Constitutional Hill

Jackie Selebi

Simelane: more unanswered questions

Dec 2nd, 2009
by Pierre De Vos.
64 comments

Why did Minister Jeff Radebe fail to address what appears to be one of the most egregious acts of dishonesty on the part of Adv Menzi Simelane? In his half-hearted defense of Adv Simelani, Radebe failed to explain why Simelane did not produce a letter, written by then President Thabo Mbeki to the then Minister of Justice regarding the Jackie Selebi case – even after being lawfully requested to do so.

On 22 October 2007 Vusi Pikoli’s lawyers wrote a letter to Adv Menzi Simelani, then Director General in the Department of Justice. The letter stated, inter alia:

May we please have copies of all communications and other documents relating the investigation and prosecution of Mr Selebi  which you or your Department may have sent to or received from the president or anyone in the Presidency at any time since 15 September….

This request seems pretty clear. Any half-way honest person would have understood what it meant. It must be conceded that a careless or overworked person might not have provided all the documents as requested because of an oversight or negligence.

A dishonest person, on the other hand, would have deliberately chosen not to provide all the documents as requested or would have followed instructions from his boss to be dishonest and to lie. Unless something far more sinister is at work here, Adv Simelane’s failure to produce this letter – a failure curiously not addressed by Radebe at all – suggests that he is a man who will deliberately try to mislead legal opponents by hiding information lawfully requested by them in order to protect the President.

During cross examination Simelane first conceded that the letter allegedly written by thenPresident Mbeki falls squarely within the ambit of documents requested. Yet Simelane wrote back after the request mentioned above was received and stated as follows:

We are not in posession of any documents relating to the investigation of the National Commissioner of Police, save for reports prepared by your client [Pikoli].

When first asked by Trengove why the letter was not produced Simelane said:

Well, I wasn’t informed about the letter, I became aware of the letter much later.

But later Simelane conceded that he was aware of the letter, which means his first statement was not truthful. Although he had not read it, Simelane claimed, he knew the President had sent a letter to the Minister. It was this very letter which led to the writing of another letter by Simelane which was later signed by the Minister (ordering Pikoli to stop the arrest of Selebi).  Yet he did not provide Pikoli’s lawyers with the letter as requested. Worse, he stated that there was no such documents in their possession.

When confronted about this, Simelane again changed his story and said that he did not think the letter by the President, requesting more information on the Selebi matter, related in any way to the investigation against Mr Selebi. This is unfortunately not a line of argument that could reasonably be pursued without losing every shred of credibility one might have had as a witness.

Trengove then pounces:

Trengove: You said: we have no such documents in our possession. And I want to know who decided to tell that lie. You or the Minister?

Later Simelane contradicts himself yet again and tells another wopper when he says:

No, we didn’t, we didn’t deny that the letter was there.

This is of course not correct. Simelane had written to Pikoli’s lawyers denying that there were any documents relating to the Selebi investigation in the posession of the Department. Yet the President’s letter – which he admitted he was aware of – dealt directly with the Selebi investigation. With Adv Trengove we should ask: Did Simelane decided to lie of his own accord or was he instructed to lie by the Minister, the President or any legal advisor of the President?

What makes this so curious is that the letter allegedly written by then President Mbeki to the Minister of Justice one day before the Minister of Justice signed a letter drafted by Simelane instructing Pikoli not to proceed with the arrest of Selebi does not contain the smoking gun evidence Pikoli had hoped for. The content of the Ministers letter, which contained the unlawful instruction to Pikoli not to proceed with the arrest of Selebi, seems to go much further than the request contained in Mbeki’s letter, which merely asked for more information on the Selebi case (information, we now know, which the President had already been given by Pikoli).

A conspiracy theory is doing the rounds that Simelane had not produced the letter because it contained an illegal instruction from then President Mbeki to have the arrest of Selebi stopped. According to this theory, another letter was conjured up after the fact when it became clear that it would have had to be produced to the Ginwala inquiry.

I am not sure I buy this. Surely Mbeki and his advisers would not have deliberately concocted fake evidence to escape responsibility for their unlawful actions? A more plausible explanation is that Simelane decided to lie about the existence of the letter because it showed that the suspension of Pikoli was directly related to the pending arrest of Selebi. At the time, President Mbeki had denied that the suspension of Pikoli had anything to do with the impending arrest of Selebi and this letter provided proof that Mbeki’s claim could not be sustained.

To protect the person who had appointed him, Simelane then misled Pikoli and the Inquiry by not producing the letter written by the President – despite being requested to do so and despite having a legal duty to do so.

Minister Radebe failed to explain why this action by Simelane does not warrant disciplinary action against Simelane. This is because there is no plausible explanation for this failure to produce evidence which Simelane had a legal duty to hand over.

This sorry tale provides more proof that Simelane is a man who is so loyal to his political bosses that he would try to hide the existence of evidence that would make his boss look bad. No wonder he was purportedly appointed by President Jacob Zuma as National Director of Public Prosecutions. With such a guy heading the NPA, President Zuma clearly has nothing to worry about on the legal front – even if the decision to drop charges against him is declared invalid.

Our own Minister Ras Dumisani

Nov 30th, 2009
by Pierre De Vos.
34 comments

Reading Minister Jeff Radebe statement in which he takes a stab at defending the indefensible “appointment” of Adv Menzi Simelane as National Director of Public Prosecutions (NDPP), I wondered whether the statement was not perhaps drafted by Ras Dumisani after partaking in the holy weed. Unfortunately the Minister’s defense is misleading in the extreme, does not address the concerns raised by the Ginwala Report, misconstrues the Ginwala Report findings and, further, misconstrues the judgment of the Supreme Court of Appeal and the Constitutional Court in order to gloss over Simelane’s obvious unfitness to hold office.

The Minister’s statement reveals that the Public Services Commission (PSC) has recommended that Adv Simelane be subjected to a disciplinary hearing because of the findings of the Ginwala Inquiry against him. The Minister has decided that this recommendations must be rejected on the basis, inter alia, that Simelane was not afforded an opportunity to give his side of the story and hence the PSC had flagrantly abused Adv Simelane’s fundamental rights to he heard.

This is, to say the least, a rather peculiar argument that displays a spectacular lack of understanding of the fundamental right to be heard. Adv Simelane would of course have been afforded the opportunity to tell his side of the story before a disciplinary hearing and his fundamental rights would have been perfectly preserved if the Minister had ordered a disciplinary hearing as recommended by the PSC. The PSC did not conduct a hearing and did not make any findings about whether Simelane is fit to hold office.

It was merely tasked to make a recommendation of whether further steps should be taken again Simelane. The Minister has obviously decided that such a disciplinary hearing would not be in the interest of Simelane because at such a hearing, chaired not by the Minister (a politician) but by a real lawyer, Ginwala’s serious findings of wrongdoing would have had to be scrutinised properly.

Minister Radebe states that the “attack on the credibility of Advocate Simelane by the Ginwala Enquiry because he had allegedly not disclosed this letter [written by him and signed by the then Minister of Justice] to the Enquiry and therefore made a misrepresentation to the Ginwala Enquiry is without any  foundation as the Ginwala Enquiry was already in possession of the letter before Advocate Simelane had given evidence”.

The problem is, the Ginwala Report makes no such finding whatsoever. The Ginwala Inquiry and the PSC Report actually refer to a different letter written by President Mbeki a day earlier, which Simelane had failed to provide to the Commission. The Minister is thus “refuting” a finding that was never made and fails to address the fact that Simelane had hidden the letter written by President Mbeki to the Minister of Justice from the Inquiry.

Either the Minister and his advisers are very, very dim-witted, confusing two completely different letters or, well, or they are trying to pull the wool over our eyes by not sticking to the facts (otherwise known by us mere mortals as the truth).

We know of course that Adv Simelane lied – not once, but twice – to the Inquiry by denying that he had obtained legal advice on the relationship between the Department of Justice and the NPA and only “remembered” that he had obtained such advice when he saw Adv Wim Trengove producing the document with the legal advice. Minister Radebe’s defense?

This is a common human experience in a court of law that a witness would correct him or herself. Such a correction does not necessarily justify a conclusion that a witness was lying when he corrected himself.

Anyone who has read the transcript of the cross examination would be hard pressed to agree. In any event, it is exactly to determine whether Simelane did lie that a full disciplinary hearing was recommended by the PSC. The Minister’s use of the word “necessarily” above is telling. Minister Radebe’s view is in essence: “Well Simelane might have lied. Or he might have first forgotten about the existence of legal advice that was at the heart of his own submissions to the Inquiry before miraculously “remembering” it. In any event, it would be unfair to Simelane to determine whether he is a liar by having a disciplinary hearing.”

This view seems to be based on a reasonable apprehension that the truth has a habit of emerging at disciplinary hearings.

Ginwala was particularly scathing of Simelane because he had drafted a letter ordering Pikoli not to proceed with the arrest of Jackie Selebi. The Minister quotes selectively from the Supreme Court of Appeal case to suggest that there was nothing wrong with this letter. But Radebe’s statement is unfortunately not correct as he fails to include the very next sentence in the SCA judgment which reads:

although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.

No wonder Minister Radebe has faith in Simelane. They both seem to have a tendency to make statements about the law which are not correct. Minister Radebe thus fails to address the fact that Simelane had drafted a letter instructing Pikoli not to arrest Selebi which led Ginwala to find:

The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

The selective quotation from the SCA judgement and a blithe comment that the Simelane could not be blamed for writing a letter that contained a patently illegal instruction because the Minister had signed the letter, suggests that Minister Radebe either holds the view that the SCA and the Constitutional Court are wrong about the nature of the NPA’s independence and that the executive is therefore justified in ignoring the courts, or that it is perfectly fine to appoint a person as NDPP who writes letters that is in breach of the law.

Either way, the statement by the Minister seems to confirm the view that Simelane was appointed not because he was fit and proper, but exactly BECAUSE he was not fit and proper.

Neither fit nor proper

Nov 25th, 2009
by Pierre De Vos.
65 comments

President Jacob Zuma has a wide – but not unlimited – discretion to appoint the National Director of Public Prosecutions (NDPP). By purporting to appoint Adv Menzi Simelane as NDPP, President Zuma acted unlawfully because Simelane clearly does not meet the requirements for the job as stipulated by the National Prosecuting Authority (NPA) Act.

The Constitution requires that the NDPP must be appropriately qualified and the NPA Act defines “appropriate qualification” as somebody who is: (i) a South Africa citizen; (ii) possesses legal qualifications that would entitle him or her to practice in all Courts in the Republic; and (iii) must be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity to be entrusted with the responsibilities of the office concerned.

As the Ginwala Inquiry made clear:

What the Act also envisages is that the incumbent must be a person of experience, integrity and conscientiousness to be entrusted with the responsibilities of the office of the NDPP…. The notion of integrity is one that does not attract much debate in this case. The notion relates to the character of a person – honesty, reliability, truthfulness and uprightness.

Unfortunately, we know from the Report of the Ginwala Inquiry that Simelane is not honest. Neither is he reliable, nor does he possess the necessary truthfulness and uprightness required by the Act. His appointment is therefore not legally valid as he does not meet the MINIMUM requirements for the job.

Simelane was the main witness of the government during the Inquiry but he showed himself to be a liar with a lack of understanding of his job and a willingness to mislead the Inquiry to achieve specific, politically required, ends.

The Ginwala Inquiry found that Simelane had misled the Inquiry by hiding from it the fact that he had obtained a legal opinion which contradicted his own views on the nature of the relationship between the Department of Justice and the NDPP. He only conceded that there was indeed such a legal opinion when he was confronted with this fact by Adv Wim Trengrove during cross examination. Ginwala states:

The DG: Justice had an incorrect understanding of his accounting responsibilities under the PFMA, despite being in possession of legal opinions from senior counsel explaining the ambit of his responsibilities. He allowed the Minister to continue with an incorrect understanding of the responsibilities of the NDPP.

Simelane had also drafted a letter – later signed by then Justice Minister, Brigitte Mbandla – which instructed Pikoli not to proceed with the arrest of Jackie Selebi. This instruction was clearly illegal and constituted a criminal offense in terms of the NPA Act. As Ginwala tactfully put it:

the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act…..

Ginwala also found that Simelane was not a man of honesty and integrity as he had made statements that were false and presented legal positions that were untenable:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation.

In the light of the above it is very difficult to sustain the fiction that Simelane is even remotely a person who could be called “fit and proper”. He is not honest. He is not reliable. He is not truthful. What counts in Simelane’s favour is that his view of the NPA – not shared by Ginwala, senior counsel or by any person who has read the Act and the Constitution –  is that the NPA is not independent, that the NPA should take instructions from the Minister of Justice and the President – even in making decisions on individual cases – and hence that the NPA is a tool in the hands of the government to do with it as it pleases.

No wonder President Zuma purported to appoint him. With Simelane at the helm, no one will ever again be prosecuted if the President and the Minister does not give the go-ahead. If this appointment is allowed to stand, it will bring an end to even the pretense that the constitutional guarantee that the NDPP must act without fear, favour or prejudice, will be adhered to.

This is the darkest and most scandalous day yet in the short life of President Zuma’s tenure. The appointment shows an utter disregard for the Constitution and the law. It is nothing more than the actions of a gangster hell bent on protecting himself and his cronies. I feel ashamed that I have given our President the benefit of the doubt for all these months.

Zuma spy tapes: will anyone be prosecuted?

Nov 9th, 2009
by Pierre De Vos.
38 comments

My daily newspaper reports this morning that the investigation into how the NIA’s top secret ‘spy tapes’ got into the hands of President Jacob Zuma’s lawyer, Michael Hulley – which led to the (probably unlawful)  scrapping of criminal charges against Zuma and ultimately to a change in government – has been completed.

The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because “the report has not yet been released to the appropriate authorities”. He also revealed that the intercepting of phone conversations involving McCarthy had been conducted by the NIA “lawfully in terms of a judicial direction”.

If the South African Police Service and the National Prosecuting Authority (NPA) took seriously its job to uphold the law and to act without fear, favour or prejudice (in other words, if it adhered to the Rule of Law), it would be hard at work preparing for the prosecution of those responsible for breaking the law.

One or more members of the intelligence service or the SAP obviously broke the law by leaking the tapes to the Zuma camp. Hulley (or perhaps President Zuma, if he was shown to ever have been in possession of the tapes) also broke the law by receiving those tapes. This is because private citizens (which both Hulley and Zuma were at the time) are not allowed to possess such classified information.

Recordings by intelligence services of private conversations – even those made legally – are classified and it was clearly a criminal offense for Hulley to have been given the tapes and for him to have received it.

The newspaper further states:

The investigation also established that the police were spying on McCarthy at the same time. “We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction,” Ngcakani said….

Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka’s phones. Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians – and creating hoax e-mails – he had issued a directive to the NIA and to the minister of police that “any interception using the National Communications Centre facilities needs to be passed by me”. But the NIA and police apparently defied this ministerial directive. “The NIA were obliged to report this to me as minister. They never did. I knew nothing about it,” Kasrils said.

Ngcakani’s report should of course be sent to the Joint Standing Committee on Intelligence (JSCI ) in parliament, as this is the committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. The chair of the JSCI is Cecil Burgess, one of the more pugnacious and shady new members of the Judicial Services Commission and Burgess claimed yesterday that he was not aware that the inspector-general had completed the spy tape investigation.

Asked yesterday if he would call for the report, Burgess replied: “It depends on what the report contains. There are certain things we may not be entitled to see.” He correctly pointed out that it was a criminal offense for anyone to give transcripts of tapped phone conversations – even legally tapped one’s – to a member of the public or for a member of the public (which, as I have pointed out, both Hulley and Zuma were at the time) to receive such tapes.

One would assume that Burgess and the members of his committee will insist that the flagrant breach of the law by intelligence operatives and by Hulley (and perhaps others in the Zuma camp) will be thoroughly investigated and that the cuplrits will be prosecuted. They obviously must also be deeply concerned about the possible breaches of national security (remember Vusi Pikoli was fired for not taking national security into consideration when he issued a warrant for the arrest of Jackie Selebi).

They would also, surely, be concerned about the fact that the police and the intelligence services lied to the Minister and would want to establish on which grounds the police and intelligence services obtained a warrant to tap the phones of a member of the NPA (who happened to have been investigating the Police Commissioner at the time).

The law society should surely also be deeply concerned that Hulley criminally obtained classified information which he then used to the advantage of his client? We know that professional bodies do not always act vigorously against their own members. Who will forget how the Medical Association of South Africa for many years avoided taking action against the doctors who saw Steve Biko just before his death? But surely the law society – as keen supporters of the Rule of Law – will surely not let Hulley off the hook merely because he happens to be the President’s lawyer? That would be rather self-serving and, well, dishonest.

Of course, chances are slim that anyone will ever be held responsible for the criminal activity which formed the basis for the dropping of the fraud and corruption charges against our President. This is because in our post-Polokwane world, like in George Orwell’s Animal Farm, some animals are seen as being more equal than others. (And I am not even talking about Julius Malema who believes that “Arrive Alive” and speed limits are stuff that concerns only mere mortals – not VIP’s like himself.)

What surprises me is that us mere mortals, who can actually remember who we are and do not always have to ask everyone “do you know who I am” (because I have forgotten my own name), just sit quietly by while those who style themselves as VIP’s lord it over us. Don’t we have any self-respect?  When will we rise up and tell those who act is if they are above the law (because they believe they are) that the law applies to them equally?

What is Miss Jackie up to?

Oct 29th, 2009
by Pierre De Vos.
28 comments

What is Jackie Selebi up to? (I sommer call him “Ms Jackie” because of his child-bearing hips and his predilection for expensive Italian shoes….) Why is Selebi’s lawyer arguing today for the recusal of the judge sitting in his criminal trial when things have been going rather well for Selebi? What with the state’s star witness having admitted that he is a serial liar and having self-destructed on the witness stand, it is unclear why Selebi is complaining so bitterly about the alleged bias of Judge Meyer Joffe.

Usually counsel for the defense only bring such a drastic application for the recusal of a judge when all seems to be lost and when a conviction seems almost certain, so why this application now? I have not attended the trial, but if the newspaper reports are even remotely accurate, it is clear that Selebi’s application has no chance of succeeding. 

Of course, section 34 of the Constitution states that everyone has the right to have their dispute resolved in a fair public hearing before a court, while section 35 of the Constitution guarantees for every accused person the right to a fair trial which means the judge hearing the case must apply the law and assess the facts of the case impartially and without fear, favour or prejudice.

At the same time the Constitutional Court has stated that given the special training and experience of judges there is a presumption that the sitting judge will be impartial and fair and thus an applicant who alleges that a judge is biased must establish that. The Court also held that this presumption of impartiality and fairness will not be easily dislodged. Judges have a concomitant duty to sit in any case in which they are not obliged to recuse themselves so a judge cannot recuse him or herself merely because that would make things easier or because of an unproven fear by an accused or the state that the judge might be biased.

The test for recusal is as follows:

The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the Judge has not or will not bring an impartial mind to bear on the adjudication of the case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the Judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten that an impartial Judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.

In the Wouter Basson case the state made an application for the judge to recuse himself but the rejection of that application suggests that Selebi will have no better luck in this case. (Ironically Selebi’s lawyer, who is arguing for the recusal of Judge Joffe in this case, was defending Basson at the time and opposed the State’s application for a recusal of Judge Willie Hartzenberg.)

In the Basson case the state claimed that during the trial Judge Hartzenberg had made remarks that gave rise to a reasonable apprehension of bias and that the legal rulings and factual findings made against the state by the judge were not only wrong, but were so unreasonable and one-sided as to give rise to a reasonable apprehension of bias.

In dealing with these issues the Constitutional Court cautioned as follows:

[T]his Court should bear in mind that in long criminal trials a judge may at times make remarks that are inappropriate, or display irritation towards counsel. At times such interventions may arise from attempts at humour. In considering the question of whether such remarks give rise to a reasonable apprehension of bias, a court should not hold a judge to an ideal standard which would be difficult to achieve.

Thus the fact that Harzenberg had complained that the state was conducting “a trial by ambush”, that he was “bored to death” by the state’s evidence, that counsel for the state was confused, that he had remarked that he had bruised the prosecutors ego, that he had laughed with counsel for the accused about the unsuccessful actions of the Assets Forfeiture Unit and that he had interfered with the cross examination of Basson did not establish, according to the Constitutional Court, a reasonable apprehension of bias required for a recusal order to have been granted.

The various mistakes of facts and law made by Hartzenberg J also did not convince the Constitutional Court that there was a reasonable apprehension of bias on the part of judge Hartzenberg.

This means that absent some new earth-shattering revelations about the alleged bias of Judge Joffe (secret tapes made by the National Intelligence Services, perhaps?), it is very difficult to imagine that the Selebi application will be successful.

Perhaps Selebi asked his legal counsel to bring this application because, not being a lawyer and being hard-headed, he really felt that the Judge was biased and thought there would be grounds for appeal if the judge did not recuse himself. Maybe he is just a difficult client who does not understand the law?

Or the defense is playing for time as it tries to secure additional evidence to discredit the state’s case? Or it is trying to intimidate the judge? Or it is stalling because it heard that the state is preparing to present bombshell evidence that will further tarnish the image and credibility of our former top-cop who, after all, was friends with Aglioti (“finish en klaar”) despite the fact that Agliotti is now emerging as one of the biggest charlatans and liars in the history of the criminal underworld in South Africa.

Whatever the reasons for this application, one thing is sure: thank goodness Ms Jackie is not our top cop anymore. Imagine having a commissioner of police who was either so stupid that he could not see that Agliotti was a crook or a liar, or was so “skelm” himself that he thought nothing of befriending a gangster and then allegedly taking hundreds of thousands of Rands from that gangster? The only person that must still be thinking that Ms Jackie was Police Commissioner Material must be our former President. But then again, he also never knew anyone who died of AIDS and thought no-one would ever be robbed walking to the SABC offices in Auckland Park. . .

Mbeki, “objective reality” and the truth

Oct 26th, 2009
by Pierre De Vos.
109 comments

Former President Thabo Mbeki used to be fond of lambasting his critics for their failure to grasp the “objective reality” about any number of important issues. He would perceptively highlight and analyse the ways in which objectionable master narratives influence the way we perceive reality before claiming to be free from the grip of such narratives and thus (unlike us mere mortals) to have full access to the “objective reality” the rest of us just could not see – usually in an attempt to defend the indefensible actions of his government or himself.

Thus he would write a brilliant analysis of the ways in which a kind of Afro-pessimism and racism influenced the discourse in South Africa on crime and corruption, and how such discourses reflected the fears and prejudices of “some among us”, before abusing this insight to make completely laughable claims to defend himself and his government from the valid criticism leveled against it.

He would point out, correctly in my view, that fears about crime was entwined with some people’s fears about a black run government and that perceptions about crime could not be divorced from perceptions about the so called criminality of black men. When many white people spoke about crime this was a way for them to express their racism and fears about black people in a more “acceptable” manner. But then he would go on a tangent and claim that crime was not really a problem at all in our country and that complaints about crime itself was just a matter of perception not linked to any “objective reality”: who would ever be robbed walking to the SABC studios he once mocked, just a few days before a journalist from CNN and his wife were robbed at gunpoint outside the SABC studios in Auckland Park!

He would point out, once again correctly in my view, that negative, deeply embedded, but often unspoken assumptions about Africa and how Africans are “naturally” corrupt clouded the vision of “some among us” about the prevalence of corruption in South Africa. But then he would rail against the “fishers of corrupt men” in the media and deny that there was a corruption problem in South Africa at all. After all, the “objective reality” according to Thabo Mbeki was that there was no arms deal corruption, that municipal officials (all disciplined cadres of the ANC) almost never stole public funds, that officials of the Department of Home Affairs were almost all imbued with the spirit of Batho Pele.

He also pointed out, correctly in my view, that Pharmaceutical companies are often unethical and exploitative and care more about profits than about the health of people in poor nations. But then he would madly veer off into cloud kookoo land and question the link between HIV and AIDS (“A virus cannot cause a syndrome”, “HIV is a CIA plot”) to try and justify the decisions of the government not to provide HIV positive mothers with the medicine required to save their babies from HIV (in other words, a decision to let those babies die).

Now our former President is back to his old ways. In an interview with the Sunday Independent he rails against the Nicholson judgment and points out (correctly in my view) that Nicholson did not base his judgment on proven facts according to appropriate the rules of evidence:

Mbeki explained his understanding of the meaning of Nicholson’s judgment. He felt that Nicholson “really sought to impugn our integrity”, and presented Mbeki and his cabinet as “dishonest people” who “for whatever reason want to intervene in ways that are illegal and unconstitutional”.

He said he, like his cabinet colleagues, took the oath of office seriously and the oath was, for him, not just a formality. “For somebody to pop up from somewhere with absolutely no basis … to come to a conclusion that these are bad people, dishonest people, acted in violation of their oath, this and that and the other; that was bad,” he said.

Well, although Nicholson clearly got it wrong by basing his decision on very flimsy evidence, this does not demonstrate that Mbeki and members of his cabinet did not act dishonestly. We all know that Mbeki and his Minister of Justice had a rather peculiar idea about the independence of the National Prosecuting Authority (NPA) and that they tried to interfere with his work in order to stop the arrest of Jackie Selebi, that an unlawful order was given by his Minister to Vusi Pikoli not to arrest Selebi, that Pikoli was suspended because he refused to be intimidated by the President.

We all know that the Minister in the Presidency (old Essops Fables) shamelessly intimidated members of Parliament to try and stop them from launching a proper investigation into the arms deal because we have read Andrew Feinstein’s first hand account of this intimidation. (If there was nothing to hide, why go to such extraordinary lengths to hide that nothing?) We all know that former President Mandela was humiliated and ridiculed by Mbeki cabinet members because he dared to speak up about Mbeki’s HIV and AIDS folly. We all know that there was arms deal corruption (some of it even leading to prosecution). We all know that Shaik and Zuma were investigated while others in the ANC and in government, who were not threatening Mbeki’s political position (like Zuma was), and who clearly had much to explain, were left alone.

Some will say: well we do not know this at all because it was never proven in a court of law. Bring the evidence! Until you have satisfied US that we are indeed crooks, we are not crooks! Prove it! Well, a court has never found that the apartheid state supported hit squads and at the time the government denied involvement in such hits squads and also demanded from those who pointed to all the available evidence to “bring the evidence” while at the same time doing everything in its power to discredit those with inside information and personal experience of such nefarious activities. Sometimes the truth does not wait for a court of law.

Often a body of evidence – both circumstantial evidence and hard evidence – emerges over time. Even where someone is not prosecuted, any reasonably well-informed person will be justified to make conclusions based on that evidence. For example, no one was ever prosecuted in the United States for fabricating evidence of weapons of mass destruction in Iraq and for deceiving the public about the reasons for going into Iraq. But there is such a wealth of evidence supporting the fact of fabrication that only a few die-hard George Bush supporters will now claim that Bush and his cronies were not thoroughly rotten and dishonest about the reasons for going to war with Iraq (and much else besides).

The same is the case surrounding the arms deal, corruption and political interference in decisions to investigate and prosecute (or NOT to investigate and prosecute) some well-connected ANC types for arms deal and other forms of corruption. It might not form part of the “objective reality” in which President Thabo Mbeki lives, but it does not mean that it is not so.

What is our commitment to transformation?

Oct 19th, 2009
by Pierre De Vos.
102 comments

A while ago I was lambasted by some readers for suggesting that some senior black leaders – including Jackie Selebi, President Jacob Zuma, Advocates for Transformation and the Black Lawyers Association – were guilty of hypocrisy because they seem to support the appointment of white lawyers in high profile cases. Why is there no outcry when Selebi appoints a white lawyer to defend him when there are talented black lawyers who could have dealt with his case just as well? (Granted, I was a bit more sarcastic than that.)

Well, I see I have gotten support from Sunday Times columnist, Pinky Khoabane. Yesterday she wrote:

The ever-growing trend among black political leaders to appoint white male lawyers to represent them in legal cases begs the question: 15 years into our democracy, does this country still not have black men and women who are capable of handling high-profile cases….

Selebi’s choice may have been motivated by Cilliers’s victory in the Basson case, but for goodness sake, was there really no one else, seeing that Selebi spent years in exile fighting for a nonracial society where hitherto disadvantaged people would be given more access to better opportunities professionally and otherwise? Do I smell double standards?

Gratifying as it is to note that I am not alone in noting this phenomenon, it seems to me the issue touches on something more profound than the messy shenanigans around the Jackie Selebi case.

What do we mean when we talk about “transformation”? How do we see our own role in that “transformation”? Are we committed to change the way we think and change the way our (often racist inspired) assumptions still guide our actions? Are we prepared to embrace values that truly reflect respect for the human dignity of all and show concern for the marginalised and oppressed? When we talk about transformation do we merely mean that we want to see white patriarchal men replaced by black patriarchal men while we are perfectly happy to keep the deeply unfair and inhumane system on which apartheid was built essentially in tact?

Of course, some people fundamentally oppose transformation because it threatens their material well-being and their feelings of race superiority. Pointing to the excesses of the new elite (real or perceived), they rail against any fundamental change on the basis that “black people will stuff everything up”.

Others support transformation only because they think it will bring material and other benefits (status and power) for themselves. They often defend the excesses of the new elite committed in the name of transformation by reminding us of the horrors of apartheid and then implicitly argue that they are doing no worse than those who ran the apartheid state. “They” did it during apartheid, and now it is “our” turn to do it, so why are you complaining, they often say.

Debate on the transformation of the legal system and the judiciary often falls into this spiral of accusation and counter accusation. ”You give me John Hlophe, but I will raise you with a mention of Wouter Basson and a Judge Braam Lategan.”  In this context a debate about legal and judicial transformation becomes nothing more than a debate about how many black men should be appointed to the various High Courts and why those black men already appointed should be defended or snidely vilified at all cost.

What a pity.

It seems to me what is needed to get us out of this mess is to take a step back and to move beyond the specific individuals and cases (like the tragic and scandalous Hlophe saga) and to ask all of us to think carefully about what we wish to achieve with the transformation of the legal system and the judiciary. 

Personally I see at least three legitimate goals for the kind of transformation we should be striving for.

First, we want to rectify past injustice. In 1994 only 3 of South Africa’s judges were not white and male and more than 90% of the practicing advocates were white. This obviously did not reflect the inherent capabilities of members of the legal profession, but was rather the result of apartheid policies which directly and indirectly were perpetrated by the (white and male dominated and controlled) legal profession.

White legal professionals would do well to remind themselves that many of them were part of a system that explicitly or tacitly condoned racial and gender discrimination in the legal profession. They should also remember that they are all still benefitting from the consequences of this discrimination. To some degree the race and gender transformation of the legal profession must therefore be concerned with numbers. This is not an issue of “racial esthetics” but of justice.

Second, there is a need to make the legal profession and the judiciary more legitimate. The law was an instrument through which apartheid was enforced and gender discrimination was sanctioned. Moreover, almost all leadership positions in the profession were held by white men, and this largely delegitimated the law and the courts which had to enforce the law. If we want to build a legitimate legal system, we need to provide more people with better access to justice while also changing the face of the legal profession and making it more representative in terms of race and gender.

Those who resist transformation might well be reminded that it is in their own interest to embrace transformation because without a legitimate legal system their own livelihood would be threatened. If our courts are not legitimate and if ordinary people feel that the law has nothing to do with their own lives, it will be far easier for uncrupulous politicians one day to undermine the Rule of Law and to destroy the independence of the judiciary.

Third, transformation is also about a fundamental change in the values underpinning the legal system. Do we really want to replace white, sexist and homophobic patriarchs with black, sexist and homophobic patriarchs? Do we want to replace white judges who care only about money and their own privileges with black judges who do the same?

It is this third aspect of transformation that seems to be falling by the wayside. When a member of the JSC questions a candidate for judicial appointment about her sexual orientation, when members of the JSC fails to question candidates about their views on gender equality and patriarchy, about their attitudes towards forced removals, about the importance of supporting active social movements to fight for the rights of the poor, the JSC is failing in its duty to support deep and meaningful transformation and runs the risk of appointing judges who might be black, but in all other ways would be carbon copies of some of the reactionary white judges appointed during apartheid.

My view is that if we really want to show a commitment to the transformation of the legal system, we should demonstrate a commitment to all three the aspects touched on above. While enthusiastically embracing the drive to change briefing patterns so that more women and black advocates can thrive, and while also clamouring for the appointment of more black and women judges, we should not think that this alone will truly transform our legal system.

Why is Jackie Selebi’s putting on such a curious defense?

Oct 6th, 2009
by Pierre De Vos.
126 comments

Jackie Selebi sure knows how to grab the headlines. He was at it again yesterday making all kinds of earth-shattering allegations that, if they were to be true, would rock South Africa and would further discredit the National Prosecuting Authority and two of its erstwhile bosses.

We do not know yet whether former Police Commissioner, Jackie Selebi, is guilty of corruption and defeating the ends of justice as alleged by the State. The State alleges that Selebi made R1.2-million from corrupt relationships with druglord Glen Agliotti, slain mining magnate Brett Kebble and former Hyundai boss Billy Rautenbach. We also do not know whether the claims by Selebi that both Bulelani Ngcuka and Vusi Pikoli pursued the case against him because they themselves are corrupt is true. That is for a court to decide.

However, the claim by Selebi that he was being prosecuted after discovering that Pikoli and his predecessor, Bulelani Ngcuka, had improper business dealings with dodgy businessmen, does (at least at first glance) seem curious from a legal perspective. Selebi made these allegations not in an attempt to have the case against him thrown out. In the light of the SCA judgment in the Zuma case that a prosecution does not become unlawful “merely” because charges were brought for an ulterior purpose – as long as the State brought the charges in order to secure a criminal conviction – this is a wise move.

But why is Selebi making these claims as part of his defence? Is he making a legal argument or is he rather playing a political game in order to garner sympathy by attacking two men who are rather unpopular with the crowd currently in charge of the country? It is difficult to say. 

In order to secure a conviction in the corruption case against Selebi, the State will have to convince the court beyond reasonable doubt that Selebi received the more than R1.2 million from the dodgy “businessmen”. It will then have to prove that Selebi did corrupt favours for these men and that there was a link between the payments and the favours, thus establishing Selebi’s intention to be part of the corruption.

In order to try and secure a conviction the state will call a very long list of witnesses. (See here and here.) The list does not include the name of Buleleni Ngcuka, but does include the name of Vusi Pikoli. One imagines that in order to stave off conviction Selebi will have to discredit a fair number of the witnesses that will come to testify about the R1.2 million allegedly received by Selebi and about the favours allegedly done by Selebi in return.

If the State has strong evidence – including documentary evidence – of the money allegedly received from the various criminals and underworld figures, then the case will probably turn on whether these payments could be linked to favours done by Selebi. The crux of such evidence may well have to be provided by witnesses who have concluded plea bargains with either Ngcuka or Pikoli.

I have no inside knowledge of the strategy employed by the defense, but from the available evidence it seems plausible that Selebi is attacking the credibility of Ngcuka and Pikoli not so much in an attempt merely to discredit them, but rather to try and undermine the credibility of the evidence provided by key witnesses who had concluded plea bargains with the state, including Glen Agliotti and Billy Rautenbach who will have first hand evidence of any favours  done by Selebi – if indeed favours were done.

The Selebi defense is therefore perhaps more astute than it seems. If the plea bargains can be attacked and the credibility of the witnesses who entered into such plea bargains can be destroyed, then Selebi might have a much better chance of being acquitted.

(As an aside, I am rather disappointed by Selebi for employing Advocate Jaap Cilliers SC to defend him. This shows a shocking disregard for the need to transform the legal system. How can talented black lawyers gain the necessary experience required to be elevated to the bench if criminal defendents like Selebi fail to employ them and choose instead to make use of the services of pale males. Is Selebi perhaps a victim of internalised racism and does he perhaps wrongly assume that a senior white man would provide him with a better defense than any of the many talented but less experienced black counterparts?  I am sure Advocates for Transformation and the Black Lawyers Association will shortly issue angry statements condemning Selebi for his racism. Besides, was Kemp J kemp to0 busy to take the case? Oops, for a moment there I forgot that President Jacob Zuma’s lawyer was also white.)

In any case, time will tell whether this strategy will work. Personally I am so confused by all the allegations and counter allegations in this case, that I have no clue which way it will go and whether either Selebi or the NPA will emerge vindicated or whether Selebi will manage to make his allegations stick.

On the one hand that great legal expert, Thabo Mbeki, claimed that he had not seen any credible evidence of any wrongdoing by Selebi and therefore could not suspend him – even after being fully briefed by Pikoli about the evidence against Selebi gathered by the State. On the other, a panel of eminent legal experts (admittedly perhaps not as well qualified as Mbeki in matters of criminality) who was asked to looked at the evidence by Mokotedhi Mpshe, concluded that there was a prima facie case against Selebi and that he should be prosecuted.  

Move over 7de Laan and Generations. The Selebi show is coming to town.

“I did have national security with that man”

May 15th, 2009
by Pierre De Vos.
46 comments

Former US President Bill Clinton famously lied to the American people by saying: “I did not have sex with that women”. He then tried to wiggle out of a difficult question posed by a lawyer by saying: “Well, it depends on what your definition of ‘is’ is”. Former President Thabo  Mbeki seems to have the same informal relationship with the truth regarding the suspension and purported firing of National  Director of Public Prosecutoins (NDPP), Vusi Pikoli.

In a remarkable affidavit submitted to the North Gauteng High Court by Mbeki in support of Pikoli’s purported firing, the former President tries to wiggle out of the corner he has painted himself into on this matter.

After all, if Pikoli was really suspended and then purportedly fired for dismissing Mbeki’s request to wait two weeks before arresting former police commissioner Jackie Selebi, thereby disregarding national security concerns, surely this should have featured in the letter that Mabandla wrote to Pikoli two days before his suspension?  And again, in the letter Pikoli received from Mbeki, suspending him? Perplexingly, this accusation was also missing from the terms of reference of the Ginwala Enquiry  itself.

No wonder Mbeki’s affidavit is so opaque and – dare I say – misleading. Either Mbeki and his office lied to the nation when Pikoli was suspended or he is lying in his affidavit submitted to the court. But he seems less adept at this kind of fudging of the truth than Bill Clinton ever was so the result is rather embarrassing.

First, Mbeki’s suggests that in his letter in which he suspended Pikoli he mentioned the threat posed by some crimes to national security “and expressed a concern regarding the applicant’s exercise of his discretion to prosecute offenders and the potential effect of such exercise on national security”. Given the fact that Pikoli was ostensibly fired because he failed to take into account national security issues when he obtained a warrant for Jackie Selebi’s arrest, this might suggest (admittedly without saying so directly) that the President’s letter had anything to do with the Jackie Selebi matter. It clearly did not. The “national security” concerns expressed in the letter related to plea bargains and had nothing to to with Selebi.

Second, Mbeki states that section 179(6) of the Constitution “stipulates that the Minister of Justice and Constitutional Development… must ensure that the Prosecuting Authority serves the public interest“. Unfortunately there is no such provision in the Constitution. Nor is there any case law interpreting this provision in the manner suggested in the letter.

Third, Mbeki claims that he did not mention the national security concerns relating to the arrest of Jackie Selebi because an Enquiry would be held in which this question could be ventilated. This does not seem accurate, as the terms of reference of the Ginwala Enquiry refers to “the threat posed by organised crime” to the national security of South Africa” and does not mention any threat to national security posed by the arrest of Selebi. So, unless Mbeki is of the opinion that the Police itself is an organised crime ring, it cannot be true that the arrest of Selebi was something he envisaged would be dealt with by the Ginwala Enquiry.

Moreover, when the government presented its case against Pikoli at the Ginwala Enquiry it failed to mention any – I repeat ANY – concern that Pikoli’s actions to obtain an arrest warrant for Selebi was in any way threatening national security. Claiming now that such concerns was at the heart of the suspension of Pikoli can only mean one of two things: Mbeki and his underlings lied until now about the real reasons for Pikoli’s suspension or they are lying now.

Fourth, Mbeki denies that Pikoli regularly reported to him on progress in the Selebi investigation. According to Mbeki, where meetings were held with the NDPP it was to “facilitate access to information held by the SAPS”. This denial seems difficult to sustain. In an affidavit provided by Acting Head of the NDPP, Mokotedi Mpshe, Mpshe claims that the NDPP had met with the Minister and Mbeki on ten different occasions to inform them about the Jackie Selebi matter. Moreover in a fourteen page letter written to Mbeki on 7 May 2007 by Pikoli, the President is extensively informed about the Jackie Selebi investigation. Anyone who reads this letter will have difficulty in agreeing with Mbeki’s contention that he was not informed about the investigation. But I suppose it depends on what your definition of “regularly” is.

Interesting, Mbeki now claims that when he suspended Pikoli he “did not purport to place verbally before [Pikoli] all the grounds” for his decision. This means that Mbeki is now admitting that he misled Pikoli and the public and that the grounds given to Pikoli and later communicated to the nation for the suspension were not the only reasons for his suspension. Despite claiming at the time that the suspension was due to a breakdown of the relationship between Pikoli and the Minister, Mbeki now claims there were other grounds never communicated to us and that his spokespeople lied when they denied the suspension had anything to do with the Selebi matter.

Mbeki also has to explain why he did not respond to Pikoli when he said he would give the President one week to prepare the environment for the arrest of Selebi and he does so by contradicting himself. First, he denies that he did not raise the national security issue with Pikoli when he suspended him but a few paragraphs later he states: “I fail to understand how my failure to complain directly to what I viewed as a fait accompli can be construed as a lack of concern that I was not informed of the intention to obtain the warrants.”

This does not seem to make sense and seems like an obvious contradiction. I suppose it is difficult to keep your story straight if your story keeps on changing. But I suppose it depends of what your definition of “directly” is.

This affidavit tries to argue ex post facto that Pikoli was suspended only because he obtained an arrest warrant for the National Police Commissioner. But the Presidency at the time explicitly denied that this was so. I am not sure Mbeki appreciates how poorly this admissions in his affidavit reflects on the credibility and integrity of the Presidency during his term.

The only possible conclusion one can draw from this affidavit is that – like Bill Clinton – the former President is rather economical with the truth. What we do not know is whether the lies occured when Pikoli was suspended or whether they are happening now.

NPA plagiarism scandal maybe hides a deeper truth

Apr 16th, 2009
by Pierre De Vos.
76 comments

News that Mokotedi “Kokkie” Mpshe plagiarised a decision of a Hong Kong court that was later overturned on appeal when he tried to justify his decision to drop charges against Mr Jacob Zuma, is of course highly embarrasing. But does it have any legal significance? And what does this say about the NPA – which is constitutionally required to act without fear, fabvour or prejudice – and ít integỉty and independence?

I, for one, was not surprised by this news. The weird string of cases from the House of Lords mentioned in the Mpshe document, seemingly strung together without much attempt at logic or reason, always struck me as odd. South Africa has a written Constitution and the NPA has a legal duty to follow our own prosecution policy when it decides to continue a prosecution or drop charges against an accused despite there being a winnable case against the accused. The Hong Kong court’s views on this issue was therefore allways going to be legally of little value.

And as the legally binding prosecution policy makes clear, sometimes the NPA will have a duty to prosecute no matter what the circumstances might be. This will depend on the seriousness of the charges, the effect of the kind of crime on the morale and well-being of the nation and whether the dropping of charges would send a signal to the public that would make them lose trust in the criminal justice system.

The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took thí leap over the abbyss.

Maybe it is at this point good to recall what happened when then President Thabo Mbeki suspended Vusi Pikoli and “Kokkie” Mpshe was appointed as acting head of the NPA. Remember, Pikoli had obtained a warrant for the arrest of the Police Commisioner as well for a search and siezure of his premises and the then President really was not amused and wanted Pikoli to stop (or at least wait with) the arrest.

The same night Mbeki suspended Pikoli, and newly appointed Mpshe himself drove to the magistrate to have the arrest warrant overturned and sent someone else to have the search and siezure warrants overturned (or it might have been the other way around?). At the Ginwala Commission it transpired that Presidential adviser, Mojanku Gumbi, and Director General of Justice, Mendi Simelane, helped draft the documents to have these warrants overturned.

But when Debra Patta asked Mpshe a few days later if he had gone to the judge to overturn the warrants, he denied that he had done so. That was because he had actually gone to a magistrate to overturn the arrest warrant and he could mislead Patta (and the nation) without actually telling a bare-faced lie. His underling had gone to the judge and was not succesful in his bid to have the other warrant overturned.

It is only a fool that will think he did this without any interference from the Presidency and/or the government. Why else would Gumbi and Simelani help with the drafting of the papers? Why else was Pikoli suspended?

Seems to me it was not only the letter written by Simelane and then signed by Justice Minister, Brigitte Mabandla, to Pikoli instructing him not to proceed with the execution of the arrest and search warrants against Selebi, that could possibly have constituted criminal interference with the NPA in contravention of the NPA Act. Someone at the Presidency may also have to be investigated and may then very well have to be charged with this criminal offense.

Mpshe has therefore demonstrated in the past that he does not have exactly the same – correct – view on the independence of the NPA as Vusi Pikoli and that he definitely does not have the backbone of Pikoli either. When Mpshe then said that the decision to drop charges against Mr Zuma was made under time pressure, and that there was interference in the timing of laying the charges, the alarm bells went off.

After all, Mpshe was supposed to have made the decision on when to charge Zuma and now he was blaming others for interfering with the timing of the decision he had claimed to have made himself. Moreover, Mr Zuma’s application for a permanent stay of prosecution was only to be heard in August, so what was the time pressure Mpshe spoke about? Could the time pressure relate to the looming election and perhaps to some informal deal struck with the ANC bigwigs to drop charges before the election?

This suspicion is enhanced by the fact that Mpshe had invited Mr Zuma to make representations to him about his case, despite the fact that the Supreme Court of Appeal had found that there was no such legal duty on the NPA and the case was still under consideration by the Constitutional Court. Why did Mpshe suddenly invite Zuma to make representations – even though he had no duty to do so? Was it suggested to him that this was a way of securing his career advancement? When and how was this decision taken? Who “engaged” Mpshe on behalf ò Zuma before this decision was taken?

In a case reviewing the decision of the NPA answers would have to be found for these perplexing questions. One need not be a conspiracy theorist to suspect that Mpshe had buckled under pressure from Zuma or someone close to him and that a decision to drop the charges was then made before any of the evidence of the alleged interference was ever presented to him. Could it be that a reason had to be found for this outrageous decision, so the representations were made and the reasons cooked up after the fact?

I suspect that because the decision to drop  charges met with stern resistance from the lawyers within the NPA, the reasons provided for the dropping of charges were narrowly tailored to placate these lawyers who knew they had a winnable case. So flimsy reasons had to be cobbled together and this has now completely undermined the credibility of the NPA and opened it up for a review of the decision.

If the NPA had merely said that after receiving representations from Zuma it had decided there was no winnable case against him, that would have been the end of the matter. But because the lawyers said they would not agree to such a statement, Mpshe had to steal some phrases from an overturned decision in that bastion of democracy, Hong Kong, to justify an essentially predeterimined outcome.

I sincerely hope I am wrong. But at this point the ball is in Mpshe’s court to demonstrate why we should have any trust in his credibility. Sadly the credibility of the NPA has also further suffered in the process. Which two-bit crook with money now charged with a crime is not going to claim that the NPA conspired against him or her?

The only way to restore some credibility to the NPA is for Vusi Pikoli to be reinstated. Seems he was the only political appointee who stood his ground against interference from the politicians, the only mad with some principles. Which obviously cost him his job. But then again, as Pikoli has learnt so bitterly: One cannot afford principles if one wants to remain in favour with the present ANC crowd.

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