Parties must pledge equal justice after 2019

South Africa does not have equal justice for rich and poor.

A year ago, South Africa’s total prison population, including pre-trial and remand prisoners, was 161,984.  It seems odd, therefore to question the operation of justice and the Rule of Law. All these prisoners were arrested and brought before the courts by the South African Police Services (SAPS) and the prosecuting authority.  So then, is our system of Justice working satisfactorily?  The answer, when one looks closely at the situation is, “No, it is not.”

At the level of the poor, the deprived, the un- or under-educated, which describes most of those involved in crime, the system operates more or less properly.  Of course, thousands of criminals are never caught and punished because of inadequacies in crime detection and prosecution. The crime rate is escalating and pathetic leadership at national level is partly to blame.

But there is an important class of criminal that does not fear being held to account, detected, tried and if found guilty, punished.  These people are the politically connected, the educated, and the friends of those in power. Perhaps this has always been the case but the Travelgate revelations first signalled the post 1994 rot. Crooks escaped real punishment because they were politically powerful.

Eighty members of parliament, not all from the ANC, but by far the majority from that party, were implicated in defrauding the public by abusing travel vouchers and claims for travel.  Many of them were asked to repay monies deemed to have been misused.  Thirty were charged criminally and many agreed to a plea bargain with the state, signed admissions of guilt and were fined.

The saga went on for four years until the last ANC MP pleaded guilty. Gareth van Onselen wrote that Travelgate was a huge scandal that would become defined by cover-ups, political protection and ultimately, reward for those found guilty.  Travelgate crooks became ministers, deputy ministers, mayors and chairpersons of parliamentary portfolio committees at inflated salaries.  In the ANC the old saying, “Who says crime doesn’t pay?” became the signal to many others, with Travelgate setting the scene for corruption in public life.  It stretched the envelope so that it soon extended to the public service, to state entities and right into the cabinet. 

The ANC, committed to acting against corruption, failed consistently to take any action.  The only real fear of miscreants was that the media or the opposition would discover the facts and that public embarrassment would follow. Few had any fear that they would be jailed or punished, or even fired, if caught. They could often expect the protection of the presidency and promotion to higher office.

While South Africans suspected the rot, it was only with the publication of the Public Protector’s report on state capture that the extent of the lawlessness, the greed and the exploitation of public office for personal gain started to glimmer through. This has now been vastly expanded by the revelation two or three weeks ago of the existence of more than 100,000 emails implicating the Gupta family interests and their beneficiaries in the presidency, the cabinet, in parliament, in state owned enterprises and in public life generally. 

The enormity of the cache of emails and the damning evidence they provide has not elicited meaningful and determined action on the part of our justice system. The head of the National Prosecuting Authority who was so voluble and anxious to institute a cooked-up prosecution against the former minister of finance has been strangely silent about the Gupta emails.  Does he not think there should be an investigation? 

The minister of justice has not concerned himself about the matter.  The Hawks seem not to be doing anything much.  The SAPS have done nothing.  The minister of finance has queried how the emails were obtained and has denied that he has done anything wrong.  This despite compelling evidence that he appointed to the boards of state owned enterprises many nominees of the Gupta family enabling them to capture these entities with the aim of improperly gaining enormous financial advantage at the expense of the people of South Africa. 

This minister is certainly not the only one. Several members of the cabinet were quite definitely in the pay of the Guptas or indebted to them.  None of them is suspended or fired or charged with offences. Nothing happens.  Nothing will happen because the president and some of his family have been captured by the same people.  It is now left to the DA and the EFF to take action against the accused.  Perhaps Gerrie Nel and Afriforum will help do the job the state should be doing.

It is time that our people realised that justice and the Rule of Law cannot and should not only be used to hold poor and disadvantaged criminals to account; they must also apply to the rich and the powerful.  If justice continues to provide a special deal for the politically connected, the justice system and the Rule of Law will be fatally compromised.

Project 2019 is the combined effort by opposition parties to rid South Africa of the ANC government. I want each of the opposition parties to make a pledge now to restore and strengthen the Rule of Law under the coalition government that will succeed the ANC. This should be one of the main policy issues of Project 2019. 

It should pledge equal justice for all. It should promise to ensure the justice system will investigate criminal conduct by all politicians and civil servants, ANC and others, as well as by directors of state owned enterprises.  Where there is a decent case, prosecution must follow so that the guilty are held fully to account and punished for the millions, or billions, they have stolen from ordinary South Africans.

Douglas Gibson is a former opposition chief whip and a former ambassador to Thailand

This article first appeared in The Star.