Crucify him ― this was the general response to the charging of the accounting officer of the police department, Gen Fannie Masemola. The president has acceded to this demand. Masemola has been removed from office.
South Africa is constituted as a constitutional democracy that is based on the rule of law. One non-negotiable principle of the rule of law is innocent until proven guilty and equality before the law. Hearing the other side is also sacrosanct.
But what are the facts? What is he charged with? The president says these are serious charges that merit retiring the general (Masemola’s contract ends in less than a year, and the trial is not going to be concluded within the next 12 months — so say the criminal law experts). The acting minister of police says they are not corruption related. Idac says he is charged for contravening the Public Finance Management Act (PFMA) on four counts.
The charges against Masemola relate to a R288m SAPS tender.
The only possible charge under the PFMA would be under section 86 of the act. The possible charge is for wilfully, or in gross negligence, not following the PFMA provisions of taking action to stop the award of the tender or authorising payments before the cancellation of the tender.
Clearly there is no objective corruption or ethical malfeasance related to Masemola in this instance. Action taken against Masemola is clearly with prejudice.
What if Idac is conflicted? They claim to have advised him of the potential fraudulent bid attempt by Medicare 24 Tshwane. He responds that he took their advice and checked with the relevant officials who are delegated to specifically manage the SAPS procurement process. These properly authorised officials confirmed that their compliance check revealed that everything is in order.
We must remember that these actions take place under the cloud of a criminal justice system that has been shown to act with favour, fear and prejudice. Evidence given at the parliamentary ad hoc committee has called into question the ethical and moral standing of some Idac investigators.
As an accounting officer, what else is reasonably expected from a head of department who manages a R200bn budget department? He has implemented proper delegation of authority mechanisms and has ensured there is an appropriate procurement and provisioning system which is fair, equitable, transparent, competitive and cost effective, as required by Treasury regulations and good organisational management practices.
Maybe Idac has more on this than what they have released publicly, otherwise they would be crucifying him. His guilt must still be proved beyond reasonable doubt in open court.
The sleight of hand that the prosecution authorities have played must force us to question the ability of law enforcement agencies to act without fear, favour or prejudice. The trick is not being frank with the public about the charges that Masemola faces and combining his charges with those accused of corruption. Why are they not dealing with him separately? Will he be required to be in court attendance as the state proves its case against the corruption accused? He apparently does not have common purpose with them.
Must Idac’s perceived prejudice against Masemola so easily leave an impact on the career of “the deemed on precautionary suspended national commissioner”, or must we the constitutional, democracy-loving people demand a higher standard from prosecution authorities that excludes ‘with prejudice’ action?
The fact that the public wants to see people in orange overalls must not mean that we abandon the constitutional principles that govern South Africa. Masemola also has a right to be heard.
We must remember that these actions take place under the cloud of a criminal justice system that has been shown to act with favour, fear and prejudice. Evidence given at the parliamentary ad hoc committee has called into question the ethical and moral standing of some Idac investigators.
Masemola as a citizen will in time have his day in court, but Masemola as a public servant has met his demise. Can we justify his professional demise on the basis that the generals are corrupt and anything coming to them is justified, or must we demand that as law and order is restored we do so as constitutional democrats living under the rule of law that gives citizens the benefit of the doubt until their guilt is proved beyond reasonable doubt?
Rebuilding our state requires more analysis than reaction. Let there be transparency and openness. We must be vigilant in the rebuilding process that we do not throw out the baby with the bathwater.
Mandla Letlape is an advisory board member and the CEO of the Thinc Foundation
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