The media in SA has been abuzz with stories concerning the probity of the relationship between DA members of cabinet (and latterly) of parliament on the one side and Resolve Communications (and its secure-SIM-card-preoccupied clients) on the other.
The redoubtable Rebecca Davis of Daily Maverick appears to have drilled down further than most into the background facts. Davis has followed up on her initial effort.
Pushback against the wave of largely unsubstantiated allegations comes from Gareth van Onselen, The smear operation against Tony Leon;Jonathan Katzellenbogen in the Daily Friend, The lobbying storm in a teacup, and also Ghaleb Cachalia in Business Day.
Too little attention has been paid to the framework of underlying moral and ethical aspects, as well as to the legalities of the situation outlined in the coverage thus far in the media in general.
It appears that lobbying is under-regulated in SA, to the possible detriment of the public interest. The cure may be better regulation and a better understanding of the terrain. Lobbying done ethically and properly is beneficial, and the converse applies.
It is instructive, while the relevant factual matrix has yet to emerge more fully, to consider the legal and ethical framework that is applicable to the story underlying the coverage mentioned above.
General overview of conflicts of interest.
The notion of “conflict of interest” in South African law and practice has many facets and nuances, some overlapping and some quite separate. The notion is not well understood and is unevenly applied in practice, when it is applied at all.
The brouhaha around the engagements between DA functionaries and the communications company chaired by the former leader of the opposition, former ambassador to Argentina and assistant midwife to the birth of the GNU in 2024, Tony Leon, who is a lawyer, provides a case study that touches on many aspects of a conflict of interest. While there has been much commentary, a News24 poll and wide media coverage, there has not been any close analysis of what exactly it is that has been done wrongly, if at all, and, if so, by whom.
In a jocular aside at the recent Public Law Conference held at UCT, a senior member of the SA judiciary remarked that it was a useful start to ask AI when in doubt about the meaning of obscure legal concepts. (He was referring to the unwritten concept of law called “comity”).
The following is what a basic AI search, using Gemini which leans on the Ethics Institute in setting out the SA position in relation to conflict of interest, reveals:
“In South Africa, a conflict of interest occurs when an individual’s personal, financial, or professional interests interfere—or could reasonably be perceived to interfere—with their duty to act in the best interest of their employer, client, or the public.
In the South African context, this concept is broadly divided into three areas:
1. In the Workplace (Employment Law)
South African common law and the Labour Relations Act require employees to act in “good faith” and exclusively in the best interests of their employer.
- Moonlighting: An employee doing similar work for a competitor or privately running their own competing business without the employer’s knowledge.
- Nepotism & Kickbacks: An employee awarding tenders or hiring suppliers based on personal gain or family ties, rather than the company’s best interest.
2. Corporate Governance (The Companies Act)
For directors and prescribed officers, conflicts are strictly codified in Section 75 and Section 76 of the Companies Act 71 of 2008.
- Directors are statutorily bound to avoid any conflict between their duties to the company and their personal financial interests.
- If a conflict exists, the directors must formally disclose it and recuse themselves from any related board deliberations or voting. Failing to do so can result in personal liability or criminal charges.
3. Public Sector & State Capture
Due to South Africa’s history of corruption and “state capture,” conflicts of interest in the public sphere are highly regulated by the Constitution, the Public Service Act, and monitored by bodies like Corruption Watch.
- Tender Fraud: A public official awarding state contracts to their own private businesses, family, or friends.
- Secondary Employment: Public servants engaging in remunerative work outside of the public service without explicit approval from their Executive Authority.
4. Professional Services (Law, Medicine, Auditing)
Professionals are bound by strict ethical codes (e.g., the Legal Practice Act). A conflict arises when a professional’s loyalty or independent judgment is compromised.
- For example, a lawyer acting for both sides in a “friendly” commercial transaction, where the interests of both parties inevitably diverge.
The Three Types of Conflicts
A conflict does not require actual corruption or dishonesty to exist. In SA law, it is divided into:
- Actual: Interests and duties directly clash.
- Potential: A clash is likely to develop as a situation progresses.
- Perceived: Even if you can remain fair, the situation looks compromised from the outside.”
Position of ministers and deputy ministers
When one drills down into the conduct of national cabinet members and deputy ministers, a further wrinkle in the system in place in SA, or a fourth type of conflict, becomes apparent.
Section 96 of the Constitution prescribes that they “may not act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests.”
The recent interactions over which so much printer’s ink has been spilt allegedly involve current ministers and deputy ministers who were close to Leon when he was in politics. While Resolve Communications may be at large to ply its trade, the ministers and deputy ministers are constitutionally obliged to not expose themselves to the risk of a conflict of interests. It would amount to unconstitutional conduct and a breach of Section 96 of the Constitution to do so.
This point was made vividly in the litigation over the unauthorised enhancements to the Zuma family spread at Nkandla. The courts, if called upon to adjudicate the inwardness of the matters currently complained of as regards interactions with Resolve Communications, will be guided by the decision of the Constitutional Court in the Nkandla matter, in which the provisions of the Constitution quoted above, and 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 non-security 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 non-security 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 Section 96, all that needs to be proven is a risk. It does not even have to materialise.”
It is certainly arguable that doing business with Resolve Communications does involve the risk of conflict for any ministers or deputy ministers implicated in the lobbying activities reported in the media. This is so because, as the Constitutional Court has ruled against Jacob Zuma, the risk of conflict is such that conflict “does not even have to materialise”.
Of course, the limitations set in Section 96 of the Constitution do not apply to Resolve Communications directly. However, its personnel should be mindful of Section 96’s prescribed “risk of conflict” to which they are, or may be, exposing their clientele or their contacts in government. They should avoid placing their cabinet clients on the wrong side of the prohibition that they may not expose themselves to the risk of a conflict, whether or not that risk materialises.
Position of MPs in relation to conflict of interest
Members of parliament (MPs) are not subjected to the strict rules set in Section 96. Parliament has its own rule and code of ethics. Those members of parliament who also grace the national cabinet are bound by both.
MPs are strictly prohibited from lobbying for remuneration (including any financial gain or other benefit). They are obliged to make declarations of interest. While MPs can make representations or lobby on behalf of constituents or organizations, they must declare their private interests and any potential conflicts before doing so. Gifts and benefits that are not trivial must be disclosed in the parliamentary register of members’ interests.
Like everyone else, parliamentarians are bound by the Prevention and Combating of Corrupt Activities Act, which makes it a criminal offence to accept or solicit bribes in exchange for political influence. It is illegal to offer or accept any “gratification”—such as money, favours, or political campaign donations—to improperly influence any public official, including MPs, in the exercise of their duties.
Their Code of Conduct stipulates that MPs must act in the public interest and avoid placing themselves under any financial or other obligation to outside individuals or organizations.
Position of the public
In turn, those interested in lobbying parliament must do so legally and ethically. Lobbying is a recognized part of the political process, provided it remains transparent and lawful via:
- Public Submissions: Interest groups can submit written comments or request to present their views orally to the relevant Portfolio Committees during the processing of a bill.
- Petitions: The public can use formal petitions to formally bring an issue to the attention of Parliament.
- Public Participation: MPs are constitutionally mandated to facilitate public involvement, making direct engagement, policy discussions, and advocacy campaigns common practices.
The basic rules are in the provisions of Section 1 of the Constitution itself which records the applicable values: “a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
Ours is a participatory democracy under the rule of law. The rules around lobbying exist, but they may require tightening up, in the era of coalition politics that dawned at national level in 2024.
[Image: Brett Jordan on Unsplash]
The views of the writer are not necessarily the views of the Daily Friend or the IRR.
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