– ‘Just to be clear, there is no such thing as a state capture criminal offence. That offence is a media invention’. Advocate Vuyani Ngalwana –
The South African discourse on state capture real or imagined as directed by the media lends itself to a herd-mentality of a confirmed prevalence of state capture supported by a claim of irrefutable evidence. This also lends itself to a high level of intolerance to alternate views. Those of us who question the usage of the construct are naturally considered dissidents, defending wrong, and therefore labelled in all likelihood as part of the act of state capture. We therefore seldom engage as equals in this debate.
While some speak of state capture with a claim of scientific conviction, the hardcore legal evidence remains sketchy. Some of us continue to remind South Africa as to the history of the construct in the SA context as a sophisticated political theme directly appropriated from an original Democratic Alliance elections 2009 strategy. A strategy that evolved in public discourse to ultimately find credence as defining the former public protector’s report entitled ‘The State of Capture’. State Capture was now given an irrevocable truth status at the hand of this important Chapter 9 Institution and lives in own its presence in our daily sojourn. We must ask who helped to create the ‘state capture narrative of a crime’ that we today have in claims scientific evidence?
If we, therefore, have state capture as a part of our lexicon be it in the daily claim by a group of politicians who were a part of the administration they accuse of we must remain conscious of the role the media played in the scripting of the minds construct in the national conscience. The subject of state capture solicits more voices who venture to probe the construct and its interesting narrow definition in the SA discourse.
Among those who have publicly shared their views are ANC politicians such as former finance minister now Rothschild’s director, Trevor Manuel who among others have also served the administration they accuse of state capture. He laments the reluctance of the investigating and prosecuting authorities to act against the ones Manuel have already found guilty. Manuel is not alone, in this demand for action on those they already found guilty.
ANC Presidential Candidate Ramaphosa, in July 2017 while on the campaign trail is quoted in the following words “We now know, without any shred of uncertainty, that billions of rands of public resources have been diverted into the pockets of a few,” Ramaphosa goes further, “There is not a day that passes that we do not gain greater insight into a network of illicit relationships, contracts, deals and appointments designed to benefit just one family and their associates,”
Candidate Ramaphosa at a COSATU Rally in that same season in August 2017, said the following: “The Hawks and NPA mustn’t sit on their laurels, they must do their work and investigate so those involved can be dealt with… there is no reason for the Hawks and NPA to wait for a commission of inquiry. Something about state capture should be done immediately.”
President Ramaphosa as the first citizen of SA in this season continues this narrative with a sense of absolute certainty on the presence of a crime defined as state capture. Since the President is an attorney by profession, it is difficult to distinguish between the jurist and the politician when it comes to the claims of state capture.
A few weeks ago, Howard University Professor Ziyad Motala in the Sunday Times, advanced the view that the net be cast wider than the current media dictated narrative. His idea of looking at state capture for a claim of existence warrants a scrutiny that resists the temptation of regarding the period immediately after 1994 as a time of innocence. Motala brings the accusers into the accusation box when he asserts, ‘The relentless push to embrace free trade, sweetheart deals that allowed favoured companies to move their assets abroad, and the bilateral investment treaties were profoundly detrimental to the economy and the country’s ability to deal with the legacies of apartheid.”
On the subject of consequences, he concludes, “in terms of consequences, the economic, monetary, and trade choices immediately after 1994 that were indulgent to big business rank among the biggest rip off in the South Africa economy. If we to reckon with state capture, we must understand that its history is rooted in policy choices made during this country’s infancy.”
For Motala, any attempt at understanding or appreciating the subject matter of state capture in 2018 as claimed in absence of a full recognition of the past policy choices made since 1994 is a dishonest exercise. Motala does not exonerate Trevor Manuel, whom he calls the darling of the liberal media while Manuel demands the prosecuting of those tried by the rule of the media in Gupta frame of state capture. Manuel and the administrations that made these policy choices owe South Africa explanations for their choices and thus in their own way may stand accused of state capture when they adopted the free trade agreements or as he calls sweetheart deals that favoured companies to move their assets abroad at the expense of the economy. The rationale for these policy choices is still to be explained.
By the same token there are those who ask why South Africa’s discourse unnaturally excludes President Ramaphosa for his role since as the second in charge of the same executive against whom there is overwhelming evidence of the offense of state capture accused of state capture They ask if he can be absolved for claiming he did not know.
The Star of June 6, carried an op-ed entitled. “The Danger of the Rule of the Media” penned by Advocate Vuyani Ngalwana, Senior Counsel and Chairperson of the General Council of Bars. Ngalwana, cannot hide his frustration with the herd-mentality behaviour of a litany of opinion makers who ventures legal opinions devoid of any respect for how the rule of law functions. He, observes, “in an environment where uninformed legal commentary monopolises the public space. The rule of media supplants the rule of law”. Ngalwana cautions South Africa as to where it finds itself on the role of the law of the media versus the rule of law. He shows this out on the hot topic of state capture and its presence in our discourse.
To support his concern for a society that increasingly evidences the practice and ethic of a rule of law as supplanted by the rule of the media, he cites the following examples with these words, “We have seen examples of this in, among others, the persecution of former president Jacob Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of former finance minister Pravin Gordhan for “winning” a case he had in fact lost as it was struck off the roll; and the excoriation of Chief Justice Mogoeng Mogoeng for dissenting and characterizing the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.
Ngalwana reminds us: “The latest example of this phenomenon came with last week Monday’s High Court order that the assets of the Gupta family be released from state capture- pun intended – because, said the court, there is no reasonable possibility that a confiscation order may be made. Opinion makers went ballistic. They blamed everything from the incompetence of the prosecuting authority to the incompetence of the judge.” Rightfully Ngalwana argues, ‘It never occurred to any of them that perhaps the judge may have been right in his assessment of the evidence before him, and so came to the only conclusion on that evidence.”
Ngalwana, goes to the heart of the matter when he categorically states, “To them that would not because the script had long been written (by them) that the Guptas were guilty of state capture – a ” criminal offence ” of media invention from the public protector’s report titled the State of Capture, and so everything they own is ” proceeds of crime”. So, when the judge deviated from that script, either he or the prosecuting team was incompetent. This dangerous phenomenon poses a serious threat to the rule of law.” Ngalwana is emphatic when he asserts, ‘just to be clear, there is no such thing as a state capture criminal offence. That offence is a media invention.”
According to Abram Mashego’s headline story of the City Press of Sunday June 3, “Insiders at the National Prosecuting Authority(NPA) close to the Specialised Commercial Crime Unit (SCCU) which is directing the criminal investigation into state capture, says that so far, they have ‘absolutely nothing’ against the Gupta business partner and former president Jacob Zuma’s son Duduzane.”
For both Manuel and Ramaphosa state capture, the crime was long proven, hence they both bemoan why it is taking so long to prosecute those involved in state capture. For Manuel, the evidence was proven by the media. They thus share an annoyance that the investigative and prosecutorial aspects are so tardy. Is it possible that when Manuel and Ramaphosa express their dissatisfaction with the time it takes to bring those to a court, it may be because the script on state capture has already been written with Guptas as the epicentre? The frustration may, therefore, be the fact that the legal evidence proves sketchy. If there is such overwhelming evidence, why is the evidence not made to stand by itself?
We thus can conclude, the media invented script of state capture a ‘criminal offence’, that has long found former President Jacob Zuma, Secretary General Ace Magashule, Supra Mahumapelo and many others along with the Guptas guilty, is very intolerant to afford the rule of law to stand as the final arbiter for its claims. If and until the courts are afforded to entertain evidence for corruption, the media-led campaign that has concluded on state capture as a claim, state capture the crime and those accused in public sentiment which may work well since it always was a campaign. Is it possible that SA is busy trying to prove the media invented ‘state capture criminal offence’, which may not be borne out by the rule of law as Ngalwana cautions us?