In presenting his analysis of the Third Reich in his treatise ‘The Dual State: A Contribution to the Theory of Dictatorship’ in 1942, German political scientist Ernst Fraenkel identified two states of government:
- The normative (upholding the rule of law), and
- The prerogative – “that governmental system which exercises the unlimited arbitrariness and violence unchecked by any legal guarantees”. *
On the face of it, South Africa still functions under the rule of law. Sort of. And the government has not put into law legislation that is comparable with that passed in the Third Reich. Nor has it had to put into law any justification for criminality.
But therein lies the problem.
Our courts can only consider a matter before the court. And it appears to be so easy to keep matters out of the court.
The government doesn’t have to legalise criminality (making it a prerogative state) when those in government, or connected to those in government, do as they please.
A few examples:
- The government cannot rein in its own officials, many of whom have appeared before the Zondo Commission of Inquiry into State Capture. Those who have been ‘fingered’ by witnesses appear unabashed and unashamed, and obviously confident that the National Prosecuting Authority (NPA), struggling to get to its feet, may never get to them.
- Has any high-ranking government official implicated in criminality appeared in court, been charged, made to forfeit all ill-gotten gains, or forfeited their state pension?
- When will the cases of all those implicated in the recent fraudulent personal protective equipment (PPE) tender awards be brought before court? Two years’ time? Three?
- No one has been charged with selling off South Africa’s strategic oil reserves.
- No action has been taken against Patricia de Lille, Minister of Public Works and Infrastructure, in regard to various allegations, including the Beitbridge Border fence ‘washing line’ (R37 million was spent on the construction of an ineffectual 40-km border fence separating Zimbabwe and South Africa).
- The NPA will apparently reinstitute perjury charges against former acting national director of Public Prosecutions Nomgcobo Jiba, who allegedly lied under oath a long time ago.…
- The latest Auditor-General report on the state of the municipalities, and the extent of corruption, has not been acted on.
- The National State of Disaster has been just that. A disaster. An embarrassment. A means by which to enrich a few.
- Very few state-owned entities are clean.
- The Gupta Waterkloof landing – so many laws broken. No charges.
The latest debacle raises more questions than just the matter of the taxpayer-funded cost of the jaunt by the ANC to Zimbabwe on a South African National Defence Force Jet departing from Air Force Base Waterkloof.
The Department of International Relations and Co-operation (Dirco) must have approved this trip, surely?
How did ANC officials manage to fly across the border into a neighbouring country without going through passport control?
Did these ANC officials – Ace Magashule, Lindiwe Zulu, Nomvula Mokonyane, Enoch Godongwana, Tony Yengeni and Dakota Legoete – use their private South African passports?
Or were they issued with official passports? According to the Department of Home Affairs “official passports are issued to officials attached to government institutions who have to travel on official business” and are “valid for a period of five years”.
If travelling on official passports, and this was non-government business, is this not a criminal offence? These parties abused state resources, ignored Lockdown Level 2 restrictions, contravened the Defence Act.…
Similar to the parasitic roots that penetrate the host, the roots of corruption have spread far and wide and have penetrated the inner core of government.
South Africa’s constitutional democracy, body of laws, and strong judicial system are not enough to withstand the seeping criminality.
Crumbling from within, South Africa is morally bankrupt.
It has become a dual state, comprising the normative and the criminal.
If allowed to continue, it is just a matter of time before the latter eclipses the former.
* Per the 1942 review by Heinz Guradze, assistant professor of political science and philosophy, Park College, Parkville, Missouri).