There is prima facie evidence. What then?

 "We have concluded that whilst there is a prima facie case of corruption against the deputy president, our prospects of success are not strong enough... we are not sure if we have a winnable case. Accordingly, we have decided not to prosecute the deputy president", declared the head of the National Prosecution Authority Advocate Bulelani Nqcuka, in 2003. The case has yet to be winnable if it had ever sat. On the other hand, and as a consequence of the Ngcuka statement and other factors, President Mbeki, who at the time the Executive Authority of the Republic vested in his office and had the prerogative to appoint and remove members of Cabinet, later acted within his powers and relieved then Deputy President Zuma of his duties from his Cabinet. 

In doing so, the President, and relying on a judgement by Justice Squires, invoked the values undergirding the Constitution and declared "the primary function of the President of the Republic and the Executive is to regulate the nation's affairs in a manner that promotes the realisation of the ideals enshrined in our Constitution. Among others, these include: 

• building a society based on democratic values, social justice and human rights; 
• ensuring that government is based on the will of the people and that every citizen is equally protected by law; 
• improving the quality of life of all citizens; and 
• building a united and democratic society enjoying its rightful place among nations of the world".

President Mbeki, in reading the statement in Parliament after Justice Squires judgement, reminded us that the Constitution enjoins members of Cabinet and, in particular, the President, to "uphold, defend and respect the Constitution as the supreme law of the Republic; and promote the unity of the nation and that which will advance the Republic". 

Without pronouncing on the involvement or otherwise of Jacob Zuma in the Defence Procurement Process, but reflecting on "an assumed unsavoury relationship" of the President with the accused in the said judgement, President Mbeki navigated the implications of the judgment to the extent that "it seems self-evident that, arising out of the judgement in the Durban Trial, there will be continuing legal processes in the higher courts. These processes will have a bearing on normal enquiries that the law-enforcement agencies may wish to undertake and follow up". 

However, in setting a precedent, President Mbeki declared, "we have had no precedent to guide us as we considered our response to the Judgement by Justice Squires. We have therefore had to make our own original determination on this matter guided by what we believe is in the best interest of the Honourable Deputy President, the Government, our young democratic system, and our country". The President then said, "however, as President of the Republic I have come to the conclusion that the circumstances dictate that in the interest of the Honourable Deputy President, the Government, our young democratic system, and our country, it would be best to release the Hon Jacob Zuma from his responsibilities as Deputy President of the Republic and Member of the Cabinet."

While Mbeki could remove Zuma from his Cabinet, he still could not remove him as Deputy President of the ANC, and he thus remained the second in charge in terms of actual control of the political capital vested in the ANC as the governing party. Notwithstanding that in a democracy, the government is the prize of politics, the electoral system can make conduits to getting such a prize the main prize. In South Africa, leading a political party and, through it, fighting an election to gain state power is the prize of politics. With the ANC arguably, holding the most significant chunk of social and political capital in South Africa, it has assumed the status of being the main prize of politics, and the rest follows its control. 

This situation has thus created a challenge wherein what happens inside the ANC, and has an influence on what ultimately happens in government, will obtain. If you are at variance with the law and caught, that personal matter has no consequence to your leadership of the ANC. "The context of the rule of law, which includes respect for the integrity and independence of the judiciary and presumption of innocence of any person, pending findings of the courts", as Mbeki submitted in his maiden statement, has for a while been subject to both abuse and reverence within the ANC. 

The Mbeki decision of 2005 was, in essence, a version, if not a precursor-in-action of the step-aside rule, save that it was not codified as an ANC policy on member integrity management. After the challenges of ANC members who hold high office in the ANC and in government, including society, finding themselves at variance with the law or values that undergird our democracy, the 54th Conference of the ANC, in addition to the disciplinary process obtaining, introduced a member integrity management system whose application is still maturing. The essence of the integrity management system is consistent with what Mbeki did in 2005, given that he acted in the interest of removing the government and the ANC from a theatre that would have put both institutions into disrepute. Subjective as determining disrepute can be, the difficulty of acting when there is disrepute cannot be the reason not to act, as Mbeki demonstrated with Jacob Zuma in 2005 and the Ramaphosa-led NEC later did with Ace Magashule and others. 

Enter the PhalaPhala matter. 

PhalaPhala is a game farm owned by President Ramaphosa. To the extent that he frequents it and his family lives in it, it is a national key point and is assumed to have 24-hour surveillance by SAPS. It has entered the centre of national news due to a case opened by Arthur Frazer against the President. Amongst other allegations in the affidavit is that he kept cash in foreign currency at the farm, the cash was stolen and was not 'properly' reported to the police, and that he continued to conduct business at his farm in contravention of the Constitution. A case was opened with the South African Police, and investigations are ongoing. 

Emanating from the affidavit, this meant the President needed to refute, account, or otherwise, and amongst others, the following, 

1. s96(2a) of the Constitution breached (Prohibited Paid Work by Members of Cabinet)
2. s96(2b) of the Constitution was breached. (Conflict of Interest)
3. s34(1) of PRECCA was breached (Failure to report)
4. Foreign Exchange Laws were breached. (In possession of excessive foreign currency)
5. SARS Laws were breached (Tax Evasion)
6. Home Affairs/border control laws were breached, 
7. ...and many other laws related to the immediately visible laws above. 

The PhalaPhala matter, unfortunate as it is, and given that Ramaphosa championed a government that should not tolerate malfeasance and related, came at a time when the ANC had developed its integrity management system. The ambiguity of ANC policy and the absence of precedent that Mbeki faced between 2003 and 2005 regarding dealing with narratives, allegations, and ultimately charges that Jacob Zuma faced was settled in Mangaung at the 54th National Conference. The ANC has the policy to deal with its leaders in a compromised relationship with the law even before a guilty or otherwise verdict is pronounced. 

Evidence of the existence of policy on this matter is how the NEC processed the issue of the Secretary-General and other elected leaders of the ANC post the 54th Conference. In respect of the SG, dealing with his guilty or otherwise, status is choked in the cocoon of the criminal justice system, while that of ... in Mpumalanga and, arguably, Dr Zweli Mkhize, found relief in good time for them to re-enter the political space. In all instances, the member integrity management system is working, save for the slow process within the criminal justice system. 

At the centre of the integrity management system is the reputation of the ANC to the extent that its members have wittingly or otherwise acted in a way that puts the ANC into disrepute. According to the integrity management system, the principle of innocent until proven otherwise is applicable outside of occupying an ANC office. The system advises members to step aside from their positions if they are found to have been in a compromising relationship with the law or have acted in a way that is inconsistent with the values and norms society expects of a leader of the ANC. Step aside is voluntary and enforceable within the broader integrity and ANC reputation management system. 

The PhalaPhala issue is a reputation issue for the ANC. That there is a charge or otherwise about what unfolded at the farm cannot be a reason not to deal with the reputation and integrity matters the policy has to date been more about. As things stand, the President has admitted that there was the theft of cash in foreign currency at his farm. The President disputes the quantum of the cash and that he is still involved in the business activities at the farm, notwithstanding his section 96 obligations. 

This has occasioned a process in which this matter is investigated by multiple state agencies, including the Public Protector and Parliament. In respect of Parliament, the issue had been the impeachability of the President and whether he had a case to answer. Parliament instituted a process led by jurists to advise it, on the strength of evidence or information submitted to the panel, if the President has a case of impeachment to answer. 

The report came out, and according to the panel, there is prima facie evidence that he has a case to answer. This report might be the first domino touched to initiate the follow-up falling of others, including possible prosecution if it is found that the President violated any other legislation.

The member integrity management system of the ANC enjoins its leaders to step aside when a member finds himself or herself in a state that puts the party into disrepute; s/he must step aside. On the balance of probabilities, there is no way this finding would not have put the ANC into disrepute or put the office of the country's President in an untenable situation. 

Similarly, the dynamic of the case being reported to the police, which brings the rights of the accused until a charge is formally served, has impacted the person of the President cooperating freely in the in-Parliament processes and thus only releasing information. In lieu of the right to remain silent, it follows that information at the disposal of the panel might have interesting characteristics. 

There is also the dynamic of prima facie. "Stating that there is a Prima Facie case to answer is not a confirmation that it is indeed a Prima Facie case…it must first be ventilated in a court of law, and that has not yet happened, and a Panel of Parliament is a mere recommendation" submits a legal mind on this matter. 

It is also interesting that "Judge Ngcobo admitted to the absence of certain information (a noticeable gap of inconclusive of some aspects of the report) and that creates doubt, and may have opened an avenue that might, and strictly speaking, favour the President in any legal process. Especially when his constitutional rights have to be protected as a person. 

The above, and many other arguments notwithstanding, the legal correctness of the President's position in the matter still does not fully answer the disrepute issues the member integrity management system of the ANC sought to address. 

What then?

In times of weakened political leadership and compromised hope in a few that could save a nation, the nation, through its institutions of leadership and substantial voice commanding individuals, should come out in defence of what would be suitable for society. Under the circumstances, the fundamental question might be, 'what lower disrepute can those vying for the position of ANC President take South Africa than what Ramaphosa has already done?' 

1. We are maybe at a point we must pause and ask, what if, as a society, we signal that behaviours represented by Zweli Mkhize's step down when faced with charges and Ramaphosa cooperating with institutions charged with finding out what happened in the absence of charges are behaviours representing progress towards our march to rid our country of corruption and state capture. 
2. In the context of needing to mitigate the fragility risks that our democracy has endured at the hands of direct state corruption and violations of laws in private spaces like PhalaPhala, shouldn't we rethink how we should deal with the disrepute we now know than leaving to chance potentially worse disrepute? 
3. The ANC nomination process has defined the better of the rest to stand as its President and potentially that of the country. In both candidates, their conduct, within the ANC's own member integrity management systems and what our constitutional democracy provides, in the wake of their challenges, we should search for solace. 
4. We should demand more from them as they contest to lead us beyond the 1,3 million direct members of the ANC. In this demand, we should state our minimum demands, including them promising us a beyond ANC membership loyalty to us as the Nation. 
5. Let Ramaphosa and Zweli Mkhize settle the ANC. Let the ANC face the nation with one of them as its leader. Let the country decide if any of them deserves to be mandated to use the public power vested in the office of the President. Let the bar of our cognitive political capabilities be reset. 

Otherwise... CUT!!! 🤷🏿‍♂️