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. — Moneyweb.