Constitutional Hill

corruption

Jackie Selebi is finish and klaar

Dec 3rd, 2011
by Pierre De Vos.
150 comments

We definitely live in a strange place (as Bernoldus Niemand sang in “Reggae Vibes is Cool”). This is a society in which somebody was found guilty of bribing the President of the country, but the President was never prosecuted for being bribed; one in which the Police Commissioner is sent to prison for being corrupted by a really slick crook, but that crook (allegedly also involved in the “assisted suicide of another businessman-crook) never received a jail term; a society in which a former President fired the head of the prosecuting authority after he wanted to arrest the very Police Commissioner (now facing 15 years in jail for corruption) before that head of the prosecuting authority was himself fired for “undermining national security” by wanting to arrest the very Police Commissioner who showed a National Intelligence Estimate (NIE) prepared for the President to the very crook who bribed the Police Commissioner.

Today, in the judgment of Selebi v S, 5 judges of the Supreme Court of Appeal (SCA) confirmed that former Police Commissioner Jackie Selebi (the very Selebi who showed the NIE to Glen Agliotti after Agliotti had given him money) is guilty of corruption in terms of section  4(1)(a)(i)(bb) of the Prevention and Combating of Corrupt Activities Act  which states that:

Any public officer who . . . accepts . . . any gratification from any other person . . . in order to act, . . . in a manner that amounts to the . . . misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; . . . is guilty of the offence of corrupt activities relating to public officers.

In the main judgment, Deputy President of the SCA (Mr Justice Khayelihle Kenneth Mthiyane) pointed out that leave to appeal was only granted to consider two issues. First, the court had to decide whether the High Court was correct when it found that the state has proven beyond reasonable doubt that Mr Selebi had received payment from Agliotti. Second, it had to consider the question whether the State has proven that Selebi has provided Agliotti with any favours as a result of money paid by him to Selebi.

All the judges agreed that the State had indeed done so.

It is clear that Mr Selebi’s legal strategy hinged on denying that he ever received any money or other favours from Agliotti. This was a high risk strategy because once the court found that money did change hands and favours were done, it inevitably led to the conclusion that Selebi had a corrupt intention when he received the money, This is so because Mr Selebi had admitted during his testimony that he believed Agliotti was a “hustler” and that if a “hustler” like Agliotti gave him anything he would immediately know that it was for an illegal purpose. He added that if Agliotti made any payment to him he would know that he intended to induce him to afford him some favours in one way or another.

This strategy might have worked if all the state had to rely on was the testimony of Mr Agliotti, who was found by the court not to be a credible witness. Unfortunately for Mr Selebi, the state provided ample corroborating evidence of payments made and benefits given by Mr Agliotti to Selebi and where it did the court found that there was sufficient evidence to find that payments were indeed made.

The corroborating evidence included that of Agliotti’s former girlfriend Dianne Muller who was found to have been an impressive witness. The “bizarre spending patterns” of Mr Selebi, which showed that for several months he hardly spent any of his salary, also added corroboration.

Most damning for Mr Selebi was perhaps the finding that he had shown a National Intelligence Estimate (NIE report) to Agliotti. The court found that Selebi shared this information with Agliotti to enable Agliotti and the Kebbles to take steps to protect themselves. Accordingly, the portion of the NIE document was shown to Agliotti for the benefit of Agliotti and the Kebbles. The fact that Selebi had admitted to showing a document to Agliotti provides, in itself, corroboration for Agliotti’s evidence that Selebi.

In a separate concurring judgment Suretta Snyders emphasised that the trial court, faced with the absence of reliable, detailed evidence from Agliotti, “exercised what can only be described as extreme caution and only convicted the appellant on the basis of a few payments for which clear corroboration existed” and continued:

Insofar as the general corroboration relied on by the trial court is concerned, I am of the view that the trial court, in applying the rules of caution and seeking corroboration, was benevolent to the appellant and preferred to refrain from convicting the appellant in relation to a specific payment when the faintest doubt was raised. Thus the appellant was not convicted in relation to four more cheques that reflected inscriptions that could be interpreted as references to the appellant.

Snyders, in concluding that the relationship between Agliotti and Selebi was neither a pure friendship or a professional one concluded that:

One does not expect the National Commissioner of Police to take his friend along on police business; to take his friend and informer along to the very meeting where the verification of the informer’s information is to take place; to meet his friend to shop together during office hours; to favour his friend by attending to minor complaints for which structures exist to be dealt with; and to divulge information regarding police operations to his friend’s friends. If the relationship was so close to have made these occurrences ordinary, one would have expected it to spill over to the families of the appellant and Agliotti, which did not happen.

How did the appellant explain this unusual relationship? It was repeatedly put to state witnesses on his behalf that he had an innocent friendship with Agliotti. I have already illustrated that to have been highly improbable, to the point of being unbelievable. During his own evidence, however, the appellant dramatically changed this version and described the relationship as one between informer and handler. This explanation is equally inherently improbable. Their relationship was a public one. Agliotti was previously, from the beginning of 2002 for a period of one year, registered as a police informer and had an official handler, not the appellant. He lost that status within a year and was deregistered as an informer. The appellant’s mendacity in this regard, dealt with extensively by the trial court, is yet another indication that the relationship between them was extraordinary, not one of friendship, nor one between informer and handler.

The appeal did not deal with constitutional issues dealing with allegations that the trial judge had to recuse himself and that conduct by the prosecutors had rendered the trial unfair as no leave to appeal the findings of the trial court on these matters were granted by the trial court or the SCA. This will make an appeal to the Constitutional Court more difficult (if not impossible) to sustain. In S v Boesak the Constitutional Court found that:

A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not a constitutional matter. In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory. There is a need for finality in criminal matters. The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial. An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.

Unless the Constitutional Court is prepared to entertain the arguments of Mr Selebi’s lawyers that he did not have a fair trial — something explicitly rejected by the trial court and which the SCA refused even to entertain — this is the end of the road for Mr Selebi.

This case is remarkable in many ways. It has demonstrated that even the South African Police Commissioner was corruptible and dented trust in the police. Nevertheless, at the same time it is remarkable that the Police Commissioner was successfully prosecuted — something that would happen in very few countries in the world as it is notoriously difficult to investigate and prosecute members of the police leadership who usually have the resources to derail any such investigation. It would never have happened in the absence of the Scorpions, a relatively independent corruption fighting unit situated in the Prosecuting Authority.

It is also remarkable that the Police Commissioner will now spend time behind bars while the person who bribed him will not — despite the fact that he was not a truthful witness and never received indemnity from prosecution. There might be good reasons why the Scorpions went after Selebi and in effect let Agliotti off the hook (who was later unsuccessfully prosecuted for his alleged involvement in the Kebble murder while those who confessed to having committed the murder were granted indemnity). This would be that a crooked head cop subverts the law and undermines respect for the Rule of Law in a way that the actions of an ordinary gangster could never do. But it does leave a bad aftertaste that Selebi is going to jail while Agliotti is a free man.

Lastly, the case is remarkable because it once again reminds us of the mendacity of former President Thabo Mbeki and his strange behaviour around the Selebi matter. On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, in which he stated that:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

As I noted before, it is not clear how this claim could have been true. As the Ginwala Enquiry Report found:

It is not disputed that Adv Pikoli met with the Minister and briefed her on the investigation into the National Commissioner of Police on 13 separate occasions: In March 2006, in August 2006, on 9 November 2006 [the very day Mbeki wrote the letter], on 16 November 2006, on 11 March 2007, on 13 March 2007, on 17 March 2007, on 28 March 2007, on 8 May 2007, on 25 June 2007, on 11 September 2007, on 18 September 2007 and on 23 September 2007. Following these meetings he furnished the Minister with two written reports on 19 March 2007 and 19 September 2007.

It is also common cause that Adv. Pikoli met and briefed the President on the investigation against the National Commissioner of Police on 10 occasions: In March 2006, in August 2006, on 9 or 10 November 2006, on 14 November 2006, on 20 November 2006, on 11 March 2007, on 9 May 2007, on 20 May 2007, on 15 September 2007 and on 16 September 2007. The evidence is that he gave the President written reports on 7 May 2007 and 16 September 2007.

The SCA’s confirmation of the conviction of Selebi — based on some of the evidence provided to President Mbeki at the time, which he claimed never to have seen  — thus underlines once again that for some reason unknown to us the former President had not believed the information provided to him (unlike the High Court and the SCA who found that it proved Selebi’s guilt beyond reasonable doubt) and had then misled the public about receiving any such information. Why he did this, will probably remain the biggest mystery of this sad saga.

How to fix the Secrecy Bill and make it constitutionally compliant

Nov 24th, 2011
by Pierre De Vos.
90 comments

The South African democracy is founded, inter alia, on the values of “universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness”. The notion of open, accountable and transparent government runs like a golden thread through the Constitution which contains several specific provisions to give effect to these values. To this end the Bill of Rights contains two specific clauses that guarantees open, transparent and accountable government.

Section 16 of the Bill of Rights guarantees for everyone the right “to freedom of expression, which includes freedom of the press and other media; freedom to receive or impart information or ideas; freedom of artistic creativity; and academic freedom and freedom of scientific research”. Section 32 guarantees for everyone the right to access  ”any information held by the state; and any information that is held by another person and that is required for the exercise or protection of any rights”.

The Bill of Rights, it must be noted, does not say that only some people have a right to access information held by the state, neither does it state that everyone has a right to access only that information held by the state which the government of the day believes the population could be trusted with. These provisions are sweeping and all-encompassing, giving substance to the notion of an open and democratic society established by our Constitution. Any legislation that curtails the freedom of the media to inform the public and (just as important) the freedom of ordinary people to access or receive and impart information, infringes on the right guaranteed in section 16. Legislation that prohibits people from accessing any information by the state similarly infringes on section 32 of the Bill of Rights.

There can therefore be little argument that the Secrecy Bill infringes on these two rights which the Constitutional Court has stated is pivotal for the proper functioning of the democracy. However, no right is absolute and can be limited but only to the extent that the limitation is “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose”.

At the heart of the Secrecy Bill debate is whether the limitation on our rights contained in it conforms to what is acceptable in an open and democratic society and whether less invasive measures could have been employed to achieve a legitimate purpose of restricting some state information in order to protect South Africans from terrorism and other attacks and to protect us from attacks agains the constitutional order itself (attacks, it might be add, which can easily emanate form the security and intelligence services itself – just as the people of Egypt). Any restrictions that go beyond this will not pass constitutional muster. Where the restrictions are over broad, they cannot be justified. That is why the Secrecy Bill, in my view at least, is clearly unconstitutional. Let me explain.

Section 12 of the Bill allows various organs of state (the military, the police, the intelligence services and any other government department or organ of state given permission to do so) to classify documents when it could cause harm to South Africa’s national security. The first problem with the Bill is that “national security” is defined too broadly. It states that “national security” includes the protection of the people of the Republic and the territorial integrity of the Republic against various threats, including “exposure of economic, scientific or technological secrets vital to the Republic”. This definition is over broad in three distinct ways.

First, the word “includes” must be deleted as it suggests that the definition does not contain a closed list of factors that constitutes national security but is open ended. This gives classifying bodies the right to “invent” other national security concerns as it sees fit — even when these have not been included in the definition contained in the Bill.

This must be read with section 14(3), which must also be deleted. This section states that:

Specific considerations with regard to the decision whether to classify state information may include whether the disclosure may-

(a)  expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;

(b)  clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security, are authorised;

(c)  seriously and substantially impair national security, defence or intelligence systems, plans or activities;

(d)  seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;

(e)  violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or

(f)  cause life threatening or other physical harm to a person or persons.

Read with the open-ended definition of “national security”, this section invites spies, the military and the police to turn South Africa into a secretive police state. It allows the security services to classify almost any document about its activities. If rogue elements in the security services use underhand methods to spy on citizens; to use dirty tricks against legitimate political opponents and social movements and to target them unfairly for criminal investigation; to undermine opponents of one or another faction within the governing party, these provisions would allow them to classify all documents relating to that.

It would also allow ministers and the top brass of the military and the policy to draw a veil of secrecy over their own activities, including their travel and their spending on hotels and other luxuries. Lastly, it would also allow the state to hide any information about money donated by a foreign government to the governing party or to ministers, state officials or the President; bribes given by a foreign company to government officials, ministers opt the President or any information about any contract concluded with a foreign company — which in future would include almost all aspects of arms sales by or to South Africa.

Section 3 should also be amended. At the moment it allows all security services (including those trusted police commissioners who seem to be so fond of crooks) from classifying documents and also allows the MInister of State Security to give permission to any other organ of state (from each municipality and government department, to the Natal Sharks Board) to classify documents. Only the Minister of State Security should be given this power and only for documents in possession of the intelligence services.

Section 15 and 43 are also over broad and hence unconstitutional. Section 15 states that a person who is in possession of a classified “record knowing that such record has been unlawfully communicated, delivered or made available other than in the manner and for the purposes contemplated in this Act… must report such possession and return such record to a member of the South African Police Service or the Agency to be dealt with in the prescribed manner”. Anyone who fails to do so commits a crime for which he or she could be sent to jail for 5 years. Section 43 prohibits many categories of people (excluding whistle-blowers in the employment of the state who complies with the strict provisions of the whistle-blower act, but including all members of the media) from disclosing the content of classified documents and anyone who contravenes this section could be sent to jail for 5 years.

Thus a person would be criminally liable if he or she is in possession of the document or makes that document public even if the document was wrongly classified to cover up corruption, authoritarian actions by the security services or to hide illegal activities or maladministration by the securocrats or the police. There are two ways to deal with this. Both are plausible and easily achievable by the legislature.

First, a limited public interest defence can be written into the Bill which will set out criteria for when classified documents could be lawfully possessed and published because it was in the public interest to do so. Such a section could list situations in which possession and publication will be allowed. This could include when documents are classified merely to cover up corruption or maladministration; where it reveals criminal activity on the part of individuals inside and outside the government; where documents reveal actions by officials or politicians that have the potential to undermine the constitutional democracy; or when the documents reveal actions which endanger the lives of citizens. This could all be made subject to a very carefully crafted limitations stating that this publication will only be justifiable if the public interest in publishing the information outweighs the interest of the state in keeping it  secret.

Alternatively the Bill could state that where documents are wrongly classified to cover up corruption, illegal activity or activities that undermine democracy or where the classification was never justified in terms of the act (something that can be determined by a court on objective grounds), a person could not be prosecuted for leaking or publishing the documents. I prefer the first option but perhaps the second option would go some way to limit the far-reaching effects of this legislation.

Lastly, the sections on the Classification Review Panel will have to be redrafted, especially sections 22(3)-(5) and section 24. This panel is empowered to review classification decisions and in order for it to provide the intended safeguard against wrongful or criminal classification of documents, it would need to be absolutely independent. These sections allow the majority party in the National Assembly to appoint the panel and to remove any of its members. This means that the panel van never be perceived to be independent and will be prone to political manipulation. To fix these sections, it could be rewritten to allow for the appointed (and the removal) of members of the review panel by 75% majority of members of the National Assembly. Alternatively, some other mechanism requiring consensus of all the major parties in the National Assembly to appoint and remove the members of the Review Panel is needed.

I believe these amendments would go a long way to restrict the ambit of the Act and if these amendments are made by the NCOP (or by the National Assembly after the President has referred it back to the National Assembly because of its unconstitutionality) it might pass constitutional muster. If not, the President must not complain that the Constitutional Court unlawfully makes policy by declaring invalid acts passed by the Parliament when it finds aspects of this Bill unconstitutional. All that is needed is for cool heads to listen to sound advice. It was offered here and elsewhere. Now it must just be acted upon.

Who can we trust?

Nov 22nd, 2011
by Pierre De Vos.
166 comments

Very few people implicitly and unconditionally trust all government officials, all members of the cabinet and all the members of the intelligence services of their country. Few, surely, believe that they will always act scrupulously, honestly and in strict accordance to the law and the Constitution. (Hell, I am not even sure President Zuma fully trusts all his own ministers.)

One might well implicitly trust ministers and government officials if they belong to the politically party that one passionately supports. Thus, some DA members might blindly trust Helen Zille, while some ANC members might blindly trust Jacob Zuma. But very few of those DA supporters would blindly trust Zuma and very few of those ANC supporters would blindly trust Zille.

And whether one is a die-hard ANC supporter or a die-hard DA supporter, there cannot be too many people around who would blindly trust the members of the intelligence services (in other words the spies whose job it is to deceive, to keep secrets, and to obfuscate, all in the name of protecting national security). Given the way in which our spies have been implicated in various political plots relating to various ANC factions, only a fool will tell you that he or she believes our spies always respect the letter and the spirit of the law and always act honestly, and in the best interest of the Constitution and us citizens.

Most would worry that our spies might at some point act in the interest of one or other faction in the ruling party, in the interest of members of the police or the military (as some did in attempts to try and protect the corrupt former Police Commissioner) or merely in their own interest. After all, members of the intelligence service have often acted unlawfully and unconstitutionally over the past few years and quite a few were eventually fired as a result.

This is why a discussion of the dangers of the Protection of State Information Bill passed by the National Assembly today (and now to be discussed by the National Council of Provinces), raises difficult questions. On the one hand the Bill on its face is not nearly as draconian as members of the media keep arguing. The Bill represents a vast improvement on the truly draconian Bill first tabled in Parliament last year and — at least on paper — now contains many safeguards to protect us against the emergence of a secretive national security state or the abuse of the Bill to cover up corruption, maladministration and other kinds of criminality in government.

However, on the other hand, the Bill cannot be judged on paper only, but must be judged in the context in which spies and politicians have often been revealed over the past few years to be less than honourable and respectful of the law.

The problem with the new “improved” version of the Bill and the safeguards included in it, is that it assumes that we can blindly trust all government Ministers, state officials and spies to understand the intricacies (and seemingly contradictory aspects) of this Bill and to always apply it in accordance with this perfect understanding of the various provisions of the Bill. It also assumes that those who are empowered to classify documents and review the classification of documents will do so with one eye on the Constitution. Furthermore, it assumes rather optimistically, that the Minister of State Security (whose wife was recently convicted of drug running), other Ministers authorised to classify documents and the spies whose job it is so sow confusion, spread lies and generally to deceive others while hiding behind a cloak of secrecy, will not abuse their powers and will only act in accordance with the letter and spirit of the Bill.

Of course we know that a number of Ministers, including Defence Minister Lindiwe Sisulu and State Security Minister Siyabonga Cwele, have refused to answer questions about their travel costs and hotel stays on the grounds that this would compromise their personal security, displaying a rather authoritarian view on keeping secrets in the interest of so called “security” and abusing the excuse of security to evade accountability for possible wasteful expenditure  (or worse). One will therefore have to be an eternal optimist to believe that Ministers, spies and other officials authorised by this Bill to classify documents as secret or top secret will not abuse that power at some point or another.

(And even if one is such an optimist as well as a member of the ANC, one should remember that no government remains in power for ever and that this Bill will one day also be applied by people who are not ANC members.)

Having said that, it is clear that the main aim of the Bill is not to protect Ministers or the government more generally from exposure for corrupt and other nefarious activities. Section 3(2) of the Act states that the classification, reclassification and declassification provisions of the Bill apply to the security services of the Republic (in other words, the Army, the Police and the Intelligence Services).

However Section 3(2)(b) also allows any organ of state (including any government ministry) to ask the Minister of State Security to empower them to classify documents that could supposedly threaten “national security”. If the Minister exercises this power prudently, the scope of the Bill will be much reduced. However, given the paranoid and defamatory statements by the Minister that those who oppose passage of the Bill are being funded by foreign spy agencies, and given that there is a serious question mark over the Minister’s probity and judgment, it is not clear that he will not abuse this power.

Section 12 of the Act states that state information may be classified as confidential “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause demonstrable harm to national security of the Republic”. State information may be classified as secret “if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to cause serious demonstrable harm to national security of the Republic”, while state information “may be classified as top secret if the information is sensitive information, the disclosure of which is likely or could reasonably be expected to demonstrably cause serious or irreparable harm to the national security of the Republic”.

‘‘National security’’ is defined as including (and one therefore presumes, is not limited to) the protection of the people of the Republic and the territorial integrity of the Republic against the threat of use of force or the use of force; as well a hostile acts of foreign intervention directed at undermining the constitutional order of the Republic; terrorism or espionage; exposure of a state security matter with the intention of undermining the constitutional order of the Republic; and exposure of economic, scientific or technological secrets vital to the Republic. It explicitly excludes lawful political activity, advocacy, protest or dissent.

With the exception of the subsection dealing with economic or technological secrets, this list looks innocuous. But the list is not a closed list, which opens the door wide for any crook or authoritarian to abuse the provisions of this Bill to keep secrets relating to the undermining of democracy or the hiding of corruption. Moreover, this definition must be read together with section 14(3) of the Bill which states that those classifying Bills as secret must consider whether the disclosure may

    • expose the identity of a confidential source, or reveal information about the application of an intelligence or law enforcement investigative method, or reveal the identity of an intelligence or police source when the unlawful disclosure of that source would clearly and demonstrably damage the national security of the Republic or the interests of the source or his or her family;
    • clearly and demonstrably impair the ability of government to protect officials or persons for whom protection services, in the interest of national security,are authorised;
    • seriously and substantially impair national security, defence or intelligence systems, plans or activities;
    • seriously and demonstrably impair relations between South Africa and a foreign government, or seriously and demonstrably undermine ongoing diplomatic activities of the Republic;
    • violate a statute, treaty, or international agreement, including an agreement between the South African government and another government or international institution; or
    • cause life threatening or other physical harm to a person or persons.19

If a spy (or a Minister who wishes to hide the fact that he or she has been living it up at the Mount Nelson or has visited a girlfriend in a Swiss jail) read section 14(3) in isolation, he or she may well classify information that would clearly have very little to do with national security. What is therefore limited by the definition of “national security” might well be smuggled back into the act via the back door in section 14(3) of the Bill.

I can already imagine Minister Lindiwe Sisulu from pointing to the second bullet point above to justify the classification of all sorts of documents that might embarrass Ministers or might expose the corruption they have been involved in. Because the Bill is so complicated, it would be difficult to make plausible arguments in the public domain that the Minister is abusing the Bill. Some executive minded judges might even agree with the interpretation by a Police Chief (remember the two most recent ones have both fallen under the bus because of corruption), a Minister or a spy relying on section 14(3).

But this is not the end of the matter. Section 32(1) does provide a safeguard which could in certain circumstances be effective. It states that a person who wants to gain access to a classified document may apply to a court for appropriate relief after the requester has exhausted the internal appeal procedure against a decision of the relevant Minister of the organ of state in question. If one has every reason to know that a document exists (for example, that a document exists which sets out the cost of a Minister’s travel and Hotel stays) , this avenue will be costly but mostly effective (unless one is unlucky enough to have to argue one’s case before a slavishly pro-executive judge).

The problem arises where one receives a document that is classified and the only way one would have known of its existence is if one had been leaked the document. One must then immediately hand back the document to the Police before one can challenge the wrongful classification. If one fails to do so, one could be prosecuted and sentenced to jail. If one  holds on to the document, the Minister might say that such a document does not exist and one would not be able to contradict him or her as this would amount to an admission of committing a crime. Moreover, how one would convince a court that a document should be declassified if one does not have access to the document, is not clear.

In short, on paper the Bill that was passed today is not as bad as many in the media argue. But in practice it might be devastating as it might protect our spies and our politician from scrutiny, the very scrutiny required to keep them on the strait and narrow. It might set us on the slippery slope towards a secretive national security state — as Steven Friedman argued today in Business Day. As an afterthought, it might also help to protect the venal and the corrupt.

Although safeguards do exist in theory, in practice these safeguards will often be illusory (especially for anyone without access to very clever lawyers and pots of money) unless those entrusted with applying the law will always act absolutely honestly, with brilliant insight into the law and with one eye towards the Constitution. The  chances of this happening is about as slim as the chances of me winning the Miss World Competition.

This means, for example, that where activists of Abahlali baseMjondolo or the Landless People’s Movement are illegally targeted by the security services because they are perceived to be a threat to the ANC government and their phones are bugged, their houses attacked or their leaders tortured and murdered, it would be almost impossible for the organisation to prove this when all the documents that could do so are classified. Ironically, only the media will have the resources to expose such abuse of power, but this would require the media (targeted at middle class readers) to display far more concern for the well-being of these social movements whose interests do not always align with the interests of the middle classes served by the serious media.

In a state in which trust has been eroded, a Bill like the one passed today becomes even more scary than it otherwise would have been. The strong reaction of civil society to the Bill therefore says just as much about the specific provisions of the Bill than it says about the fact that the governing party and state institutions have squandered the trust and goodwill it had acquired over many years of struggle. No wonder the ANC politicians are so upset.

Maybe he is just a very bad spin doctor….

Nov 21st, 2011
by Pierre De Vos.
42 comments

In the clip below Mr. Mac Maharaj (in an interview with Justice Malala) declines to state that he never lied to the Scorpions during a section 28 interview. Asked several times about this, he refused to deny that he lied. Lying to the Scorpions is prohibited by section 28 of the NPA Act. That section says that a persons who fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or who gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, is guilty of a crime and if found guilty would be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

He also refused to deny that he had received a bribe from an arms deal company. Blustering, and claiming that he was being treated unfairly, he pointedly declined to say whether his wife received money from an arms deal company. In effect he admitted to payments as he said this was part of a much larger investigation and if one had the bigger picture one would not judge him. Making vague allegations that there were “many inaccuracies” in the Sunday Times article (thus admitting that many aspects of the article was true) he also appeared to argue that because he was never charged it is irrelevant whether him or his wife received a bribe from an arms deal company. As long as he was not charged, that should be the end of the matter.

The absence of a denial – even when given all opportunity to do so – raises very serious questions about the probity of the spokesperson of the President of South Africa. His performance in this interview, I am sad to say, leaves one with an uneasy feeling that Mr Maharaj has something to hide. Maybe he is just a bad spin doctor who does not have the ability to convey the truth with the necessary conviction and in a tone that instills trust. Or maybe he is as guilty as he inadvertently presents himself to be in this interview. Watch the full interview and judge for yourself.

 

Why no human rights culture in the Police Service?

Nov 7th, 2011
by Pierre De Vos.
21 comments

The Zimbabwean citizens reportedly detained by the Hawks and members of the SA National Defence Force and handed over to Zimbabwean Police, who then allegedly murdered the “deportees”, seem to have little in common with Mr Khalfan Khamis Mohamed, a Tanzanian man convicted of terrorism in a New York Court in 2001.

Yet, as Minister Jeff Radebe pointed out this weekend in the Sunday Times, the precedent set by the Constitutional Court in the Mohamed case  makes it illegal for the Hawks and the SANDF knowingly to send people to their possible death – even if the immigration law had been followed, which allegedly was not done in these rendition cases to Zimbabwe. A paper trail was published in the Sunday Times, confirming that a number of individuals were arrested as “illegal immigrants” by the Hawks and taken over the border at Beit Bridge, where they were handed to Zimbabwean police, and then killed.

In a move that is said to put him on a collision course with his cabinet colleague Nathi Mthethwa, the Minister of Police, Minister Radebe said the renditions “fly in the face of our constitution and its values”. Radebe said the rendition claims were “very worrying” – particularly as the allegations “were levelled not only against organs of state, but ones responsible for law enforcement and security”.

The actions flout the Immigration Act and also breach a government moratorium on deportations to Zimbabwe and the United Nations Convention Against Torture, which South Africa ratified in 1998. However, Mthethwa on Friday told the Sunday Times “there is nothing in front of [me]” to warrant an investigation. He said the rendition claims involving the Hawks were “baseless and imaginative”. It would not be the first time that the political leadership of Police turn a blind eye to unlawful and unconstitutional actions of members of the law enforcement agencies.

After all, there is often a huge gap between the legal and constitutional protections afforded individuals in South Africa and how individuals are actually treated in real life. While the Constitution prohibits unfair discrimination against anybody because of his or her race, against women and against gay men and lesbians and while the Equality Act similarly prohibits private institutions and individuals from discriminating, discrimination is still rife – also inside the Police Service and in the way it deals with complaints.

Over the years I have fielded several calls from young men and women who had been raped and then tried to get the police to investigate these crimes. In each case the complainant was not successful in getting the Police interested in his or her case – and the only reason for this was that the rape survivors happened to be gay or lesbian. In one case I was told that a Police officer from Atlantis had laughed at a young man who wanted to report a rape because he was “‘n moffie” and hence deserved to be raped. I have also had long and fruitless arguments with members of the Harare police station in Khayelitsha to try and get them to investigate the rape of a lesbianwoman by a man known to the rape victim and the police.

It appears that the position of undocumented Zimbabweans in South Africa is often no different, something that Minister Radebe – to his credit – seems very concerned about. It may be helpful to remind the law enforcement officials in South Africa that apart from the Immigration Act (which they are supposedly bound by) the Constitution itself makes this kind of thing unlawful.

It was an early spring day in Cape Town back in 1999 when South African government agents illegally handed Mr Mohamed over to agents of the FBI. The agents rushed Mr Mohammed onto a FBI aeroplane and the next day he was brought before the Federal District Court in New York on charges relating to the horrific bombings of the US embassy in Dar es Salaam the previous year. Mr Mohammed faced the death penalty if convicted of the charges brought against him.

While his trial was proceeding in New York, his lawyers approached the South African Constitutional Court, who declared that his handing over to US agents had been unlawful, in part because the South African government had handed him over to the US without a guarantee that he would not face the death penalty if convicted in the US.

The Constitutional Court pointed out that our Constitution outlaws the death penalty and found that the South African government had acted contrary to the underlying values of the Constitution. Although it had a duty to protect the right to life and the right against cruel inhuman and degrading treatment and punishment of everyone in South Africa, it had failed “to lead by example” in this case.

According to the Court, this unlawful action was particularly serious because the government had a special duty in our young democracy to foster the values entrenched in the Constitution.

In Mr Mohamed’s case, the US Federal Court found that it was not bound the judgement of the South African Constitutional Court. After all, the judge pointed out, the United States was a sovereign state and a South African Court could not order a US court how it should deal with its accused. Although Mr Mohamed was eventually sentenced to life imprisonment, this was only because of a technicality which allowed the South African judgment to be tendered as mitigating evidence. But this does not mean that the South African can “render” suspects to a foreign government if they might be tortured or killed. They cannot.

Even if the Immigration Act is followed to the letter (which it seldom is), South Africa is therefore constitutionally prohibited from sending any Zimbabwean who is illegally in South Africa and is suspected of committing a very serious crime back to Zimbabwe if there is any well-founded fear that the Zimbabwean government or its formal or informal agents will murder or torture the suspect. I suspect that this is why these renditions occur without following the requirements of the Immigration Act.

Ordinary South Africans, whose views might sometimes be clouded by more than a tinge of xenophobia might think that this has nothing to do with them. But if we allow our law enforcement agencies to continue to act in such a lawless manner when dealing with Zimbabweans, cases where they deal with South African citizens in a lawless manner will also increase. As things stand, many of us who used to fear and loath the South African Police Force during the apartheid years but gave them a chance when they were supposedly turned in to a Police Service who was tasked with protecting and not terrorising the population, are having second thoughts.

In my dealings with the police I have been shocked by the attitude of some (but not yet all) police officers. Once I was asked the most racist questions by a police officer who seemed to assume that all black people are by definition criminally inclined. On another occasion there was an attempt to extract money from me, something, I am told, that is quite common in some parts of South Africa. While some police officers have dealt with me in a helpful and professional manner, others have made my hair stand on end with the prejudices and their lack of respect for the basic provisions of the law or the Constitution. I could only surmise that they were not taught much about respect for human rights or if they had, they had not internalsied those lessons.  

Maybe Minister Radebe should raise this issue in the cabinet in order to ensure that cabinet instructs the Minister of Police to implement measures that would try and instill a human rights culture in the Police. When ordinary citizens fear, instead of trust, the Police, they will not co-operate with the Police. And if there is no co-operation the Police will not be able to do their job properly.

Terms of reference of arms deal inquiry shows good political “management”

Oct 28th, 2011
by Pierre De Vos.
49 comments

In an open and democratic society like South Africa with a free press and an engaged and active citizenry, a vibrant civil society, and political parties who hold regular internal elections, it is very difficult to cover up maladministration and corruption. There are almost always people who “know too much” and have the required conscience (or an axe to grind) who will be willing to spill the beans. In such a society — even one electorally dominated by one party — public opinion also matters greatly.

When a politician, an official or a businessman is caught up in a scandal, the most astute way for that person to deal with such a scandal is to try and influence public opinion to minimise the effects of the scandal or to turn it to his or her advantage. Lying about the scandal usually makes things worse — just ask Sicelo Shiceka or anyone involved in the Brett Kebble saga. If one is a low-level official one might try to ignore the whole thing with a “no comment” because members of our media usually have a very short attention span (and limited resources) and often do not follow up on allegations of bribery or corruption except in the most serious cases.

But this strategy usually does not work if one is a high profile individual like a Police Commissioner, a captain of industry or a prominent leader of a political party. In the long run the painful drip-drip of revelations about the scandal will damage the reputation of that person (and the political party he or she belongs to) and soon enough members of the public (also members of one’s own political party) will be keen to hold one accountable. And if one is lucky or very clever one can even use a scandal to get rid of political enemies — although this can backfire, as former President Thabo Mbeki may attest.

President Jacob Zuma – like Helen Zille – understand all of this. That, in my opinion, is why he appointed a commission of inquiry into the arms deal. It was announced yesterday that the commission will have wide-ranging powers, including the power to subpoena witnesses; to compel witnesses to answer questions; and the power of search and seizure. Non cooperation with the Commission will amount to a crime similar to contempt of court and will constitute an offence punishable by a fine or imprisonment for a period between 6 to 12 months.

The terms of reference of the commission as well as the powers given to it are indeed wide-ranging and if the presiding judges do their job properly, the commission might well once and for all lay the arms deal scandal (if not allegations of a possible cover up) to rest. Of course, the commission might well damage or destroy the reputations of several politicians, officials and arms traders (assuming that the latter has any reputation to start with), but given the terms of reference President Zuma is unlikely to be one of them.

The commission is empowered to investigate the rationale for the arms deal; whether the arms and equipment acquired in terms of it are under-utilised or not utilised at all; whether job opportunities anticipated to flow from the deal; whether off-sets anticipated to flow from the deal have materialised at all; and — most importantly —  whether any person/s, within and/or outside the Government of South Africa, improperly influenced the award or conclusion of any of the contracts awarded and concluded in the procurement process and, if so whether legal proceedings should be instituted against such persons, and the nature of such legal proceedings. The commission may also investigate whether any contract concluded in terms of the deal is tainted by any fraud or corruption capable of proof, such as to justify its cancellation, and the ramifications of such cancellation.

President Jacob Zuma himself was embroiled in the arms deal scandal, but it is important to note that Schabir Shaik was not convicted for soliciting a bribe on behalf of President Zuma on the condition that Zuma would try and influence the awarding of arms contracts. He was convicted for soliciting  bribe (for the relatively small sum of R500 000) for Zuma on the condition that Zuma would try and influence the investigation into corruption into the arms deal.

Zuma skilfully exploited his involvement in the scandal to turn himself into a victim and thus to gain public sympathy. He knew that public opinion (not the opinion of the chattering classes, but that of the ANC rank and file) would be pivotal for his survival as a politician and he thus exploited widespread unhappiness with then President Thabo Mbeki inside the ANC, without ever admitting to any wrongdoing.

Implicit to his argument in the run-up to Polokwane was that he was being singled out and made a scape goat to put a stop to his political ambitions. Because the public had mostly already concluded that there had indeed been widespread corruption in the arms deal and because no one else was ever pursued or prosecuted (except for Tony Yengeni who was, once again, convicted of the relatively minor crime) this strategy seemed to work and (at least the majority of delegates at Polokwane) forgave Zuma for any possible transgressions.

The terms of reference of the arms deal inquiry suggests that if President Zuma was indeed embroiled in the arms deal, his involvement was limited to the soliciting of a bribe on his behalf by Schabir Shaik with the understanding that he would try and prevent the arms deal investigation from uncovering corruption. That is why the terms of reference are wide-ranging but does not include any mention about the events which followed the conclusion of the arms deal. The Commission will not be empowered to investigate whether bribes were paid to some politicians to try and cover up the arms deal scandal after the fact, leaving Zuma relatively safe.

Many allegations about the arms deal have been made, some implicating politicians and some implicating the ruling party itself. At first blush, there might therefore appear to be a danger for President Zuma in appointing the commission as it might damage the ANC. But on reflection, President Zuma might perhaps be calculating that he could once again turn a scandal to his personal advantage and to the advantage of the ANC. If the Commission uncover corruption of members of the administration of former President Mbeki, Zuma can claim that he was the one who rid the ANC of the corruption and might be able to convince many voters that under his leadership the ANC is actually serious about rooting out corruption, thus gaining (instead of losing) support for the ANC.

I suspect that the appointment of this commission was a brilliant move on the part of President Zuma. It might well be that civil society pressure and pressure from ANC members played a role in the decision (as Steven Friedman cogently argued in Business Day) and that this demonstrates that the constitutional democracy works much better than some in the chattering classes think. But this does not mean that the appointment of the arms deal commission of inquiry, carefully steered away from investigating those aspects of the arms deal that might implicate the President, was not a good move.

Instead of ignoring public opinion and attacking the messenger by complaining about how the media was painting the ANC and its leaders as corrupt, the President acted like a good politician would have done in any well-functioning democracy by managing the effects of the scandal in order to influence public opinion to his advantage. It is not surprising that he did so carefully, seemingly to ensure that his own limited involvement in the scandal will not be probed.

Obviously this move will not be popular with former and/or present ANC leaders and arms dealers who run the risk of being exposed by the work of the commission. But if I was an ordinary ANC member I would be very happy and impressed by this move by our President.

Why Zuma’s moves may be unlawful

Oct 25th, 2011
by Pierre De Vos.
43 comments

The news that President Jacob Zuma had fired two cabinet Ministers (found by the Public Protector to have acted in the most disgraceful manner) reminded me of the words of Winston Churchill (that warmongering, jingoist, raconteur and drunk), who once remarked that “America will always do the right thing, but only after exhausting all the other options.”

President Zuma also eventually did the right thing (although he might have done so in an unlawful manner, as I will explain below), after running out of other options. We do not seem to hold our politicians to a very high standard (perhaps because we do not believe that we deserve better), and President Zuma has therefore been widely applauded for his “brave” and “decisive” move. (I myself experienced a rush of goodwill towards our President when I heard yesterday that he had finally done the right thing after exhausting all the other options.)

Apart from the firing of the two cabinet ministers, President Zuma also announced the names of three judges who will conduct an inquiry into the arms deal and the name of the judge who will chair the Inquiry into allegations of misconduct against the National Police Commissioner, Bheki Cele. Supreme Court of Appeal judge Willi Seriti will chair the arms deal inquiry and retired Constitutional Court judge Yvonne Mokgoro will chair the inquiry to be conducted in terms of section 9(1), read with section 8(1), to (8) of the South African Police Service Act 68 of 1995. (At least I assume it is this Act as the statement by the President sloppily failed to identity the relevant Act under which action is to be taken.)

Section 9(1) of the Police Service Act (read with section 8(1)) empowers a panel headed by a Supreme Court judge to enquiry into allegations of misconduct by the National or Provincial Commissioner, or into his or her fitness for office or capacity for executing his or her official duties efficiently. Section 8(6) of the Act requires this panel to submit a report to the President, the Commissioner concerned; and the Parliamentary Committees.  The report may recommend that no action be taken in the matter; the Commissioner concerned be transferred to another post or be employed additional to the fixed establishment; his or her salary or rank or both his or her salary and rank be reduced; he or she be removed from office; or any other appropriate steps be taken.

The problem is, of course, that justice Mokgoro is, as far as I am aware, not a judge of the Supreme Court as required by section 8 of the South African Police Service Act. She is a retired judge of the Constitutional Court. The Act does not provide for a retired judge to head the panel in question and it is therefore not clear why our President had purported to appoint her to head this panel.

It is also far from clear that she has ever been a Supreme Court judge as intended by the Act. As the court system has changed since this Act was adopted and as the names of some courts have changed, this Act must be read in conformity with the constitutional environment in which it was adopted. One therefore needs to look at the 1993 Constitution to establish what is meant in the Act when it states a Supreme Court judge must head the inquiry against the Police Commissioner. That document makes pretty clear that a distinction is drawn in law between what was at the time a judge of the Constitutional Court (retired or not) and what was a judge of the Supreme Court.

Section 99(3) of the 1993 Constitution, which dealt with the appointment of judges to the first Constitutional Court, stated that “four judges of the Constitutional Court shall be appointed from among the judges of the Supreme Court by the President in consultation with the Cabinet and with the Chief Justice”, making it clear that in terms of the interim Constitution a Constitutional Court judge and a Supreme Court judge were two very different kinds of judges. Section 101 further dealt separately with the Supreme Court (after having dealt with the Constitutional Court in  previous sections) and stated that “there shall… be a Supreme Court of South Africa, which shall consist of an Appellate Division [now the SCA] and such provincial and local divisions [now High Courts], and with such areas of jurisdiction, as may be prescribed”.

Unless one does a huge amount of legal interpretative gymnastics, one would not be able to conclude that judge Mokgoro is legally entitled to act as the chairperson of the inquiry into whether Bheki Cele is guilty of misconduct or whether he is fit for office or has the capacity to execute his or her official duties. Of course, one could try and re-interpret the Act by reading words into it which are not there, but as this is not required to make sense of the Act as it stands, it would be very surprising if a court did indeed add words to the Act to justify the appointment of justice Mokgoro. The “appointment” of Justice Mokgoro by the President may therefore be null and void, which would mean any work done by the inquiry would have no legal standing.

It may appear as if the same lawyer or lawyers who had previously (wrongly) advised our President that section 8 of the Judges’ Remuneration and Conditions of Employment Act was constitutionally valid, may have been responsible for advising him that a retired Constitutional Court judge was actually a sitting Supreme Court judge.

The Commission of Inquiry into the arms deal may also run into some legal trouble if those affected by it decide to challenge the decision by the President to appoint three sitting judges to head this inquiry – although in this case the legal issue is far less clear-cut. In the Constitutional Court judgment in which that Court declared that it was unconstitutional for a sitting judge – Judge Willem Heath - to sit as the head of the Special Investigative Unit, that court warned that a judge should not normally perform a function that creates the risk of judicial entanglement in matters of political controversy. In dealing specifically with the question of whether judges should chair Commissions of Inquiry the Court stated that:

In dealing with the question of judges presiding over commissions of inquiry.. much may depend on the subject matter of the commission… In appropriate circumstances judicial officers can no doubt preside over commissions of inquiry without infringing the separation of powers contemplated by our Constitution. The performance of such functions ordinarily calls for the qualities and skills required for the performance of judicial functions – independence, the weighing up of information, the forming of an opinion based on information, and the giving of a decision on the basis of a consideration of relevant information.

Of course, famously the Western Cape High Court inexplicably went much further in the case in which Helen Zille challenged the legality of the appointment of Judge Nathan Erasmus by then Premier Ebrahim Rasool to head a Commission of Inquiry into the alleged corruption in Zille’s administration, stating that:

With great respect to the views of the Constitutional Court, that judges may in “appropriate circumstances” preside over commissions of inquiry without infringing the separation of powers, the problem lies in deciding in any particular case whether it is “appropriate” for a judge to involve him or her self, in the particular commission. The facts of the present case starkly illustrate the problem….. With great respect to the views of the Constitutional Court, it seems to me that at this early stage of our fledgling democracy, and with the vital object of preserving public confidence in the independence of the judiciary, active judges should as a matter of principle, not chair commissions of inquiry. This would eliminate the risk of judges becoming embroiled in disputes such as the present and the need to define in what circumstances a judge could “appropriately” chair a commission of inquiry.

I would think that appointing sitting judges to conduct a Commission of Inquiry into the arms deal would at the very least be a borderline case. Even if one rejects – as one should – the bizarre statements of the Western Cape High Court in the Zille matter, it is not clear that the appointment of Judge Seriti and his two colleagues as members of an Inquiry into the arms deal would pass the Constitutional Court test for the separation of powers and judicial independence.

The arms deal scandal is one of the most controversial and divisive political issues in South Africa, pitting members of the ruling party against each other and running the risk of exposing the ruling party or at least some of its leaders to serious political risks. Whether sitting judges should conduct such an Inquiry is at least an open question.

While our President should therefore be lauded for finally acting on several issues regarding corruption, it is far from clear that the announcements he made yesterday would be considered legally and constitutionally valid. Those whose rights may potentially be adversely affected by the two inquiries may well run to the courts to challenge the lawfulness of these two Commissions of Inqiury. In the Bheki Cele case, such an application will almost certainly be successful while there is at least some chance that in the case of the arms deal inquiry there will be a decision to declare the appointment of the three judges invalid (although I would not put my money on it).

Once again, one wonders who is advising the President on legal and constitutional matters. It sure can’t be anyone who has the necessary skills and legal knowledge, or is sufficiently diligent and careful to earn the trust of the President of our country.

Money is not an issue (so let them eat cake)

Oct 20th, 2011
by Pierre De Vos.
36 comments

I am not an architect nor am I a building contractor. But maybe I should have become one because it seems one can make quite a good living in one of these professions — as long as one knows somebody in the Department of Public Works. I post below details of the cost incurred by that Department to renovate/upgrade/improve/secure/gild/make-inhabitable-for-a-regent/palace-ify/posh-up the various residences of the President of South Africa. The total cost ran into almost R400 million.

Now R400 million is quite a bit of money. I would guess the most expensive house in Cape Town can be bought for around R25 million, so the “renovations” would have been able to buy 16 of the most expensive houses in South Africa. It gives new meaning to the phrase “money is no object”. (Well, maybe money is an object for those South Africans whose children went to bed hungry last night, but let us not be churlish here — it is the President of South Africa we are talking about and he deserves the best!)

It reminds me of the Vandal’s Song by that same name:

Money’s Not An Issue lyrics
Well I know you been working most nights
And I think you deserve something nice for once, you do
And the twins they’ve been driving you nuts
But tonight your in luck. Guess what, Here’s what-

Hey Babe we’re going out tonight
were finally gonna do it right
No more pinching pennies with a broke ass loser
I’ve had a change of luck, I found the twenty bucks
I thought I lost under the sofa
I’m feeling like a hundredaire and baby I just don’t care
Where we go or what we spend
So grab your friends – cuz
Money’s not a issue tonight

Hey baby were going out tonight
just bring your appetite for luxury and fun cuz
Money’s not an issue
Go on baby now make a wish
I’m feeling Irish rich
I found me pot o’ gold and living large, it fits you
Feel free to super size
cuz tonight dreams are realized

I know that’s it’s been rough
and you don’t get the stuff
That such a pretty lady is so deserving of
but now that’s not the case
I’ll shower your sweet face with
Champagne dreams and Moustache kisses
I’m well aware that I’ve been kind of cheap and tight
but all that’s changed and were going to do it right
so tell your friends that-
Money’s not an issue tonight

I post details of the cost incurred below to provide an objective and factual basis on which readers can rely in case they might think that this money was wasted. I for one believe the money was well spent. After all, one would not want to begrudge our President these few luxuries which we all really should be entitled to. Although I am already hearing the cries from the radicals and the communists (Blade, are you there?): “Nevermind Wallstreet: Occupy Mahlamba Ndlopfu!”

NATIONAL ASSEMBLY

QUESTION 1150 01 APRIL 2011

1150. THE LEADER OF THE OPPOSITION (DA) to ask the Minister of Public Works: What is the cost breakdown of the R191 million allocated for the refurbishment of Mahlamba Ndlopfu with regard to (a) interior refurbishment, (b) furniture and (c) any other specified renovations?

REPLY:

(a) The cost for interior refurbishment is estimated at R168,762,018.71

(b) No new or additional furniture will be procured. The current furniture will be retained.

(c) 1. Specialised Services:

- Upgrading of security measures including escape routes.

- Installation of new electronic security surveillance system.

- Construction of new security perimeter fence according to SAPS security report.

- Upgrading the Access Control Measures.

- Installation of Fire Detection System.

- Installation of Intercom and danger warning system (PA system).

(c) 2. Issues of Restoration:

- Wooden windows.

- Wooden doors.

- Balustrades on balconies and stairways.

- Restoration of fireplaces.

- Restoration of chandeliers.

- Restoration of all wooden elements internally including cupboards, ceiling, floors to the original form as per South African Heritage Resource Authority (SAHRA) recommendations.

(c) 3. Scope of Work for Recreation Area:

- Attention to the swimming pool.

- Construction of changing facilities.

- Construction of Sauna / steam room.

(c) 4. General Upgrade of the External:

- Construction of screens between main house and visitor’s entrance.

- Paving for paths & roads in consideration of disabled persons (non slippery).

- New gates for visitors.

- Installation of lights along walk ways and drive ways.

(c) 5. Compliance Challenges:

- The residence utilizes a gas stove for cooking and the existing gas cylinders storage does not comply with regulations.

- A new gas cylinder storage facility will be constructed to address the challenge.

(c) 6. Information Technology Network:

- Fitting of Server Room to address Heating, Ventilation and Cooling (HVAC).

- Network points to every room necessary.

- Network points to study room.

- Data for telephones, etc.

(c) 7. Sanitary Fittings:

- All necessary sanitary fittings will be fitted.

(c) 8. Energy Saving Plan:

- The residence will utilize solar energy for heating of water.

- The lighting application will save energy.

- Kitchen will utilize only liquid petroleum (LP) Gas for cooking.

And another question:

NATIONAL ASSEMBLY

QUESTION 1149 01 APRIL 2011

1149. THE LEADER OF THE OPPOSITION (DA) to ask the Minister of Public Works:

How (a) did her department determine the amount of R365 million to be allocated for the upgrading of the Bryntirion Estate and (b) is such an expenditure on an upgrade justified?

REPLY:

(a) The Department appointed a Professional Team to conduct a condition survey at Bryntirion Estate and they provided a master plan with a report with proposed project that needed to be executed at the Estate to improve its current status and also the security measures. These projects were proposed with estimate amounts to the Department as per the table below:

PROJECTS BUDGET ESTIMATE

Gate 1,2,4 & 5 R13 299 058.00

Outer boundary fence R19 768 863.00

Gate 1,2 & dog unit R25 723 399.00

Generator room and main substation R15 000 000.00

Fence R42 000 000.00

Electrical reticulation R22 000 000.00

Eastern road R55 000 000.00

TOTAL ESTIMATED COST: R192 791 320.00

It must be noted that the above estimated costs have been checked and verified by our departmental professional team prior to approval.

(b) It is the market that determines the construction cost. The Department invites tenders for their projects based on the estimated amounts provided by the Professional Team appointed on aparticular project.

And yet another reply. (Am I the only one feeling sorry for the President after noting that the Department of Public Works were responsible for the interior design. Ag shame man, what happened to the idea of getting in a professional designer? I shudder to think how many shades of ugly the Department came up with when it did those designs.)

NATIONAL ASSEMBLY

QUESTION 653 07 MARCH 2011

653. The Leader of the Opposition (DA) to ask the Minister of Public Works:

(1) What has been the total cost of renovations to the President’s Tuynhuys (a) residence and (b) office;

(2) what has been the total cost of (a) the furniture purchased for the President’s office at Tuynhuys and (b) any interior designers involved with the refurbishment of the office? NW699E

Reply

The renovations in the Presidency, which were undertaken by the Department in the past three financial years, were not only for the President’s physical office but the support staff as well.

1. (a) The total cost for renovations at Genadendal is R 13,5 Million

(b) The total cost for renovations to the President’s Office is

R 24, 4 Million

2. (a) Furniture costs: R 778,000.00

(b) Interior design was planned and executed by the Department

About the lying Minister and the dithering President

Oct 17th, 2011
by Pierre De Vos.
74 comments

I regret to say that I had a lovely weekend. Despite my best efforts (opening the windows, spraying water on the lawns of the block of flats I stay in, praying to the mosquito gods), no infestation of mosquito’s took place. I was so hoping for those mosquitos to arrive en masse, so to speak, so that I could book myself and my partner into the One and Only Hotel in the hope that someone else would pick up the bill. (Who might have paid for such a frolic is unclear, but I work for a public university and I am basically “public property” so maybe the Vice Chancellor would have ordered tax payers money to be used to cover the R25 000 bill for such a stay. Or perhaps some starving children somewhere in a small rural village in the Eastern Cape would have been kind enough to pay.)

Today, back at work after a lovely – mosquito-free – weekend, I completed my study of the report by the Public Protector into allegations of a breach of the Executive Ethics Code by Minister of Cooperative Governance and Traditional Affairs, Mr Sicelo Shiceka. And what interesting reading this report made. Apart from learning that the Minister claims that he was entitled to stay in the most expensive Hotel in Cape Town “due to an influx of mosquitoes” experienced by the Minister at his official house (presumably because shops in Cape Town had all run out of mosquito repellent and Doom on that particular day), I have also learnt that one of the Ministers in our government is a bare faced liar, but – at the time of writing – remains a Minister nevertheless.

He lied about not visiting his drug-dealing girlfriend in a Swiss jail while on a so called study tour of that country. He probably lied about  meeting officials from the Euro 2008 soccer tournament while he was there. He definitely lied about having been asked to go to Switzerland by Danny Jordaan. He lied to then President Kgalema Motlanthe about the nature of the trip and why it was necessary to go on it. He lied about being sick after he had claimed in a radio interview that he is playing golf and is healthy and ready to return to work. He lied about not staying at the Lesotho Sun Hotel (and then tried to get his department to pay for this private trip, which he claimed he never went on).

On top of that, the Minister appears not to be a very good liar. If he can’t even be trusted to lie properly, how can we trust him with being a good Minister? I mean, surely the first thing they teach one at political school is that  if one falsely denies something one must make sure that there is no readily available evidence to show that one has lied. If one denies visiting a girlfriend in prison, say, one should probably first ensure that the authorities at the prison in Switserland won’t have proof that one’s denial is false.

It also helps not to make a claim that one is sick, when this directly contradicts another claim one has made in a radio interview that one is as healthy as can be (which means one cannot say that one has been misquoted or quoted out of context). If one denies ever staying at a Hotel, one should preferably have paid one’s bill and should have been unobtrusive. One’s Department should preferably not have issued an accommodation voucher for one’s stay in that Hotel with details that read: SICELOMR SHICEKA (DPLG – DEPT PROVINCIAL AND LOCAL GOVERNMENT) – see Voucher reproduced below.

I mean, the Minister is really not very good at this kind of thing, as this small section of the Report dealing with the Minister’s denial that he ever stayed at the Lesotho Sun Hotel illustrates:  

The evidence also shows that Mr Shiceka provided TWF with the room numbers at the hotel which corresponds with the room numbers on the final invoice issued.  The invoice further shows that telephone calls were made from room 328 by the SAPS VIP Protector that accompanied Mr Shiceka, the late Mr B Mthethwa to: (a) Mr Shiceka’s Private Secretary, Ms Z Mabuza (Mogala), (b) Ms G Ncube an official of Kwela Fleet Management and, ostensibly to arrange for a petrol card for Mr Shiceka’s transport in his official vehicle; and (c) Mr V Mokadi, a SAPS VIP Protector assigned to Mr Shiceka.

Mr Shiceka is now claiming that the procedure followed by the Public Protector was flawed, “that an injustice has being meted out against him and his rights have been crossly violated,” adding that he co-operated fully with the investigation. The Minister also categorically rejected all the findings of the Public Protector as baseless and lacking in evidence to support its recommendations, according to his office. ”Accordingly, the Minister will challenge this matter in court.”

Maybe I am a bit cynical, but I will add this last statement to the long list of lies told by the Minister. There is not ever going to be a court challenge as there is no legal basis for such a challenge and as such a challenge will expose the Minister to further humiliation and will reveal even more starkly how dishonest he is and what overwhelming evidence exist to demonstrate that he is not only a liar, but a bad liar.

Mr Shiceka first demanded to be provided with a provisional report “as per established rule” and once he was provided with such a report claimed that his rights have been grossly violated because such a provisional report was issued. These are the actions of a person who is seriously incompetent – even when lying and misusing our money – who is not trustworthy and should not be allowed to be a second hand car salesman, let alone a Minister in our government.

Moreover, quite troubling, witnesses interviewed by the Public Protector were approached by Minister Shiceka and his advisors after he received the provisional report and they were then questioned in connection with the information provided to the Public Protector. As the Public Protector writes, this gave rise to a perception of victimisation and the possibility that witnesses would be occupationally disadvantaged because they spoke the truth. This came after the provisional report stated that witnesses interviewed during the investigation feared victimisation. As one witness told the Public Protector:  ”What the Minister wants the Minister gets or else you are gone.” The Report then continues:

It is of further concern that Mr Shiceka in his response purports to speak on behalf of these witnesses. Of particular concern is that Mr Shiceka laments not being given the opportunity to cross examine witnesses when his own response suggests that he or his advisory team did indeed do so. This on its own raises ethical issues, especially in the light of the provisions of the Protected Disclosures Act, 2000.

This raises the question of whether the Minister – apart from being a liar – is perhaps also a bully or a thug. I advise anyone who would like to come to the defence of the Minister to read the full Report of the Public Protector.

It makes for disturbing reading regarding the mind-set of the Minister involved and poses questions about what kind of organisation  or institutional culture could have given rise to such a mind-set. Is this an isolated case, or are some other cabinet ministers also infected with this kind of incompetence, venality and arrogance? I would guess that no reasonable person who reads this report and sees that much of it is based on incontrovertible evidence – including documentation the veracity of which is beyond dispute – would not conclude that the President must act immediately.

Which means that the President has a duty immediately to fire the Minister. Yet, this has not happened. President Jacob Zuma is said to have ”taken note” of the Public Protector’s report. Presidential spokesperson Mac Maharaj told a newspaper that “the President trusts that the work being done by the office of the Public Protector will help prevent the misuse of public funds and strengthen good governance”. Maharaj would not be drawn on any timeframes for the possible implementation of the Protector’s recommendations.

It took me an hour or two this morning to read the Report and to conclude that the Minister must be fired immediately to protect our government from further embarrassment. Every day this man remains a member of government (or even an ordinary member of Parliament) is a day in which the taint of dishonesty and corruption is ever more closely associated with our government, the governing party and the President who leads both.

As anyone who has read the Report will know, this is a not a case in which reasonable people could possibly dispute the fact that Minister Shiceka is a liar and a dishonourable person. The President has a right to fire any cabinet Minister when he wishes to do so. These are political appointments and the normal rules of labour law or natural justice do not apply. Claiming that “processes” need to be followed before the President could act on this matter would therefore itself be a blatant lie.

If the President wants to fire the Minister he has every legal right to do so at any time. He can just phone one of the Gupta brothers and to get their permission and then he can go ahead and dismiss the Minister. (Well, the part about the Guptas is not in the Constitution, I must confess.) He could have fired the Minister long ago and he could have fired the Minister after the Report was made public and before anyone could have the time to say “mosquito”. Yet for some inexplicable reason he has not done so. It is inexplicable because it is in the President’s own interest to get rid of this incompetent liar as soon as possible. Every day that passes without the President firing the Minister is a day in which the perception will grow that the President himself is a person who does not care when his Ministers tell blatant lies, bully their staff and waste money.

President Zuma, what are you waiting for?

Concourt arms deal case was always a long shot

Sep 26th, 2011
by Pierre De Vos.
29 comments

This weekend it was reported that President Jacob Zuma told the ANC’s NEC that he had decided to appoint a commission of inquiry into the arms deal to prevent the Constitutional Court from taking charge of the matter and prescribing the terms of reference for him. The Mail & Guardian claimed that the President had told the ANC NEC that the Constitutional Court was set to rule in November on activist Terry Crawford-Browne’s application to force President Zuma to reopen the arms deal investigation and that he therefore had to act in anticipation of a ruling against him.

The Mail & Guardian reported that according to three NEC members, Zuma was aware that the majority of the court’s judges would rule in favour of Crawford-Browne. According to the report, Zuma’s decision has upset some senior members of the ANC, who privately accuse him of taking major decisions without engaging the NEC. Others in the party see the decision as a strategy to embarrass more ANC leaders ahead of the party’s elective conference next year.

This report sounds strange and deeply troubling, to say the least. There are at least three reasons why the report, if true, is cause for serious concern. (Whether the NEC members falsely leaked information to the newspaper is just as likely true as that the President actually said what he was reported to have said.)

First, the Constitutional Court is NOT set to rule against President Zuma in this case by November this year, as the full oral arguments are only set to be heard on 17 November this year. A ruling would therefore only be handed down sometime in 2012 (quite a few months before the ANC’s next elective conference takes place at Mangaung at the end of 2012). Either the journalist got this wrong or President Zuma said something to the NEC that was factually clearly wrong.

Second, the case has not been argued fully before the Constitutional Court yet and has only been set down for argument for 17 November. The judges could therefore not possibly have made up their minds on how to rule, as they are required to keep an open mind until such time as they have heard the oral arguments presented to them. If they had indeed made up their minds and if they had intimated to anyone how they would rule in a case not yet argued before them, they would be acting in a highly improper manner. If there was proof for the statement by the President, it could easily form the basis of a successful recusal application of all those judges who had already made up their minds.

Besides, even if they had made up their minds before oral argument, how on earth would President Zuma have known how the judges viewed the case without having allowed the intelligence services to spy on the judges of the top court or without having somebody – maybe one of the judges on the Constitutional Court – acting as a spy for the President?

This could mean that the statement by President Zuma to the NEC was wrongly reported by the media because the newspaper faked the report or because NEC members leaked false information to it. Or – alternatively – it could mean that the President was either lying to the NEC or that he was admitting to highly improper behaviour on the part of one or more Constitutional Court judges (for making up their minds before a hearing or for leaking confidential information to the President) and/or he was revealing unlawful conduct on the part of the intelligence service.

Either way, this would rightly constitute an enormous scandal. Either the newspaper’s journalist who wrote this story is a deeply unethical and dishonest person in which case that journalist should be fired forthwith (something that seems very unlikely, in my opinion, given the lack of a strong response from the ANC to this report), or the journalist was fed lies by the three NEC members. Alternatively, something really, really scary is happening within our Presidency and lies, deception or at best shocking incompetence and stupidity is the order of the day in that office.

Thirdly, the statement by the President is almost certainly not factually correct. I for one would be quite surprised if a majority of judges of the Constitutional Court were set to rule against the President in terms of the application to force him to institute an arms deal inquiry. In my opinion, the constitutional law arguments (as opposed to ethical arguments or political arguments) in favour of an order by the court to force the President to appoint a commission of inquiry are at best weak and at worst a little absurd.

In papers filed in support of this application, the applicants argue that the refusal by the President to appoint an arms deal inquiry is unconstitutional because the failure is irrational in that it does not serve any legitimate government purpose and is not rationally connected or related to any such purpose. In other words, the applicant relies on a rule of law argument to contend that the Constitution places a positive duty on the President to take a very specific action (namely, to appoint a commission of inquiry into the arms deal).

Usually the rationality test set out above is applied in cases where the President or some other organ of state has done something and it is found that this action was irrational. Here the applicant wants a court to find that a failure to take a specific action was irrational – which is a very difficult argument to make.  In effect, the applicant is arguing that the Constitutional Court should order the President to make a policy decision to give effect to his duties that arise in terms of section 83 and 84 of the Constitution.

Relying upon the founding provisions of section 1 of the Constitution, which states, inter alia, that the Republic of South Africa is founded on the values of the supremacy of the constitution and the rule of law and a multi-party system of democratic government, to ensure accountability, responsiveness and openness and relying further on section 2 which affirms the supremacy of the Constitution, the applicant is contending that if this is read with section 84(2)(f) there is a positive obligation on the President to appoint commissions of inquiry when serious questions arise about large scale corruption and bribery in government. To quote from the papers:

His contention is that under the rule of law foundational to South Africa’s multi-party system of government, the President is obliged to ensure accountability, responsiveness and openness. Conduct inconsistent with these foundational values is invalid. Obligations imposed by the [Constitution], which include the responsibility of the President to appoint a commission of inquiry in the circumstances upon which the applicant relies, must be fulfilled. The refusal to appoint a commission of inquiry is accordingly constitutionally invalid.

It is clear that under section 84 of the Constitution the President has the power to appoint a commission of inquiry. It is also true – as the applicant contends – that this must be read in conjunction with section 83 of the Constitution, which places a duty on the President to uphold, defend and respect the Constitution as our supreme law and requires the President, further, to promote the unity of the nation and that which will advance the Republic.

But it is at best a stretch to then argue that the President cannot accountably and responsively ignore or refuse well founded requests for the appointment of a commission of inquiry in the present circumstances. It is an even greater stretch to imagine that a court will order the President to institute such an inquiry and that it will dictate the terms of reference of the commission of inquiry.

Even though the lack of a credible criminal investigation may lead one to question whether the executive has been serious in the past about uncovering corruption in the arms deal, and even if one can assume that the President has a positive duty in terms of the Constitution to take steps to ensure responsive, accountable and open government, the separation of powers doctrine has so far been relied upon by our courts to limit its interference with policy decisions of this nature which are usually taken by the Executive alone.

A court might well find that there is a positive duty on the President to do something about the allegations of arms deal corruption, but for a court to order the President to appoint a commission of inquiry and then to delineate the terms of reference of that Commission (reportedly the fear that has “forced” the President to make an announcement about the arms deal inquiry) would constitute an extraordinary invasion of the terrain usually occupied not by the courts but by one of the democratically elected branches of government.

It might well be – as the applicants suggests in its papers – that a reasonable apprehension has arisen that the arms deals may be tainted by misfeasance and/or malfeasance, in the forms of irregularities, fraud and corruption. It might also be that (as the applicants argue) this apprehension has arisen because of the criminal convictions of one Tony Yengeni, a former African National Congress (ANC) Chief Whip in parliament, and Schabir Shaik, a businessman and financial adviser to Jacob Zuma, the president of both the country and the ANC.

Interestingly, the applicant also relies upon the call for a commission of inquiry made, albeit obiter by Nicholson J in the case of Zuma and Another. v The National Directory of Public Prosecutions and Others. Recall that this was the case in which Nicholson basically found – based on newspaper articles – that there was some kind of conspiracy or at least a good possibility of a conspiracy – against Jacob Zuma, so maybe this played a role in the President’s thinking. Who knows? 

What I do know is that the case asking the Constitutional Court to order the President to institute an arms deal inquiry was always going to be a long shot. Personally, I would be quite surprised if any judges of the Constitutional Court (let alone a majority of its judges) decided that it was appropriate to order the President to institute such an inquiry. Unlike in the Glennister case where the majority of the Constitutional Court could rely on the fact that a failure to create an independent anti-corruption fighting body infringed on ordinary citizen’s social and economic rights and was also required by our international law obligations, in this case the request by the applicants is so specific that it would be seen as an interference with the powers of the executive. A separation of powers concern would therefore inevitably arise.

Maybe President Zuma “merely” has very bad lawyers advising him about his prospects in the Constitutional Court, or maybe he was duped into appointing this commission of inquiry by people who wrongly told him that the Constitutional Court was likely to order him to institute such an inquiry in any case. Either that, or the President is more wily than we give him credit for and he is playing an incredibly clever but highly risky game in which he is aiming to destroy all his enemies and detractors within the ANC through a carefully constituted arms deal inquiry.

One thing I do know, and that is that the Constitutional Court was highly unlikely to have ruled in favour of Crawford Brown in this case – especially in the terms requested by Crawford Brown in his papers. If the President thought that the Constitutional Court would rule against him, this may say more about the paranoia and incompetence of the President and those who advise him, than about the likely outcome of a case not even yet argued before the Constitutional Court.

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