Is prima facie evidence sufficient if it is neither prima, facie nor even evident?

5 Dec 2022

Now, I’m going to take an absolute flyer here. This is a complete guess. I’m just speculating. This is a hypothesis. But, I can’t help myself. I think Arthur Fraser is making these allegations so that he can stay out of jail.

Do you know what the oddest thing is about the Section 89 Independent Panel report, otherwise known as the Phala Phala report? It spends absolutely no time at all, zero, nada, discussing the likely veracity of the claims made by the former director-general of the State Security Agency (SSA) Arthur Fraser upon which the charges brought against President Cyril Ramaphosa rest. It seems to accept at face value that he did the things Fraser says, and that’s that.

Presumably, you might retort, that’s understandable. The panel was not asked to investigate Fraser; it was asked to investigate the actions of the President. But here is the problem: Fraser’s motivation is key because he provides no evidence of his allegations outside of “unnamed sources”. To me, the question is this: can you ever base a successful prima facie case solely on the back of hearsay evidence?

Now, I am not a lawyer, but I would guess that would be a little tricky. What the panel says is that while Fraser has not disclosed the source of his information, “given the seriousness of the allegations he is making and the potential harm they can cause if untrue, we assume that at an appropriate forum and when the need arises, he will, when called upon to do so, disclose the source or sources of his information”.

Well, you know, one certainly hopes so. But just to take on faith that he will do so is, let’s face it, a stretch. So you might hope in these circumstances, the panel would ponder for just a moment why Fraser did what he did and said what he said. Normally, a judge or magistrate in almost any criminal case would spend a bit of time assessing the credibility of a witness because doing so would be crucial, particularly when there is no corroborating evidence.

Just to use a journalistic example for a moment, I cannot tell you how many times we at Daily Maverick and other publications have reluctantly declined to publish stories because the source insisted on anonymity. Occasionally, if you have some information to back up the allegations, particularly if it’s reliably documented, you might consider it. But generally, it’s an enormous risk, so nine times out of 10, we decline, which — and I can tell you this from bitter personal experience — is a very disappointing thing to do, not least for the source in question.

Now, I’m going to take an absolute flyer here. This is a complete guess. I’m just speculating. This is a hypothesis. But, I can’t help myself. I think Fraser is making these allegations so that he can stay out of jail. He is doing exactly what an intelligence officer would do: muddy the waters, pour smoke on the subject and make a pre-emptive thrust.

Let’s just delve for a moment into the allegations against him. Jacques Pauw’s book The President’s Keepers alleges that when Fraser was the SSA DG, he was complicit in looting hundreds of millions of rands from the Principle Agent Network (PAN) slush fund.

Visit Daily Maverick's home page for more news, analysis and investigations

The documents that make the allegations presented by Pauw are (and I am not making this up): a summary of an internal SSA investigation report into the PAN; a 2013 report by the Office of the Inspector-General of Intelligence (OIGI) about the PAN; the annexure to the OIGI report, an operational directive of the SSA; a letter from advocate Paul Engelke to the SA Revenue Service requesting information on several people, including Fraser; and the outcome of Engelke’s investigation handed to then intelligence minister Siyabonga Cwele. Among other things.

Fraser claimed these allegations were “lies” and said he was going to sue Pauw, notionally for R35-million. That was four years ago. No case has appeared.

So just compare and contrast these two sets of “evidence”. On the one hand, we have a huge trove of documents about enormous, ongoing fraud and theft backed by named, willing informants. And on the other hand, we have a set of allegations from unknown sources and some suggestions, not acted on, about how they might be verified. You know, people, can we just keep our sights loosely on reality here?

It is, of course, impossible to ignore Fraser’s allegations, particularly because they are partly corroborated by the President’s own response, which has more holes in it than Swiss cheese. But I will tell you something: in one respect, I’m with Fraser.

He says the President should be investigated for exchange control violations, and I think he should be. We, the citizens of SA, and the economy as a whole have had to live under the burden of these stupid exchange controls for years; laws that mostly apply to us but not to foreigners. At the same time, we all know the ANC has for decades treated these laws as little-people problems. I for one would love to see the party come a cropper for ignoring laws it gleefully imposed on all of us for ages.

But the problem is that the investigation into Ramaphosa was not about exchange controls. In a post that is circulating in political circles, a retired judge pointed out that Ramaphosa was not charged with corruption. He was not charged with money laundering. He was not charged with exchange control violations. He was not charged with tax evasion.

The charges brought by the ATM in its motion in the National Assembly are:

He undertook paid work (as a farmer) while holding the office of President.

He failed to report corruption by not reporting the theft to the Hawks.

He used General Wally Rhoode and the Presidential Protection Unit for private purposes by getting them to investigate an issue related to his private business.

He extended this misconduct by getting Rhoode to investigate the theft rather than reporting it to the SAPS.

The judge points out that before a President can be impeached there must be “sufficient evidence” of “serious misconduct”. But there is serious doubt about the first two charges because the evidence is palpably insufficient.

“There is not sufficient evidence establishing that President Ramaphosa did undertake ‘paid work’ in violation of the relevant constitutional provision or that he was under an obligation to report any specific act of corruption of which he was aware. The report does not even mention or describe the alleged act of corruption,” the post says.

With respect to the other two charges, it is contended that relying on Rhoode and the Presidential Protection Unit may be iffy, but it probably does not amount to “serious misconduct”. People will have different views on the topic. But it is also suggested that the panel erred in reaching its conclusions on the basis of prima facie evidence and not “sufficient evidence”.

My point!

As for the claims of corruption, money laundering, exchange controls, and tax violations, no such case has been brought against the President so he has not had an opportunity to put up a defence, because those were not things with which he was charged. He might have a defence; I actually doubt it, but who knows until we see it? Or don’t.

These charges might be brought in time, but they have not yet been. All in all, I support the ANC National Executive Committee’s decision that the President need not, and indeed should not, resign at this moment. DM/BM

Categories:

Tags:

DM is much better if you are signed in...

Business Maverick