Lead us not into temptation, Mr President
Whether you are Cyril Ramaphosa or Helen Zille, the constitution declares that the mere risk of a conflict of interest is enough to sound alarm bells
The law concerning the risk of conflict of interests could not be clearer. Section 96(2) of our supreme law, the constitution, lays down that the president, his cabinet and deputy ministers may not: “(a) undertake any other paid work; (b) act in any way that is inconsistent with their oath of office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or (c) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”.
Section 136(2), which deals with the conduct of members of provincial executive councils, is identically worded. The codes of ethics that bind the national and provincial executives have to be consistent with these constitutional provisions on pain of being impugned for their inconsistency with the supreme law, as provided for in section 2 of the constitution. For present purposes it is not necessary to explore the flesh the codes put on the bones of the constitutional provisions set out above.
The evil to guard against is the risk of a conflict of interests, not an actual conflict. The nature of the risk of a conflict of interests has been given a strict interpretation by the public protector in her report on the complaint by provincial legislature member Cameron Dugmore against Western Cape premier Helen Zille. The finding against Zille, who did no more than encourage her province to make computers available so her son could do some free maths coaching for township students during school holidays, has been taken on review, so the courts will be given the opportunity of ruling on the matter in due course.
The courts will be guided by the decision of the Constitutional Court in the Nkandla matter, in which the provisions of the constitution relating to the risk of a conflict were discussed in the following terms by the unanimous court:
“ There is thus a direct connection between the position of president and the reasonably foreseeable ease with which the specified nonsecurity features, asked for or not, were installed at the private residence. This naturally extends to the undue enrichment. Also, the mere fact of the president allowing nonsecurity features, about whose construction he was reportedly aware, to be built at his private residence at government expense, exposed him to a ‘situation involving the risk of a conflict between [his] official responsibilities and private interests’.
“The potential conflict lies here. On the one hand, the president has the duty to ensure that state resources are used only for the advancement of state interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of s96, all that needs to be proven is a risk. It does not even have to materialise.”
No doubt the public protector will, in opposing the review launched by Zille, place great reliance on the last two sentences in the passage from the Nkandla judgment quoted above. These words could also impact negatively on President Cyril Ramaphosa, who confidently stated during oral question time last week that he is not in a conflict of interest situation despite the activities of his family, both by blood (his businessman son Andile and his brother) and by marriage (his brothers-in-law Jeff Radebe and Patrice Motsepe, respectively the longest-serving member of cabinet and current energy minister, and renewable energy mogul).
The thing is that a mere risk of a conflict of interest is enough to put the president on the wrong side of the law when it comes to the proper interpretation of section 96(2) of the constitution. Unfortunately, those interrogating the president during question time did not seem to understand the detail of the judgment they won in the Nkandla matter, nor had they mastered the significance of the use of the words “the risk of a conflict between their official responsibilities and private interests”.
The president still owes the nation an explanation as to why he sees no risk of a conflict when that risk would appear on the face of it to be manifest from the situation in which he finds himself. Moreover, he declined, despite the “openness of governance” requirements of the law, to answer a question directed at establishing the value of the contract between his son’s business and Bosasa. The stock in trade of that business appears to be, at least in part, political connectivity, which has a high risk of conflict of interest or undue enrichment.
Alas, the opposition did not ask the right questions.
• Hoffman, an advocate, is a director of Accountability Now.