Lawyers representing Malusi Gigaba wrongly argued that Nomachule Mngoma shouldn't testify at the Zondo commission due to marital privilege. Omphemetse Sibanda explains why the lawyer got it wrong.
The State Capture Commission has made it clear that former Cabinet minister Malusi Gigaba will not be allowed to hide behind the veil of marital privilege to prevent his estranged wife Nomachule Mngoma from giving damning testimony about his relationship with the Guptas.
Deputy Chief Justice Raymond Zondo, without saying a lot, conveyed a message that those required to turn up at the commission can run from accountability, but can't hide their wrong deeds or their complicity to corruption and state capture.
The testimony of Mngoma on Monday night painted a picture of a minister handled by the Gupta family and that Gigaba's family had benefitted unduly and illegally from dirty Gupta money.
As others put it, Mngoma spilt the beans, and she looked set not to hold back at her estranged husband's messy relationship with the globally discredited and disgraced Gupta family. Interestingly, former SAA board chairperson Dudu Myeni also proved to be Gigaba's poison chalice after she testified that she orchestrated, together with Ajay Gupta, to move Gigaba back to the department of home affairs.
Marital privilege laws
Malusi Gigaba's lawyer Richard Solomons, an experienced lawyer, also tried his luck unsuccessfully at playing ignorance of the law relating the country's marital privilege laws. This attempt cannot be construed as his incompetence of the applicable law. It may be more about trying to keep hidden the alleged criminal relationship of Gigaba with the Guptas.
"Communications that took place between Mr and Mrs Gigaba (Mngoma) within the marital privilege context should not be aired in public. Secondly, we say because of the cruel nature of the divorce proceedings, there is an inherent risk in the evidence and the integrity of the evidence that she will give, and that will impact upon questions of credibility," argued Solomons.
Unfortunately for Solomons and his Stalingrad tactics, Mngoma let the cat out of the bag with her explosive testimony. The attempt by Solomons to keep sealed the testimony of Mngoma under the guise of marital privilege could have meant another blow to the efficacy of evidence gathering at the Zondo Commission if he succeeded in preventing .
Indeed, in terms of Section 198 of the Criminal Procedure Act 51 of 1977 (the CPA), spouses can invoke the right to marital privilege and refuse to disclose both admissible and even highly relevant evidence when testifying. But there is an important point that Gigaba's legal representation did not unequivocally admit: Marital privilege applies to criminal proceedings, and the commission is a fact-finding forum and not a criminal court.
Before the Zondo Commission is accused of arbitrarily taking away Gigaba's rights and privileges, it must be highlighted that the commission does not follow the approach in criminal proceedings.
Section 198 states that spouses cannot be compelled to testify against each other unless the crime for which the accused spouse is charged appears in the categories listed in Section 195 of the CPA.
I have no doubt Gigaba's lawyers are aware that the South African rules governing marital privilege are contained in Section 195 to section 199 of the CPA. Solomon's argument that marital privilege applies to non-criminal proceedings such as the Zondo Commission could make a good test case. Still, it does not represent the proper understanding of the South African law on marital privilege.
Besides, in this case, the right to claim ownership or to waive the privilege resides with Mngoma and not Gigaba. The marital testimonial privilege is vested only in the witness spouse and in this case, Mngoma.
UK sanctions against the Guptas
Once again, Deputy Chief Justice Zondo made a justiciable ruling and showed nerves of steel, even with the numerous attempt to undermine or undercut his work at the commission.
Perhaps Gigaba and others alleged to have had a corrupt relationship with the Guptas will understand that it is not always about sour grapes when accountability is required.
The best they can do is to disprove the allegations as wrong and without merit.
Corruption is a cancer that will destroy South Africa to the point of no return.
To quote from the statement made this month in the UK Parliament by the UK Foreign, Commonwealth & Development Office and the Foreign Secretary, Dominic Raab, during the unveiling of the new Global Anti-Corruption Sanctions Regulations: "Corruption has an immensely corrosive effect on the rule of law, on trust in institutions. It slows development it drains the wealth of poorer nations. It keeps their people trapped in poverty. It poisons the well of democracy around the world. Whistleblowers and those who seek to expose corruption are targeted. Some have paid the ultimate price with their lives."
The launch of the Global Anti-Corruption Sanctions Regulations in the UK should bolster the commission's resolve to move undeterred and without fear or favour in its work unearthing the corruption rot in South Africa.
According to James Duddridge, UK Minister for Africa: "The launch of the Global Anti-Corruption Sanctions regime sends an important message: that the UK will stand up for fair and open societies around the world by taking action against those responsible for serious corruption."
It is as if the new sanctions regime was specifically intended to help the ineffectiveness of the South African institutional and normative framework in dealing with corruption and corrupt activities, particularly in dealing with the illusive Gupta family.
"Today, the UK is supporting the important efforts of the South African authorities to tackle corruption, by imposing sanctions against Ajay Gupta, Atul Gupta, Rajesh Gupta and Salim Essa for their roles in serious corruption which caused significant damage to the South African economy," said Duddridge.
It should worry associates of Ajay, Atul, and Rajesh "Tony" Gupta, who were referred to as "at the heart of a long-running process of corruption in South Africa which caused significant damage to its economy", are facing sanctions in the UK. They could be next.
According to the related Policy Paper intended to highlight factors relevant to the Global Anti-Corruption Sanctions Regulations, the UK government "is also likely to consider whether involved persons have appropriately raised suspicions or concerns with law enforcement agencies or other appropriate authorities, or otherwise taken reasonable steps to avoid unintentionally becoming involved at the time or to enable remedial or law enforcement action since".
In our context, the question would be: Did our political elites and those who came into contact with the Guptas and other corruption paddling individuals, families and organisations alert the relevant South African authorities to the red flags?
Reliance on other countries
For how long can our government rely on other countries to place measures with a chilling effect for corruption in South Africa? Doing it ourselves is overdue.
Let us continue to support the work of the Zondo Commission so that it can issue a credible report at the expiry of its mandate.
As Britons did, South Africa must send "the clearest message to all those involved in serious corruption around the world…" that "you can't come here. You can't hide your money here".
Finally, our politicians and public office bearers must stop resisting going before the Zondo Commission and take the exemplary lead by demonstrating before the commission that their hands are clean and tucked away from the cookie jar.
- Omphemetse Sibanda is the Dean of Law at the University of Limpopo.
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