Faizel Patel – 28/04/2021
I appear before this Commission at the request of the commission but also to assist the commission in its work, and I make this opening statement, on behalf of the African National Congress.
I appear here in my capacity as ANC President, having been elected to this position at the ANC’s 54th National Conference in December 2017. Yesterday, our country celebrated the 27th anniversary of the advent of democracy. On that day, we ushered in a new era and, as a nation, we made a decisive break with a horrible past of colonialism and apartheid. The ANC, working together with many anti-apartheid formations, led and facilitated the process of crafting a new constitutional dispensation that is today the bedrock of our democracy. This month marks 25 years since the first hearing of the Truth and Reconciliation Commission into apartheid-era human rights abuses.
It was a remarkable moment in our history, demonstrating our determination as a nation to unearth and confront the crimes of our past, so that we may make a decisive break with these violations of human rights and so that we may forge a better future for all our people.
This Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector carries a similar responsibility. This Commission is the instrument through which we seek, as a nation, to understand the nature and extent of state capture, to confront it, to hold those responsible to account, and to take the necessary measures to ensure that such events do not occur ever again in our country. State capture and corruption have taken a great toll on our society and our economy. They have eroded the values of our Constitution and undermined the rule of law.
If allowed to continue, they would threaten the achievement of the growth, development, and transformation of our country.
It is for these reasons that the ANC’s 54th National Conference in December 2017 resolved to support the establishment of this Commission. The ANC has consistently expressed its support for the objectives and the work of the Commission. The ANC has taken this position knowing that the organisation would itself be placed under great scrutiny, and that the process of examining these matters would very likely be difficult and painful for the ANC. Nevertheless, the ANC maintains that this Commission is a necessary part of the broader social effort to end all forms of state capture and corruption.
The ANC’s position has been that it is the responsibility of ANC members – and indeed of all South Africans – to assist the commission in its work. Therefore, I appear before the Commission not to make excuses or to defend the indefensible. The ANC has agreed to not only support the work of the commission but to assist the commission in every way possible to fulfil its mandate. My submission, and the other submissions made on the ANC’s behalf, are therefore intended to provide whatever information, context and explanation the Commission may require.
Corruption is not a new phenomenon in South Africa. The apartheid system was morally and systemically corrupt. Not only did its legal provisions appropriate to a small minority the assets and resources that rightfully belonged to all South Africa’s people, but there was also a prevailing culture of corruption within the apartheid state, state-owned enterprises, private business establishment and Bantustan administrations. The advent of democracy in South Africa was an opportunity to make a decisive break with that past. Through the adoption of a new democratic constitutional dispensation, we established a new era of transparency, accountability, ethical conduct and respect for the rule of law.
The experience of the past 27 years shows that endeavour to have been, for the most part, successful. Our country has a national Parliament and provincial legislatures elected by universal suffrage in regular free and fair elections. We are proud to have a strong and independent judiciary. Our democracy is supported by robust institutions, and we have a free and vibrant media. An important aspect of the ANC’s approach to corruption over the years is a recognition of the extent to which some ANC leaders and members were advertently and inadvertently complicit in corrupt actions.
And as a consequence, the extent to which corruption contributed to practices of patronage, factionalism and the manipulation of organisational processes within the ANC is a matter of record. The recognition of these facts does not mean that the ANC is itself corrupt or uniquely affected by corruption. There are other institutions in society, various political and social formations, as well as private sector companies, that have to confront corruption within their own ranks. Nor is South Africa alone in the world in having to deal with endemic corruption. Many other countries have to deal with corruption in the political, economic and social spheres. But it is clearly not sufficient for us to recognise the problem. The task of any organisation like the ANC – especially with its history of principled struggle, its values and its mission – is to address the problem.
It should be noted that while there is now broad consensus within South African society that a process of state capture took place over the course of several years, it took some time for the term ‘state capture’ to gain currency and for the phenomenon it described to be clearly recognised as such. Therefore, even though some of the incidents that I refer to in my submission may be regarded as instances of state capture, they were not necessarily recognised or described as such at the time. And even as the term gained currency, there were individuals in the ANC and in society more broadly who contested both the use of the term and the existence of the phenomenon.
In my submission, I outline how allegations of state capture arose within the structures of the ANC and how the organisation responded at different moments. Without going into detail in this opening statement, it is worth mentioning that one of the earliest claims made within ANC structures of the possibility that members of the Gupta family may have had an improper role in the functioning of the Executive was a statement by Minister Fikile Mbalula at an NEC meeting in 2011. To my knowledge, the matter was not taken further by the NEC or in any other structure of the organisation.
At the time the statement did not prompt any specific concerns about the capture of the state. With the passage of time, more reports began to surface in the public domain about the alleged ‘capture’ of public entities by private interests and the undue influence of certain individuals, notably members of the Gupta family, in executive decisions and appointments. As the volume of evidence began to mount in the public domain, the issue of state capture – even if it was not described in those terms at the time – was increasingly a subject under discussion in the National Executive Committee (NEC) and other ANC structures.
It was also a matter taken up more directly by the ANC’s Alliance partners, the South African Communist Party and the Congress of South African Trade Unions, by ANC veterans and others outside the structures of the organisation, including civil society formations and religious organisations. Corruption is, by its nature, a covert activity. Those who perpetrate corruption and related crimes generally seek to keep their actions hidden and disguise their intentions. Without direct evidence, without any investigative capability and mandate, and in the face of vehement denials, it is difficult for any structure to confront such activities.
In addition, the ability of any organisation – but especially a political formation – to act on allegations of malfeasance relies not only on its formal rules and procedures, but also on the balance of power within its structures. The alignment of views within such an organisation is further influenced by access to the offices of state, where the ability to appoint and dismiss – and even to dispense patronage – is concentrated among a few individuals. For the ANC, this was compounded by its own subjective challenges.
The ANC took time at its 54th National Conference to reflect on these subjective challenges and recognised the erosion of its organisational integrity, as processes have been manipulated to advance the material interests of certain members and associated private companies and individuals. This manifested itself in weak and pliable branches, vote buying and gate keeping, factionalism and even open conflict. This provided fertile ground for state capture and corruption. As I outline in my submission, the ANC has, over the course of several years, recognised the existence of corruption within the state, within its own ranks and in other parts of society.
It has taken several resolutions on measures to prevent corruption, including on issues relating to state capture. These are evident in statements of the ANC National Executive Committee, particularly from 2016 onwards, which included a call for an independent investigation by the competent authorities into these allegations. The question that arises is whether these resolutions and pronouncements were followed by meaningful action to fight corruption and end state capture?
In answering this question, we must acknowledge that the issue of state capture was a matter of great political contestation within the ANC. Differences over whether indeed state capture existed, its extent and form, and what should be done about it, contributed to divisions within the NEC and other ANC structures. These divisions were evident also in government, in parliament and other sections of society.
Indeed, the issue of state capture and corruption was prominent in the contestation that took place ahead of the ANC’s 54th National Conference in December 2017. However, we would argue that over the course of time, through political debate and democratic contestation, the organisation took active measures to confront state capture. This is evident, for example, in the events that unfolded in Parliament from late 2016 and into 2017, where the ANC and other parties initiated a number of inquiries into allegations of malfeasance in some state-owned enterprises and parts of government.
It is clear from the affidavit submitted to the Commission by the former ANC Chief Whip, the late Mr Jackson Mthembu, that the determination of the ANC in Parliament to probe these allegations was both a response to the evidence of wrongdoing that was accumulating in the public domain and the implementation of the decisions taken by the ANC’s constitutional structures, especially its NEC. The ANC’s 54th National Conference was in many ways a watershed moment in the ANC’s efforts to confront state capture and corruption within its ranks. Much of the discussion at the Conference on issues of state capture was framed by a ‘Diagnostic Organisational Report’ presented by the then Secretary General Gwede Mantashe on behalf of the NEC. This report directly addressed the allegations of corruption and the involvement of ANC members and leaders in the broader context of state capture.
The Conference consequently resolved to:
- demand that every ANC member accused of, or reported to be involved in, corrupt practices account to the Integrity Commission immediately or face disciplinary processes;
- summarily suspend people who fail to give an acceptable explanation or to voluntarily step down, while they face disciplinary, investigative or prosecutorial procedures;
- publicly disassociate the organisation from anyone, whether business donor, supporter or member, accused of corruption or reported to be involved in corruption;
- ensure that ANC members and structures cooperate with the law-enforcement agencies to criminally prosecute anyone guilty of corruption; and,
- require the ANC deployees to Cabinet, especially Finance, Police and Justice, to strengthen state capacity to successfully investigate and prosecute corruption and account for any failure to do so.
These resolutions signalled a clear determination by the membership of the ANC to acknowledge the organisation’s failings, to make a clean break with corrupt practices and to initiate an ethical, political and organisational renewal of the ANC. Following the 54th National Conference, and in line with its resolutions, the ANC embarked upon a process of organisational rebuilding and renewal. This included corrective measures both within the ANC and in the State. While the latter are dealt with extensively in my statement to the Commission in my capacity as President of the Republic, it is important to note that these measures were informed and inspired by the mandate of the ANC’s National Conference, which as you might be aware is attended by thousands of members from ANC branches across South Africa.
One of the areas in which the ANC has taken clear action is to require that members of the ANC who are formally charged with corruption and other serious charges must immediately step aside from all leadership positions in the ANC, legislatures or other government structures pending the finalisation of their matters. Such members who did not step aside may be summarily suspended.
Furthermore, members of the ANC who are reported to be involved in corrupt and other serious criminal practices must go to the ANC’s Integrity Commission and provide a credible explanation for these allegations or reports. Should members fail to give an acceptable explanation, they may be suspended.
In line with the ANC Constitution, ANC members who are convicted of corruption or other serious crimes must resign from leadership positions and face disciplinary action.
It is worth mentioning that some of these requirements – especially on the so-called ‘step-aside’ provision – have in the past been the subject of much contestation within the organisation. However, there is now broad support within the organisation for its implementation. At its most recent meeting, on the 26th to 29th of March 2021, the NEC directed that “all members who have been charged with corruption or other serious crimes must step aside within 30 days, failing which they should be suspended in terms of Rule 25.70 of the ANC Constitution.”
The ANC has embarked on a process of renewal and rebuilding, to build a movement characterised by integrity, accountability and the highest standards of ethical behaviour. The process of renewal is ongoing. The rate of progress is determined not only by the existence of political will and organisational capacity, but also by the continued existence of vested interests and resistance from those who have much to lose from the corrective measures mandated by the ANC’s 54th National Conference.
I will now turn to some specific issues that the Commission has asked me to address. The first of these is the ANC’s approach to cadre development and deployment. This has been covered in some detail by the ANC National Chairperson Mr Gwede Mantashe.
In his testimony before the Commission, Minister Mantashe described the evolution and development of the ANC’s policies, the principles that have informed this approach and the structures and processes that the ANC has put in place to manage cadre development and deployment. Since even before the advent of democracy, the ANC has said that in transforming the public service to reflect the values of our democracy and the demographics and diversity of our country, we must emphasise professionalism and competence. This is reflected in our earliest policy pronouncements, such as the ‘Ready to Govern’ document in 1991, and reconfirmed at the 54th National Conference.
The ANC fully embraces the principle that all public servants should undertake their duties in a fair, balanced and non-partisan manner.
It should be noted that the deployment of cadres to strategic positions is not unique to the ANC.
It is practiced in various forms and through various mechanisms – even if not always acknowledged as such – by other political parties in South Africa and in other countries.
In our view, cadre deployment has acquired such prominence in part because of the perspective that there should be no political interference in the selection of people who work in the public sector. However, international practice suggests a more nuanced approach to this matter. For example, an OECD Working Paper on Public Governance published in 2007 said that with specific reference to appointments of senior public service staff:
“political involvement in administration is essential for the proper functioning of a democracy… However public services need protection against being misused for partisan purposes, they need technical capacity which survives changes of government, and they need protection against being used to impair the capacity of future governments to govern.”
In identifying suitable candidates for positions in public entities, the ANC does not seek to circumvent the established and often legally mandated processes for the appointment of individuals to these positions. Candidates are still expected to submit their applications, meet the necessary requirements and be subjected to the normal processes of recruitment, selection and appointment. Even with these requirements, there are several instances where individuals appointed to positions may not have been ‘fit for purpose’ or may not have had the necessary experience or qualifications. The ANC 54th National Conference recognised this problem and resolved that “the merit principle must apply in the deployment to senior appointments, based on legislated prescripts and in line with the minimum competency standards”.
It is the ANC’s view that the practice of cadre deployment should not be inconsistent with the principles of fairness, transparency and merit in the appointment of individuals to public entities. Cadre deployment cannot be faulted in principle; it is a common feature of democratic practice around the world. But we would concede that there are weaknesses in its practical implementation that make the case for greater clarity, both within political parties and the state.
Ultimately, political involvement in the administration of the public service must be circumscribed by legislation, convention and practice. We should do so to protect both political and administrative positions and to create certainty as to the division between political and administrative responsibility. The Commission also asked that I address the funding of political parties. Any successful multi-party democracy requires a diversity of functioning political parties that are capable of articulating and representing the needs, interests and concerns of the electorate. For this, political parties require funding, and, in the absence of sufficient public funds for this purpose, need to rely on donations from members, supportive individuals and businesses.
Until the adoption of the Political Party Funding Act, which took effect on 1 April 2021, there were few, if any, specific restrictions on donations to political parties and no requirements on the reporting of donations, either publicly or to any particular authority. Like other parties, the ANC relies on several sources of funding. These include funds allocated to represented political parties, which are administered by the IEC, membership subscriptions and levies, fundraising initiatives like the Progressive Business Forum, fundraising dinners and other events, and donations from individuals and companies.
Despite the absence of an official policy on donations, there is an expectation – based on the ANC Constitution, its principles and its values – that the ANC would not knowingly accept monies that are the product of a criminal act, are offered in exchange for favours or are from a source known to engage in illegal or unethical activities. The ANC has long recognised the risk presented by the lack of regulation with respect to political party funding. The lack of transparency in donations to political parties increases the potential for corruption and the exercise of improper influence on political activity and government processes.
It was to address this problem that the ANC resolved at its 52nd National Conference in December 2007 that:
“The ANC should champion the introduction of a comprehensive system of public funding of representative political parties in the different spheres of government and civil society organisations… This should include putting in place an effective regulatory architecture for private funding of political parties and civil society groups to enhance accountability and transparency to the citizenry.”
It was not until after the next ANC National Conference, in December 2012, that the Political Party Funding Bill was introduced into Parliament to achieve this purpose. We believe that the Political Party Funding Act will have far reaching implications for the integrity and transparency of our political system, and will help to rebuild public trust in the political process. While the Political Party Funding Act deals with donations to political parties, the ANC has also identified weaknesses in its approach to the funding of internal party leadership contests. Specifically, it has noted that its guidelines on the conduct of internal leadership elections are not suited to the conditions of the time, and has initiated a process to review its policies on this matter. This issue forms part of the discussion documents published last year in preparation for the ANC’s upcoming National General Council.
In raising this issue during the NEC meeting of 26 July 2019, I said as President: “In the absence of clear, appropriate and realistic guidelines, our leadership contests will continue to play themselves out in the shadows, in conditions of secrecy and mistrust, encouraging patronage and factionalism.”
In conclusion, the position of the ANC on leaders and members who have been complicit in acts of corruption or other crimes is clear. Their actions are a direct violation, not only of the laws of the Republic, but also of the ANC Constitution, its values and principles, and the resolutions and decisions of the ANC’s constitutional structures. Such members must face the full legal consequences if their actions. They cannot rely on the ANC for support or protection, nor may they appeal to the principle of collective responsibility.
In accounting for their actions, they must be accountable for their actions themselves, because the ANC did not and could never direct its members or leaders to commit acts of corruption. While the ANC distances itself from those within its ranks who have been involved in corruption or who are complicit in state capture, the organisation must – and does – acknowledge that it must provide explanations for the matters currently under investigation by the Commission. State capture took place under our watch as the governing party.
It involved some members and leaders of our organisation and it found fertile ground in the divisions, weaknesses and tendencies that have developed in our organisation since 1994. The vast majority of ANC leaders, cadres and members are vehemently opposed to corruption in all its manifestations. But we all acknowledge that the organisation could and should have done more to prevent the abuse of power and the misappropriation of resources that defined the era of state capture. Particularly during the period under review by this Commission, the ANC does admit that it made mistakes as it sought to execute the mandate it was given by the voters.
It had shortcomings in living up to the expectations of the people of South Africa in relation to enforcing accountability and engendering a culture of effective consequence management. As the leadership of the African National Congress, duly elected at its 54th National Conference, we acknowledged these shortcomings of our organisation at our 54th National Conference and do so now.
For this, we acknowledge to the people of South Africa that we did not always live up to the values and principles that have defined the movement for over more than a century of its existence. We are determined and we undertake to work alongside all South Africans to ensure that the era of state capture is relegated to history and that the excesses that took place may never again occur in our country.
I thank you.
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