists and nationalists for whom Zuma provides political cover for their populist and self-serving call for “radical economic transformation”. </p>
<h2>Tipping point</h2>
<p>The tipping point for the latest legal skirmish was Zuma’s reckless and apparently self-interested decision to <a href="https://theconversation.com/firing-of-south-africas-finance-minister-puts-the-public-purse-in-zumas-hands-75525?sr=16">fire</a> South Africa’s widely respected minister of finance, Pravin Gordhan, on 30 March this year. </p>
<p>Despite a cold war with Zuma, Gordhan had <a href="https://theconversation.com/south-africa-cant-save-itself-just-by-talking-the-talk-it-must-walk-the-walk-73863?sr=7">held the line</a> against “state capture” for 15 months after his reappointment in December 2015. And so as night follows day, Gordhan’s removal precipitated an immediate ratings’ agency downgrade. The downgrade added further pressure to an already weak economy, undermining any prospects of economic growth to address the high levels of unemployment and inequality that threaten its precarious social stability. </p>
<p>Once again, in response to Zuma’s <a href="https://theconversation.com/stakes-for-south-africas-democracy-are-high-as-zuma-plunges-the-knife-75550?sr=21">ill-considered cabinet reshuffle</a>, the largest opposition party, the Democratic Alliance, tabled a motion of no confidence in the national assembly. There has been an apparent shift in attitude in the ANC’s parliamentary caucus suggesting that the no confidence vote might have a chance of succeeding. Many ANC MPs are now anxious about the party’s prospects at the 2019 national election and their own political future. </p>
<p>But there’s also concern over Zuma’s apparent hold over many backbench MPs. Many of them fear retribution and expulsion should they vote against the president. If an MP ceases to be a member of the party on whose list they stood at election time, they automatically lose their seat in parliament.</p>
<p>Because of this one of the smaller opposition parties, the United Democratic Movement, requested the speaker to use a secret ballot to enable MPs to vote with their conscience. Mbete, who is also the national chairperson of the ANC, refused. She claimed that she did not have the power to make the decision.</p>
<p>The Constitution is unclear. It provides for the president and the cabinet to be removed by the national assembly by a bare majority following “a vote”. In the secret ballot case, the court could have interpreted “a vote” to mean “a secret vote”. Equally, however, the failure of the Constitution to specify a secret ballot in the case of a no confidence vote could mean an open ballot was intended. </p>
<p>So on June 22, the Constitutional Court took neither route. It held that,</p>
<blockquote>
<p>the Constitution could have provided for a vote by secret ballot or open ballot. It did neither.</p>
</blockquote>
<p>Rather it held that, </p>
<blockquote>
<p>the national assembly has … in effect empowered the Speaker to decide how a particular motion of no confidence in the President is to be conducted. </p>
</blockquote>
<p>Accordingly, the Court set aside the Speaker’s decision that she lacked constitutional power to order a secret ballot. Notably, Zuma had entered the proceedings to argue, like the Speaker, that there was no power to order a secret ballot and no need to do so. </p>
<p>The court pointedly observed that Mbete has “an enormous responsibility” to ensure that when she decides whether on a “situation specific” case-by-case basis a secret ballot should be employed. She should do so on a “rational and proper basis”, with due and careful regard to a purpose of the no confidence vote. Importantly, the court noted that the primary duty of MPs is to the Constitution and not to their parties. </p>
<p>The implication is that the ability of MPs to vote with their conscience in such a situation is clearly a factor that the speaker should take into account when making her decision. Some critics will regard the court’s “guidance” as insufficiently precise. But the court was clearly anxious not to encroach on separation of powers – perhaps mindful of the virulent claims from some quarters of “judicial over-reach”.</p>
<p>Mbete will have to choose between her loyalty to her president as one of the ANC’s <a href="https://mg.co.za/tag/anc-top-six">“top six”</a> leadership and her duty to the Constitution as speaker. </p>
<h2>Zuma unperturbed</h2>
<p>Later on the same day of the judgment Zuma was <a href="http://ewn.co.za/2017/06/22/watch-zuma-answers-questions-on-state-capture">answering questions</a> in parliament. Judging by his typically thick-skinned signs of confidence, the president is not unduly perturbed by the court’s ruling. </p>
<p>While the court stated the power to decide on whether to hold a secret ballot or not should “not be exercised arbitrarily or whimsically”, Zuma has already made it clear that he expects Mbete to decide that a secret ballot is inappropriate or unnecessary. </p>
<p>Parliament returns after its current mid-year winter recess in August. If Mbete once again declines to hold a secret ballot, her decision will, in turn, then be subject to judicial review application. In due course the court could be forced to order her to hold a secret ballot. </p>
<p>So despite the Constitutional Court judgment, and the lucidity of it’s reasoning, a no confidence vote held with a secret ballot is still some way off. Until then, Zuma lives to fight another day. </p>
<p>But with every day passing, December’s ANC national elective conference gets closer. Then Zuma’s term as president of the ANC expires. Then his power will decline potentially decisively. </p>
<p>One way or another, Zuma is running out of political lives.</p><img src="https://counter.theconversation.com/content/80009/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Richard Calland is a member of the advisory council of the Council for the Advancement of the South African Constitution (CASAC) and a Director and Founding Partner of The Paternoster Group: African Political Insight. He also serves on the Board of the Open Democracy Advice Centre. </span></em></p>President Jacob Zuma has been brought to book repeatedly by South Africa’s courts. He also faces a rising tide of discontent. One way or another, he seems to be running out of political lives.Richard Calland, Associate Professor in Public Law, University of Cape TownLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/792112017-06-11T17:42:56Z2017-06-11T17:42:56ZEthical journalism: what to do - and not to do - with leaked emails<figure><img src="https://images.theconversation.com/files/173278/original/file-20170611-21746-18a1z21.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Leaked information is the life blood of investigative journalists. But there are a few golden rules they should follow when reporting on it.</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p><em>South Africans have been gripped by stories gleaned from <a href="https://www.dailymaverick.co.za/article/2017-06-01-editorial-the-guptaleaks-revealed/#.WT05zjOB2i4">the biggest data dump</a> in the country – between 100,000 and 200,000 emails leaked by an anonymous source to journalists. The emails, locally referred to as the “<a href="http://citizen.co.za/news/news-national/1537215/cabinet-expresses-concern-about-gupta-leaks/">Gupta leaks</a>”, reveal how <a href="http://citizen.co.za/news/news-national/1334530/who-are-the-guptas-details-according-to-madonsela/">the Gupta family</a> has done business in the country, as well as their engagements with the government and politicians. The family, and its associates, are <a href="http://www.bbc.com/news/world-africa-22513410">accused of buying favour</a>, as well as state tenders and deals, through their close association with President Jacob Zuma, members of his family and politicians loyal to him. The Conversation’s Ozayr Patel asked Professor Franz Krüger how journalists should respond to leaks of this kind.</em></p>
<p><strong>What are the ethical questions journalists should ask themselves when reporting on leaked information, particularly bulk leaks such as these emails?</strong></p>
<p>It is important for journalists to satisfy themselves that the leaked information is real, and to seek as much corroboration as possible.</p>
<p>The second question that needs consideration is whether and how the leak furthers a political or other agenda. We have been very accustomed in South Africa to see political warfare by leak, and journalists should not allow themselves to be misused in factional battles. But this is a secondary question to the one about whether the information is true and in the public interest. If the leaked information stands up as accurate, and if it is important for the general public to know, it would be reasonable to publish even if it furthers somebody’s interest. </p>
<p>In a situation of that kind, though, it is important for the political background to the leaks to be contextualised.</p>
<p>Another issue that arises from the sheer volume of material that seems to have been leaked is how to pace the release of the various stories. In this case, the material has generated a lot of different kind of revelations, which have been published over time. Some of these have been stronger than others.</p>
<p><strong>What are the four things every journalist should do when covering leaks of this kind?</strong></p>
<p>Check the information, consider alternative explanations, consider the political and factional context of the leaks taking place, allow the people implicated a full and proper chance to respond.</p>
<p><strong>Is the reporting of the leaked emails being handled in an ethical way</strong></p>
<p>In general, I think it has been. I was a bit concerned that in one case, there seems to have been a policy not to ask for a response, and I don’t think that is appropriate. The country’s press code does allow that in some cases, but they are exceptional, and I don’t think in this case the danger of publication being prevented is strong enough. </p>
<p>I also feel that some of the stories published were overplayed – more was made of them than seemed really justified. Also, in some cases too much may have been read into the raw information available. It’s sometimes easy to read things into exchanges that may in fact be quite innocent, particularly where they seem to confirm a narrative that is increasingly accepted as common cause.</p>
<p>In general, though, the reports have given the public a sense of the detailed texture of state capture which was not available before.</p>
<p><strong>What are the dangers of “leak fatigue”?</strong></p>
<p>There is a danger with any particular kind of reporting that audiences will get tired of it, and will switch off. It’s well known that there is “confession fatigue” where the public gets tired of stories of suffering. </p>
<p>Journalists need to be alive to that possibility, and avoid getting too taken up by their own interests and passions to notice that ordinary audiences sometimes have different priorities. The risk is simply that audiences will lose interest, particularly if a perception develops that a story is being milked beyond what is relevant or interesting. The stories chosen need to be significant.</p>
<p><strong>What are the dangers that journalists will lose their credibility?</strong></p>
<p>Credibility is very important to journalism. The central reason to worry about ethics in this – and in other cases – is to safeguard credibility. Despite some weaknesses, I have not picked up a sense in the public discussion that, in general, these stories are sensationalised and that therefore journalists involved should worry about their credibility.</p><img src="https://counter.theconversation.com/content/79211/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Franz Kruger is a member of the South African Press Appeals Panel.</span></em></p>When given leaked information journalists should check the information, consider alternative explanations, consider the political context and allow the people implicated a proper chance to respond.Franz Krüger, Adjunct Professor of Journalism and Director of the Wits Radio Academy, University of the WitwatersrandLicensed as Creative Commons – attribution, no derivatives.