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Whether you're a president or a junior official, Zondo wants R200m or 20 years in jail for 'abuse of power'

01 February 2022 - 19:09
State capture commission chairperson Raymond Zondo has proposed new legislation that makes 'abuse of power' illegal.
State capture commission chairperson Raymond Zondo has proposed new legislation that makes 'abuse of power' illegal.
Image: Veli Nhlapo

If state capture commission chairperson Raymond Zondo gets his way “abuse of power” will become a criminal offence that carries a maximum penalty of a fine of up to R200m or 20 years in prison or both. 

And, Zondo says, such an axe could fall on any official, from the “president of the republic who hands a large portion of the national wealth, or access to that wealth, to an unauthorised recipient, to the junior official who suspends a colleague out of motives of envy or revenge”.

Taking such action and putting laws in place would serve to ensure that people installed in key positions act in ways which are fitting of those roles.

This recommendation is contained in part 2, volume 2, of the state capture commission report, which was handed to President Cyril Ramaphosa on Tuesday.

He made the recommendation specifically in relation to shenanigans at state-owned arms manufacturer Denel, where former president Jacob Zuma's former lawyer Daniel Mantsha  led a board which removed group CEO Riaz Saloojee, the group CFO and the company secretary in one of its first decisions — a decision that precipitated the SOE's downfall.

Zondo says in the report that Mantsha and his board should be criminally probed to establish if their actions breached the Public Finance Management Act.

But Zondo also suggests going further than this, with Denel and Mantsha not the only culprits.

“The facts before the commission have shown the inadequacy of punitive measures which currently form part of our law. Egregious violations of the constitution have been demonstrated. Two forms of that abuse have been demonstrated by the evidence regarding Denel: the constitution of a board of directors for the purpose of achieving a result in direct conflict with the obligations imposed on directors by the Companies Act and other application legislation and measures; and the use of the suspension power in an administrative context for improper purposes.

“The methods by which unscrupulous persons can abuse public power are legion and abuses of public power pervades our public life,” he writes.

But, he says, “public abuse of power per se” isn't a criminal offence — and such abuses of power tend not to be identified until long after they have taken place.

“It is therefore recommended that the government give consideration to the creation of a statutory offence rendering it a criminal offence for any person vested with public power to abuse public power vested in that person by intentionally using that power otherwise than in good faith for a proper purpose.

“Such potential violations might range from the case of a president of the republic who hands a large portion of the national wealth, or access to that wealth, to an unauthorised recipient, to the junior official who suspends a colleague out of motives of envy or revenge,” Zondo writes.

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