Accountability/Justice/Responsibility — words of forgotten meaning in South Africa

13 Apr 2023

Recent developments indicate that we are fast becoming a country no longer governed by the rule of law; that no one, inside or outside our frontiers, respects South Africa any more.

The confirmation that the United Arab Emirates has turned down our government’s extradition request for Ajay and Tony Gupta, and essentially gifted them freedom, is of immense symbolic importance. It is about much more than the Guptas or even our relations with the UAE. It is about whether anyone will ever be held accountable for what happened during the years of State Capture. Coming as it does, when our murder and overall crime rates are rising so rapidly, it is also a symbol that we are fast becoming a country no longer governed by the rule of law; that no one, inside or outside our frontiers, respects South Africa any more.

While it appears impossible to believe that State Capture could have happened in the way it did without former president Jacob Zuma, the Guptas were the other side of that corrupt coin.

First, there were investigative journalists’ efforts that lasted a decade and culminated in the #GuptaLeaks.

Then there were court records showing how our money was leaving the country.

This was followed by the entire Zondo Commission and evidence of incredible sums of money as the investigator Paul Holden showed where the money came from and where it disappeared to.

But there was also the attitude of the Guptas, who knew everyone knew what they were doing — and they didn’t care.

They bought the political party Black First Land First (who famously went to “guard” the Gupta estate in Saxonwold during a Zuma Must Fall protest).

They also secured the use of the Waterkloof Air Force Base, when Atul Gupta gave an interview to the journalist Barry Bateman confirming the landing of his guests from India.

Our country was sold to the Guptas for virtually nothing — it was given away to a group of people who were clearly anti-black racists.

This is why getting some kind of justice for it all mattered so much to South Africans. After the humiliation of the State Capture era, it was important for our self-respect, for a country yearning for proof that in fact, we are not a place where only might is right.

Now, that possible redemption of holding the Guptas legally accountable, as hollow as it really might be in any case, has been denied.

In the middle of this is the contestation about what actually happened.

The UAE says it complied with every step of our extradition treaty with them. Sources in Dirco have told Daily Maverick our government will take diplomatic action against the UAE in the form of a démarche.

At least two academics, though, have pointed out that this was probably the result of a failure by our government to comply with all of the paperwork.

As Professor Omphemetse Sibanda has pointed out in Daily Maverick, the UAE says South Africa did not submit valid arrest warrants. If that is true, one can hardly blame them for doing what they did.

Also, Unisa’s Professor Emeritus of International Law, André Thomashausen, has pointed out that the UAE is involved in extradition requests fairly often, and often grants the extradition. He has mentioned the case of an Italian national implicated in Mafia-related activity who was extradited from there in recent months.

However, in her exposé, Daily Maverick’s Ferial Haffajee threw a cat amongst the pigeons when she revealed that the Dubai prosecutors confirmed in writing that the South African submission was in order.

https://www.dailymaverick.co.za/article/2023-04-12-dubai-prosecutors-confirmed-in-writing-that-the-gupta-extradition-documents-were-in-order/

A flailing criminal justice system

Still, way too many times in the past the problem was with ourselves. And this is where the real power of the dark symbolism lies.

It is extremely easy, again, to see clearly that our criminal justice system does not work.

There is now so much evidence for this, whether it be the incredible increase in murders, the shocking decrease in successful convictions, a jail system which cannot keep people inside it, and the general fear so many South Africans live in.

There are now so many examples of a lack of accountability and the resulting fear emanating from this fundamental failure.

In the days before the EFF’s “National Shutdown” march, many believed there would be widescale public violence. One of the major reasons for this fear was the fact that so few have been held accountable for the deliberate violence in KwaZulu-Natal and Gauteng in July 2021 that vanished almost 400 lives and caused billions of rands in damage.

Even highly public figures who openly incited the violence, such as Duduzile and Duduzane Zuma, have not even been charged for what they said.

For people living in a community where they are routinely threatened with personal harm, who know that reporting these threats to the police is a waste of time at best, this is another slap in the face.

Meanwhile, there is yet another case which is currently at the forefront of the public domain, which is also putting our criminal justice system on trial.

Thabo Bester’s amazing jailbreak and the fact it clearly involved corruption has shown how easy it is for those with resources to leave prison. The fact he held conferences from inside a prison is a national embarrassment.

Added to this are the crimes that he pleaded guilty to. He raped several women and killed one of his victims.

In a country with such a high rate of gender-based violence, and with such a low conviction rate for it, this gives it even more power.

As the DA’s justice spokesperson, Glynnis Breytenbach, put it in at least one interview, imagine being the victim of Bester, a person he raped, and bumping into him in a supermarket, having presumed he was in prison or dead.

Imagine the unbelievable trauma of that.

However, the fact that he has been detained in Tanzania may offer some hope for redemption. If he is extradited, despite the technicalities of the process, and if he is then jailed (again) this may restore some hope, that in some cases at least, justice will be served.

It may be important to remember that in the past at least two other people in SA have openly challenged the justice system and were then held accountable.

The first is Radovan Krejčíř, who many believed simply had too much money and was too able to use violence, to be convicted and jailed. He had, after all, managed to escape from the Czech Republic.

He is now serving his eighth year behind bars.

The other, perhaps more importantly, is Richard Mdluli. He rose to the position of head of the Crime Intelligence Unit of the SAPS and was close to Zuma.

Despite that, he was eventually convicted of assault and kidnapping, and jailed (he has now been released on parole).

These are examples of people who were thought to be “untouchable” being jailed. Bester may prove to be another, which would be a symbol in the fight against gender-based violence.

A lesson from the State Capture era

But in the meantime, there are other symbols which suggest that as a country we are making no progress.

Surely the most important is the fact that despite all of the testimony, all of the evidence, and all of the findings of the Zondo Commission, hardly anyone has been charged.

In fact, several people against whom findings were made are still serving in the executive in the ANC. This lack of action presents a clear lesson from the State Capture era:

Those who take part in State Capture, have nothing to fear.

In fact, our current state of South Africa is looking more and more like the Zuma state that allowed State Capture to thrive. Our President, who claims to be fighting corruption (as did his predecessor), now has to rely on the ANC’s parliamentary majority to avoid a full inquiry into what happened on his farm.

It is unlikely that this story has a happy ending for many of us. But it probably will be a happy ending for the Guptas. They are likely to be photographed, somewhere in the world, living large and successful.

There will be nothing we can do about it, and it appears there will be nothing we can do about ever seeing justice prevail in South Africa. DM

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South Africa

A flailing criminal justice system

A lesson from the State Capture era