Zuptagate: The cold, hard facts

The life and death struggle between President Jacob Zuma's Gupta faction and the faction that (for noble, or not-so-noble, reasons) opposes state capture by the Guptas and their friends, has raised some thorny legal questions.

Pierre de Vos, who teaches constitutional law at the University of Cape Town, answers some of them.

Question: Is the president entitled to delegate to the Guptas the power to appoint ministers or anyone else in terms of the constitution or other legislation?

Answer: No, he is not permitted to do so. The Constitutional Court confirmed in President of the Republic of South Africa and Others v Sarfu (South African Rugby Football Union) and Others that the president is not entitled "to abdicate the powers conferred upon him by the constitution" by delegating that decision to a minister, let alone private individuals who are not members of the cabinet.

It also made clear that the president is not permitted to act "under dictation" by merely following the instructions of another without applying his own mind to the matter at hand. Neither is the president allowed to "pass the buck" by handing the decision to somebody else.

If the president fails to make the decision about whom to appoint (say by allowing the Guptas to decide whom to appoint), that decision is unlawful and invalid. If the allegations are true that the president delegated decisions about the appointment of ministers (and possibly the commissioner of SARS and the national director of public prosecutions) to the Guptas (and possibly to his son, Duduzane), these appointments are all null and void.

Question: Apart from technical legal considerations, why would the involvement of the Guptas in the appointment of ministers, the SARS commissioner, the head of the Hawks and others be bad for democracy?

Answer: When the president exercises his power to appoint members of his cabinet and other functionaries, he acts as the elected representative of the people who voted for the majority party in parliament. He is politically accountable to the legislature and to the voters.

Unlike the president, the Guptas (or Duduzane Zuma) have not been elected by the voters and are not accountable to them. If they have a decisive say in the appointment of ministers and other functionaries they are usurping powers granted by the constitution to the president. This would constitute a direct attack on democracy as it would remove the decision from the democratically accountable person and place it in the hands of private individuals pursuing their own (and not the country's) interests.

Question: Do you commit a criminal offence when you offer a ministerial post to an MP in exchange for favours?

Answer: Yes, you commit the crime of corruption in terms of The Prevention and Combating of Corrupt Activities Act 12 of 2004 and are liable to a minimum prison sentence of 15 years if convicted.

The act does not require that the person offered the benefit accepted it. All it requires is that the offer was made with the purpose of persuading the person offered the ministerial position. Nor does it require the person offered the benefit to have done what he or she was requested to do. The offer alone constitutes a criminal offence. This means even when an MP was offered a ministerial post and declined the offer, the persons offering the post are guilty of corruption.

• Guptas and Zuma face charges in two citiesIt appeared that the Democratic Alliance (DA) on Thursday had decided against laying corruption charges against President Jacob Zuma’s son.

If the allegations about the offering of ministerial posts in exchange for favours are true, not only the Guptas (and perhaps Duduzane) - who directly made the offer - would be guilty of a crime. The president would also be guilty as he would indirectly have caused the offer to be made. It would not be a defence that he was not in the room when the offer was made. It would be a defence that he was unaware that the offer was being made (but this defence would be difficult to sustain if, as Vytjie Mentor alleged, he was in the next room when the offer was made).