Jacob Zuma

How to respond to art (hint: not with threats of censorship)

May 20th, 2012

Canadian politicians seem to be slightly more mature about being depicted in a work of art with their private parts hanging out. The large oil on canvas painting, which Canadian Prime Minister Stephen Harper did not pose for, by Kingston, Ont.,-based artist Margaret Sutherland shows the prime minister reclining on a chaise lounge wearing nothing but a subtle smile, surrounded by people in suits, whose faces can’t be seen. A dog rests at his feet as a woman in business attire offers him what looks like a Tim Hortons cup on a silver platter.

As reported rather tongue in cheek by the Canadian press, the piece appeared to draw out the art critic in many Canadians. ”This is just too funny – think she painted him a bit skinny – he should really be wearing his vest,” Myrtle Graham posted on Facebook.”This made my day. Nude Stephen Harper is ART,” tweeted Denise Balkissoon.

Other’s weren’t as amused: “Oh dear lord: may have to pluck eyes out now,” tweeted Paula Schuck. “I don’t know whether to laugh or be horrified,” added Kelsey Rolfe.

The Prime Minister’s Office also took to Twitter to voice a reaction to the piece. ”On the Sutherland painting: we’re not impressed. Everyone knows the PM is a cat person,” tweeted Harper spokesman Andrew MacDougall, referring to the canine on the canvas.

Others on Parliament Hill took a similar tongue-in-cheek approach.”This is one case where I think we really do need a Conservative cover-up,” said Liberal MP Scott Brison. “I guess you could say in this painting it’s quite obvious that the Prime Minister has very little to hide.”

So far no one has threatened to obtain an urgent interdict to have the painting removed or destroyed. Not even cat lovers.

On the President, his penis, and bizarre attempts to censor a work of art

May 17th, 2012

by Pierre De Vos.

205 comments

The President’s manhood is no laughing matter – at least not for the ANC - whose spin doctors forgot that making a big fuss about something as deliciously humorous as the President’s penis (especially our President with his sexual history and his patriarchal attitudes towards women) has a tendency to draw attention to the very thing (pun intended) one is outraged about and which one demands to be banned. They have also forgotten that one has a tendency to make a fool of oneself if one conflates a work of art with real life and demands that a work of art should be censored for humiliating a real person (albeit a philandering politician). Isn’t that what the old omies of the NG Kerk used to do back in the day?

Did they not watch the movie Howl, about the trial of the publisher of Allan Ginsberg’s long poem of the same name, who was charged with obscenity for publishing the poem. If they had watched this movie, they might have remembered how ridiculous all the state witnesses were made to look during that trial while these witnesses tried to measure a work of artistic expression against a moral standard that was at best vague and at worst impossible to pin down.

I was thus quite amused to read in an ANC press statement that the party ”is extremely disturbed and outraged by the distasteful and indecent manner” in which the artist Brett Murray and the Goodman Gallery in Johannesburg “is displaying the person (sic) of Comrade President Jacob Zuma”. The ANC is not happy. Patriarchs like to use their penises for all kinds of things, but usually do not like to have them made fun of in a work of art. It insults one’s manhood, I am told.

Hence the ANC tirade which continues: “This disgusting and unfortunate display of the President was brought to our attention by one of the media houses and we have physically confirmed this insulting depiction of the President”. The ANC does not say what this physical confirmation entailed or whether it had determined whether the penis displayed in the art work is sufficiently similar to that of the President to warrant the conflation of art with reality.

I provide a copy of work of art causing all the trouble below so that those who might not have read City Press on Sunday have the chance to enjoy this provocative piece of art and to consider its meaning and esthetic value for themselves. (Feel free to copy it and send it to all your friends! After all, in a democracy making up one’s own mind about something – also the meaning and value of a work of art – is a human right.)

Afterthought: The poster of which this painting is a parody may not be known to everyone, so I repost it here:

The ANC may not be aware of the fact that section 16(1)(c) of the Constitution states that everyone has the right to freedom of expression, which includes ”freedom of artistic creativity”. It is true that no right is unlimited but even where the right to free expression is limited an exception is usually made for artistic expression. Our law often distinguishes between real depictions of individuals and art works and hardly ever allows for the censoring of the latter. For example, section 12 of the Promotion of Equality and Prevention of Unfair Discrimination Act (which prohibits hate speech) explicity makes an exception for a “bona fide engagement in artistic creativity”. Section 3 of the Film and Publications Act contains a similar exception.

The fact that the ANC seems incapable of distinguishing between a work of art and real life will probably ruin their legal case they are planning to launch. The ANC statement says that it has instructed its lawyers to approach the courts to compel Brett Murray and Goodman Gallery to remove the portrait from display as well as from their website and to destroy all printed promotional material relating to the work. But given the protection for artistic freedom in the Constitution and the many exceptions in our law made for the expression of such artistic creativity, I am am almost 100 percent certain that the ANC’s proposed legal action will not be successful. In a democracy, courts seldom order the censoring of a work of art – even if that work of art makes fun of the President and his philandering patriarchal ways. I quote the rest of the ANC statement in full for your further gratification.

We have also detected that this distasteful and vulgar portrait of the President has been displayed on a weekend newspaper and its website, we again have instructed our lawyers to request the said newspaper to remove the portrait from their website. It is in our view and we remain steadfast in that the image and the dignity of our President as both President of the ANC, President of the Republic and as a human being has been dented by this so-called piece of art by Brett Murray at Goodman Gallery. We are also of the view that this distasteful depiction of the President has violated his individual right to dignity as contained in the constitution of our country.

The same gallery has displayed the logo of the ANC without the permission of the ANC, with the inscription FOR SALE on it, both these portraits are a clear calculation to dismember and denigrate the symbols and the representative of the ANC, chief amongst them, the President of the ANC. The ANC believes in both freedom of the press and artistic expression. The vulgar portrait and the dismembering of the ANC logo by Brett Murray is an abuse of freedom of artistic expression and an acute violation of our constitution, apart from being defamatory. That is why we have instructed our lawyers to approach the courts in-view of these violations and the defaming nature of the so-called President Zuma portrait titled ”The Spear”.

Issued by:
Jackson Mthembu
African National Congress

As this is a work of art, there is no chance that any half decent judge would grant the orders requested by the ANC, first, because there is no law that prohibits an artist from making such a portrait and second, because if there were such a law it would be unconstitutional. That is why I have taken the liberty to reproduce the artwork here and why I have invited my readers to distribute it widely. There is no place in our democracy for this kind of Christian Nationalist-like moral outrage and the concomitant attempts at censorship of artistic expression.

All the ANC has done is to make themselves (and our President) the laughing stock of the country. In fact, if I was a conceptual artist I would have taken the ANC statement, superimposed it over the ANC logo, and framed it before asking the Goodman Gallery whether it wanted to display my work of art. My work would be humorous, yes, but would also make an important point about artistic expression. I am sure I could have gotten a few thousand Rand for it, too.

What will happen to Minister Mthethwa?

Apr 17th, 2012

by Pierre De Vos.

60 comments

A good politician knows how to deny something without telling an outright lie. If he or she is then caught out, the politician can claim that he or she never told a lie, but may inadvertently have given the wrong impression when denying certain facts. Sometimes for political reasons the situation may be so grave that it would require an outright lie (“I did not have sexual relations with that woman, Ms Lewinsky”). In others words, the politician may believe that he or she has no option but to lie in order to deal with a difficult political or personal problem. When caught out, that politician can then get into terrible difficulties, as did then President Bill Clinton who was ultimately impeached after lying about his sexual relations with Ms Lewinsky. (After impeachment, Clinton was acquitted by the Senate.)

Which brings us to the subject of this post, Police Minister Nathi Mthethwa, and his alleged abuse of a crime intelligence slush fund to fund a R200 000 security wall around his private property. Last week City Press alleged that almost R200 000 from the slush fund was used for renovations to Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. City Press pointed out that these payments were illegal as the secret fund can only be utilised to finance secret covert crime intelligence operations. Security renovations at the homes of Cabinet ministers are done by the department of public works and have to be declared to Parliament.

But the problem for Mthetwa was more acute than the allegations of the unlawful use of a slush fund. The problem is that the slush fund is controlled by General Richard Mdluli, the head of crime intelligence, who was facing charges of murder, fraud and corruption. Hawks spokesman McIntosh Polela astonishingly conceded last week that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. If this is all true, then it would mean that Mthethwa had ordered an end to a criminal investigation which might well have implicated him.

In any event, the Minister is not legally entitled to instruct the Hawks to halt any investigation. It is true that section 17I(2) of the now unconstitutionally declared section of the Police Service Act states that a Ministerial Committee may determine: (a) policy guidelines in respect of the functioning of the Directorate; (b) policy guidelines for the selection of national priority offences by the Head of the Directorate; (c) policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate; (d) procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions. The Ministerial Committee is authorised to “oversee the functioning of the Directorate”.

This means, first, that the Minister cannot issue any instructions to halt an investigation. Second, that if meddling were to take place, it had to be done not by the MInister but by the Ministerial Committee in the form of “policy guidelines”. If Minister Mthethwa did indeed give the instruction as claimed by Polela, this was therefore not legal.

If the Ministerial Committee issued policy guidelines aimed at halting the investigation, it would demonstrate the correctness of the Glenister judgment. The current situation also seems to illustrate better than any abstract or academic exercise why the current draft legislation purporting to give effect to the Glennister judgment to create an independent corruption fighting unit, does not in fact comply with that judgment.

The draft legislation allows the very Minister who is alleged to have instructed that the investigation implicating him in corruption should be stoppped to oversee the new corruption fighting unit. A newly proposed insertion of section 17DA provides wide discretion for the Minister to suspend and ultimately to remove the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This means if the Minister had given an unlawful instruction to stop an investigation into corruption in which he is allegedly involved, and the head of the Hawks had refused to obey this, in terms of the draft legislation the Minister would have been able to suspend the head of the Hawks without any pay and ultimately to have the head of the Hawks fired on the vague ground that he was inefficient.

That is why the Glenister judgment insisted that any corruption fighting unit had to be free from political influence and interference (something clearly not the case at present) so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. As the judgment emphasised, it was essential for the body to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.

Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent — in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations — to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.

If anything illustrates the wisdom of this finding, it is the facts surrounding the implication of the political boss of the Hawks in corruption and the attempted cover up of the corruption by allegedly ordering a halt to the investigation.

I would guess that this is why, when confronted by these allegations last week, Mthethwa asserted: “The minister wishes to put on record that neither his house in KwaZulu-Natal nor those of his immediate relatives were built, refurbished and paid for with any source of public funds or taxpayers’ coffers.” Tellingly, so it seems to me, the denial seemed forthright and categorical, yet it did not state that funds were not used for the security upgrade involving the building of a security wall, leaving open a tiny gap for the Minister to wiggle through if caught out in a lie.

City Press reported this week that City Press it has in its possession the following hard evidence proving that the MInister had misled the public:

» The risk assessment that was done at Mthethwa’s property by Brigadier T Tshika of the counterintelligence division on Mdluli’s instruction in June 2010;

» A secret services account claim form, dated September 14 2010, on which a Lieutenant Colonel DG Naidoo requested R70 738.60 “to carry out security upgrades at the minister’s official residence”. The claim was approved by then chief financial officer of crime intelligence Major General Solly Lazarus;

» A second secret services account claim form, dated December 13 2010, on which Naidoo requested R57 146.30 “to purchase building material and hardware . . . to carry out security upgrades at the minister’s official residence”, which was approved
by Lazarus;

» A third secret services account claim form, dated January 31 2011, on which Naidoo requested R67 696.55 “to purchase building materials and hardware . . . to carry out security upgrades at the residence of the minister of police”, approved by Lazarus.

This is rather damning of the MInister, who appears to have misled the public with his denial. But what happens now? Obviously, if it turns out that the Minister did lie about the slush fund and then did order the suspension of the investigation into his alleged involvement in corruption, he needs to be fired. Meanwhile the Public Protector may well be able to investigate the Minister for breaches of the Executive Members Ethics Act, read with the Ethics Code.

In terms of section 2.1 of this Code, Members of the Executive must to the satisfaction of the President or the Premier, as the case may be: (a) perform their duties and exercise their powers diligently and honestly; (b) fulfil all the obligations imposed upon them by the Constitution and law; and (c) act in good faith and in the best interest of good governance; and (d) act in all respects in a manner that is consistent with the integrity of their office or the government.

Section 2.3 of the Code states that Members of the Executive may not, amongst others, (c) act in a way that is inconsistent with their position; (d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; (f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.

If the allegations are true that the Minister had relied on the crime intelligence slush fund to build a wall around his private home and had then misled the public about it, he would be in clear breach of these provisions. In terms of the ACT, the Public Protector is empowered to investigate breaches of the Code on the receipt of a complaint. The President is then supposed to act on the complaint. If the Public Protector finds the Minister guilty, the President would be expected to fire the Minister as happened with the Minister of Public Works, but in this case this is less likely to happen because the Minister is a political ally of the President and the elective conference is only a few months away.

But President Zuma may be put in a very tight spot. After all, if, after a guilty finding, the President fails to act, this will further cement the public perception that President Zuma is more intent on securing his own future than in dealing with corruption and maladministration. This may, ironically, be used by President Zuma’s political opponents to question his probity and to diminish his standing before the elective conference in December. Whether he will then fire the Minister or not may well depend on whether the Minister was privy to any incriminating knowledge regarding the President himself.

What will we learn from NPA record on Zuma prosecution?

Apr 12th, 2012

by Pierre De Vos.

60 comments

News that the National Prosecuting Authority (NPA) has decided not to appeal the Supreme Court of Appeal (SCA) decision handed down last month in which it declared the decision by the NPA to drop all charges against President Jacob Zuma reviewable on the ground of legality and ordered the NPA to produce the record on which it based its original decision, comes as something of a surprise. I, for one, thought that the NPA would appeal the case because an appeal would have been politically beneficial to President Jacob Zuma who might want this case to drag on as long as possible.

President Zuma was also a respondent in this case and may still decide to appeal the judgment. If he decides not to appeal, the NPA will have to provide the Registrar of the court with the “reduced record” which the NPA relied on to make its original decision. After looking at this record the DA will then have to decide whether it is worth pursuing this case and whether there is merit in having the decision reviewed by the High Court.

The SCA made the following order regarding the production of this “reduced record”:

the first respondent [NPA] is directed to produce and lodge with the Registrar of this Court the record of the decision [to drop charges against Zuma]. Such record shall exclude the written representations made on behalf of the third respondent [Zuma] and any consequent memorandum or report prepared in response thereto or oral representations if the production thereof would breach any confidentiality attaching to the representations (the reduced record). The reduced record shall consist of the documents and materials relevant to the review, including the documents before the first respondent when making the decision and any documents informing such decision.

When the former acting National Director of Public Prosecutions, Mokotedi Mpshe, announced that the NPA was dropping the charges against President Zuma, he indicated that the representations submitted by the legal representatives of Mr Zuma (as he then was) pertained to the following issues: the substantive merits of the case against Zuma; the argument that Zuma would not receive a fair trial; the practical implications and considerations of continued prosecution; and policy aspects militating against prosecution.

Mpshe made it clear that the NPA “could not find anything with regard to the first three grounds that militate against a continuation of the prosecution”, meaning that the NPA believed it had a winnable case against Zuma and that Zuma would be able to receive a fair trial. The NPA will have to produce the record and the documents which led it to this conclusion.

This means that the documents setting out the strength of the corruption case against Zuma will have to be produced along with legal memorandums dealing with allegations that Zuma would not be able to receive a fair trail because of the way in which the then Scorpions conducted the case. These documents, if made public, could be extremely embarrassing to the President as it might remind South Africans of the fact that a strong prima facie case of corruption exists against President Zuma, a case which he has never answered despite claims at the time that he wanted to clear his name.

But the NPA will also have to furnish other documents which might embarrass former President Mbeki and others who might have plotted against Zuma. This is because the reasons given for the dropping of the criminal charges against Mr Zuma (as he then was), centred on the alleged abuse of the process and as Mpshe’s statement made clear this turned on allegations that there was some manipulation inside the NPA regarding the timing of bringing charges against Zuma.

The NPA decided to drop the charges against Zuma after listening to the recordings of various phone conversations between the head of the Scorpions and other role players. Although Mpshe’s statement is coy on this issue, it appears as if Zuma’s lawyers provided the NPA with these recordings. However, crucially, it appears from Mpshe’s statement that it was not these recordings provided by Zuma’s lawyers on which it relied to drop the charges against Zuma. The following extract from Mpshe’s statement is pivotal:

Although the recordings sounded authentic, the NPA decided to approach agencies that have a legal mandate to intercept telephone calls with a view to ascertaining whether they may have legally obtained recordings of the same conversations.

The National Intelligence Agency (NIA) confirmed to the NPA that it indeed had legally obtained recordings of many of the same conversations which were obtained during the course of its investigation into the circumstances surrounding the production and leaking of the Browse Mole report.

NIA indicated that it was able to share these legally with the NPA for the purposes of the investigation and for reaching a decision in this matter. Thus the NPA was able to make transcripts of the relevant portions of the recordings for this purpose and NIA has declassified these transcripts as they are not directly relevant to its own investigation. The NPA is thus confident that its decision is based on information that was intercepted legally and obtained legally by the NPA.

The transcripts contain material that was of vital importance in the NPA reaching its decision, and the NPA has decided to make its contents public as it believes it is in the public interest to do so. The transcripts have been declassified, the NPA believes that there is no legal impediment to its doing so.

Despite this passage, the NPA never made public all the transcripts in its possession. There are at least 28 different phone calls referred to in the NPA statement. Rather Mpshe’s statement included selected extracts from these transcripts to justify the conclusion that there was an abuse of process which fatally tainted the prosecution. The NPA will now have to provide all the transcripts which, one assumes, will finally be made public.

The extracts provided by the NPA at the time suggested that the major players were in regular contact with then President Mbeki. For example, the following extract from the NPA document refers to the following telephone conversation between Leonard McCarthy (LM) and Bulelani Ngcuka (the comments on the left are the explanatory comments provided by the NPA):

LM: The third issue is, I met with the guy I mentioned, and you know his line is almost like that of Sam
BN: Laughs
LM: But he said he will. He says he will speak to the man but his he is back over the weekend, but he knew, he feels very strongly that I should not see the guy directly
LM: So that he has a shield, so that if this issue comes up then he can say “I don’t know what the fuck you are talking about”

There is regular reference to the need to meet or discuss with “the man”, “the other fellow” or “guy” or “he”. In calls 17, 21, 25, 26, 28 it is clear that it is the President. In most other cases it is not clear who is meant.

To complicate matters further, Bart Ford, a senior commissioner at the CCMA ruled in a separate matter relating to the unfair dismissal application of a former Deputy Head of the Special Investigative Unit that these recordings were illegally obtained and could not be used in the arbitration hearing. It is unclear whether these recordings are the original recordings provided by President Zuma’ and his lawyers (which would suggest that the original recordings were illegally obtained and that our President and/or his lawyer committed a crime) or whether they refer to those allegedly secured from the NIA. In any case, the decision of the CCMA is of course not binding on the High Court, but if the recordings were indeed illegally obtained that would cast some doubt on the decision by the NPA.

So we wait with bated breath for the NPA to produce the “reduced record”. This will not only help everyone to evaluate the strength of the criminal case against President Zuma, it will also give some indication of whether the decision of the NPA to drop the charges against Zuma was legally sound or whether it might have been based on illegally obtained recordings made by lawless members of the intelligence services.

Pardoning criminals not such a good idea, Mr President

Apr 10th, 2012

by Pierre De Vos.

45 comments

In the nineteen seventies and nineteen eighties it was a regular storyline of Afrikaans movies and TV series: the father of our heroine – an attorney – is disgraced after it is discovered that he had stolen money from his clients by misusing the money placed by his clients in trust with him, and he is convicted of theft and sent to prison.

The reputation of the family is destroyed and, because of all the stress and the shame, the disgraced attorney’s daughter uncharacteristically finds solace in the arms of an unscrupulous pierewaaier (dandy), who seduces her and turns her into a “fallen woman”. She falls pregnant (because God believes that “bad” girls must be punished) and flees to Paris where she prettily mopes around and stares at the Eiffel tower and at the Seine. Alternatively she stays in Cape Town and commits suicide by dramatically walking into the ocean, a-la Ingrid Jonker.

The point is, those of us subjected to this script were brought under the strong impression that for an upright member of society – an attorney nogal – to steal money from his clients was a disgracefull and disgustingly dishonest act, exactly because of the trust relationship that was supposed to exist between an attorney and his or her clients. Luckily, puritanical Christian Nationalists no longer rule South Africa, so those of us who speak Afrikaans and have a pale-ish skin no longer have to fear God’s wrath because we enjoy sex or because we believe in equality for all. Neither are we forced to go to church to pray for rain or the defeat of communism and the ANC.

But maybe we have gone a bit overboard in reacting to these bizarre Christian Nationalist values. Surely some of us seem to be far too forgiving of the crooks who steal other people’s money or take bribes – even if the bribe was solicited by Schabir Shaik? We even elect some of those implicated in criminal acts as political leaders. Should we really send a signal that stealing innocent people’s money is something easily forgiven – as long as one is married to the “right” person and has opportunistically aligned oneself to the “right” political faction inside the ANC?

Was it not bad enough that we sullied our democracy by pardoning all those involved in apartheid attrocities? Surely at some point we should start insisting that commiting a crime should disqualify one from being celebrated as an upstanding member of society?

I was wondering about this when I read on Sunday in City Press that President Jacob Zuma had expunged the criminal record of the husband of the acting prosecutions boss, Advocate Nomgcobo Jiba. Zuma’s spokesperson Mac Maharaj confirmed to City Press that former lawyer and Scorpions member Booker Nhantsi’s criminal record for stealing a client’s money from his trust fund was erased in September 2010. Nhantsi, who worked as an attorney before being appointed a deputy director in the Eastern Cape Scorpions, was convicted of theft in the Mthatha High Court in 2005. He had dipped into funds totalling R193 000 held in a trust for a client in 2003. He was sentenced to five years imprisonment, two years of which were suspended for a period of five years.

City Press reports that Jiba is closely associated with Lieutenant-General Richard Mdluli, the “controversial” head of the police crime intelligence unit. (Calling Mdluli controversial is a bit like calling George W Bush controversial for allegedly ordering the torturing and also the killing of thousands of non-Americans, but sometimes we use these euphemisms to keep ourselves sane.)

Mdluli is alleged to have murdered a rival in a love triangle and to have stolen money from a secret crime intelligence slush fund. When Jiba was in some legal difficulties (she was suspended by the NPA in 2007 for allegedly assisting the police to defeat the ends of justice by countering the Scorpions’ investigation of former police chief Jackie Selebi), Mdluli assisted her by making an affidavit in Jiba’s favour that supported the notion of a conspiracy against Selebi. (Zuma and his inner circle seem to really take all this talk of conspiracies rather seriously.)

Now the slush fund that Mdluli is alleged to have corruptly misused is the same slush fund that City Press claims was used to pay for renovations of almost R200 000 to Police Minister Nathi Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. The newspaper claims that these allegations were contained in a top-secret police report that was handed to acting police chief Lieutenant General Nhlanhla Mkhwanazi last month, which names Mthethwa in the Hawks’ investigation into the plundering of the R200 million secret service account. City Press speculated that Mthethwa had ordered an end to the Hawks probe because of his involvement in the scandal.

Mthethwa denied these charges, claiming that the “minister is the political executive of the SAPS and as such does not get involved in operational matters.” This claim of non-involvement in operational matters was directly contradicted by Hawks spokesman McIntosh Polela who conceded that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. Someone seems to be lying about something here.

But back to the tawdry pardoning of (now) former criminal, Booker Nhantsi. Could he have been pardoned by President Zuma because he happens to be on the “right” side of the internal factional fight? Was it done to keep the acting NPA boss sweet to ensure that the criminal charges against Zuma will never be resurrected? And what does this pardoning say about the moral compass of our President? Surely it reinforces the perception that our President does not have a moral compass at all and that he is not one to let small detail like criminality stand in the way of loyalty and protection of his own interests of staying out of jail.

Now, it must be said that the President has the constitutional power to pardon any criminal in terms of section 84(2)(j) of the Constitution. However, the Constitutional Court has said in the Hugo case many years ago that the exercise of this power can be reviewed. Where the President pardoned an individual he is at the very least required to exercise that power in good faith.

If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

The Constitutional Court confirmed this view in the Albutt case where it found that the pardoning of a group of apartheid era prisoners with the aim of effecting reconciliation was unconstitutional because the victims of the apartheid era crimes were not consulted by the President before the decision to pardon the prisoners were taken. In that case the Court stated (and this might well come as something of a surprise or even a shock to President Jacob Zuma and some of his advisors) that:

It is by now axiomatic that the exercise of all public power must comply with the Constitution, which is the supreme law, and the doctrine of legality, which is part of the rule of law. More recently, and in the context of section 84(2)(j), we held that although there is no right to be pardoned, an applicant seeking pardon has a right to have his application “considered and decided upon rationally, in good faith, [and] in accordance with the principle of legality”. It follows therefore that the exercise of the power to grant pardon must be rationally related to the purpose sought to be achieved by the exercise of it.

When asked about the reasons behind this seemingly unethical but possibly politically expedient pardon, Mac Maharaj made the following statement:

A pardon is an act of mercy by the president if the president is convinced that it is in the public interest for a pardon to be granted. In Nhantsi’s case, he was convicted of the offence of theft, which was his first and only offence. He had also served his sentence. Nhantsi is also a qualified and skilled individual who can make a contribution to society. He was therefore pardoned accordingly.

These reasons could, of course, apply to many other people who have been convicted of crimes of dishonesty (many of whom, including Schabir Shaik, who have not been pardoned by the President), but in the absence of any proof of a bribe being paid to effect the pardon or of other bad faith factors playing a role in the pardon, one will have to conclude that the pardon – although politically scandalous and unethical - was not unlawful. (I know this distinction is not one that some politicians and some supporters of the President care to make.)

Finally, in this fog of allegations, denials and counter-allegations, this pardoning of a former dishonest thief who happens to be in the “right” political faction inside the ANC (and whose wife is in a position to decide on whether to revive criminal charges against President Zuma), will further enhance the perception that our President is at least ethically (if not legally) tainted and that he makes decisions based on his personal interests and not based on the interest of the government he leads or of the nation.

But sadly none of those implicated in these unsavoury events will flee to Paris in disgrace. Neither will they beleive that the family or party they belong to was shamed by their actions. Instead they are more likely than not to claim that they have been the victims of a terrible conspiracy concocted by unnamed foreign intelligence services, opponents inside the ANC, Helen Zille, HF Verwoerd and – who knows – James Bond himself.

Watch this space.

Today they come for Malema…..

Apr 4th, 2012

by Pierre De Vos.

194 comments

President Jacob Zuma is not a person who seems to take kindly to criticism (and neither is he someone who can take a joke at his expense). One might even claim that he seems a bit, well, thin skinned (if not, dare I say, dictatorial) in his attitude towards those who say things about him that he does not like. Not that Julius Malema has shown a lot of tolerance towards those within the Youth League who have dared to criticise him or who opposed his leadership at one time or another. In fact, these two leaders, may, ironically, be cut from the same kind of cloth.

A few years ago Zuma announced that he was going to sue Zapiro for R5 million because he claimed the cartoonist had defamed him after the cartoonist had published a cartoon in which he suggested Zuma was violating the justice system to avoid facing fraud and corruption charges.

It therefore comes as no surprise that the National Disciplinary Committee (NDC) of the ANC – ostensibly acting completely independently of President Zuma (yeah right!) – announced this morning that it was temporarily suspending Julius Malema from the ANC with immediate effect. The purported reason for this suspension is that Malema allegedly brought the ANC into disrepute. (Malema had already been expelled from the ANC earlier, but his appeal regarding the expulsion is to be heard only later this month.)

Apparently the ANC as an organisation is brought into disrepute if one of its members criticises the leader of the party in public. (Criticism might be the lifeblood of any democratic culture, but public criticism of leaders has now suddenly become alien to the culture of the ANC – at least if that criticism is levelled at President Zuma.) How any political party can remain democratic and how it can renew itself and correct mistakes, when its members are not allowed to criticise the party leader in public, is unclear. Maybe criticism can be communicated in secret messages with the assistance of the intelligence services?

Of course, this ban on any public criticism of a sitting leader is not based on a principle that was followed by President Zuma and his supporters during his fight with former President Thabo Mbeki. But I guess consistency and an abiding respect for high principles is not really what is in play here. What is at play is President Zuma’s future survival. Remember, he might well believe that he will either get a second term or he will go to jail for 15 years, so (in his eyes) there might not be time for niceties such as respect for democratic debate inside the party.

Malema now faces fresh disciplinary charges, which will obviously lapse once the ANC Appeal Committee confirms Malema’s expulsion – surely only a formality. This is after Malema criticised Zuma on Friday in the following terms:

It is under President Zuma that we have seen the youth of the ANC being traumatised, being expelled from their own home. It is under President Zuma we have seen a critical voice being suppressed We have seen under President Zuma, democracy being replaced with dictatorship. We have seen an intolerance….people, who become impatient with the youth….

The NDC did not say who complained about the utterances made by Malema. It did stipulate the following (once again rather draconian and probably not entirely enforceable) conditions that Malema will be required to comply with during his suspension:

He will not exercise any duty in his capacity as an ANC member, President of the ANC Youth League and/or Member of the Provincial Executive Committee of the ANC Limpopo Province;

He will not attend any meeting of the ANC or any of its structures, including the Leagues, except for the purpose of the NDCA hearing and the pending disciplinary proceedings to be instituted against him.

He will not address any meeting of the ANC or any of its structures, including the Leagues, whether as an invited guest, in his capacity as President of the ANC Youth League and/or as a member of the ANC; and

He will not make any public statement on any matter pertaining to the ANC.

Of course, the first thing to note is that this will bring the clash between the Youth League and the mother body of the ANC to a head, as Malema is forbidden from attending any Youth League meeting, which the League insists can operate free from the discipline of the ANC.

Members of the Youth League Executive (with or without Malema) will now have to decide either to defy this order of the disciplinary committee or face disciplinary charges and expulsion themselves. What happens if they continue arguing that the Youth League Executive members cannot be ordered around by the mother body and cannot say whether Malema should sit on the League’s Executive or not? What if the Executive continues meeting with Malema as its President? Surely they will all then have to be suspended as well and then ultimately expelled.

President Zuma seems to have learnt well from the “mistakes” of Thabo Mbeki and he is taking no chances with those who might oppose him. Cut off their heads before they can gather steam, seems to be his motto. Whether this is a democratic attitude or closer to the dictatorial style that Malema spoke about, I leave to the judgment of the readers.

Secondly, an order purporting to ban Malema from making any public statements on any matter pertaining to the ANC infringes on Malema’s right to freedom of expression. Our Bill of Rights can also bind private individuals, organisations and political parties and I am almost certain that when an organisation bans a member from making any statements about that organisation in public that organisation is in breach of the Bill of Rights. For this reason, the probably unconstitutional censoring of Malema by the NDC seems troubling, to say the least.

A further irony is of course that this immediate suspension and the draconian (and partially unconstitutional) nature of the “conditions” imposed on Malema during this latest suspension nicely seems to illustrate the point Malema was making in his speech about the intolerance of Zuma to dissent and the inability of the leadership to listen to and accept criticism of ANC leaders and policies.

By making these points I am not arguing that Malema was wise to make the statements that got him into trouble today. Neither am I claiming that I believe Malema is an eternal democrat who is saying these things because he really has the best interests of the ANC at heart. Yet, as I warned before, one must be careful to cheer on this silencing of debate and dissent inside the ANC merely because the person being silenced is someone with whose views one does not agree and whose downfall one might applaud.

Today they come for Malema. Tomorrow they might come for you or me.

On self-serving and untrue criticisms of the judiciary

Apr 4th, 2012

by Pierre De Vos.

9 comments

When US President Barack Obama on Tuesday said that he was confident that the US Supreme Court would not overturn parts or all of his signature health care legislation, some South Africans who blindly repeat the self-serving but blatantly untrue claims of their preferred leaders, might have been tempted to shout: “We told you so.”

If Obama can implicitly criticise the judges of the US Supreme Court, why can’t President Zuma say that he wants to review the powers of the Constitutional Court? Why can’t Gwede Mantashe say that our judges threaten the stability of the country and act in their own self-interest because they are hostile to the ANC-led executive? Why can’t Ngoako Ramathlodi say that because of the Constitution “the black majority enjoys empty political power while forces against change reign supreme in the economy, judiciary, public opinion and civil society”? Why can’t he say that the courts in our judiciary “the forces against change still hold relative hegemony”?

They may be emboldened by this line of reasoning if they read the column by liberal New York Times columnist Maureen Dowd who lashed out at the five right wing judges who form a majority on the nine-member US Supreme Court in the following manner:

This court, cosseted behind white marble pillars, out of reach of TV, accountable to no one once they give the last word, is well on its way to becoming one of the most divisive in modern American history. It has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes. All the fancy diplomas of the conservative majority cannot disguise the fact that its reasoning on the most important decisions affecting Americans seems shaped more by a political handbook than a legal brief.

But this possible shadenfreude by South African critics of the Constitutional Court would be unjustified and more than a tinge dishonest. Very few people argue that judges and the decisions they make should never be criticised – even in harsh terms. I myself have often criticised various judgments of the Constitutional Court as well as many judgments delivered by judges in other courts in South Africa. Criticism of judgments of the judiciary is not the issue. For example, a critical analysis of the Constitutional Court judgment which refused to hear the Hlophe appeal would be potentially valuable. I for one would engage vigorously with such a critical analysis and will try to demolish any kind of argument put up (which, I believe, would not be too difficult to do).

This kind of criticism of judicial decisions is par for the course for any academic.

What we object to is the conservative attacks on the judiciary masquerading as radical concern for transformation. Some of us take issue with Jacob Zuma, Gwede Mantashe, Ngoako Ramathlodi and others, not because they criticise court judgments or because they attack specific judges (based on the conservative or even reactionary judgments handed down by those judges). We take issue with these self-serving and undemocratic attacks, first, because the attacks on the judiciary (the Constitutional Court, in particular) and on specific judges are not based on fact at all and are mostly based on, (how shall I put this nicely), an adventurous and creative engagement with the truth.

It is not as if the Constitutional Court cannot and should not be criticised. But then it should be based on the judgments of that court and the reasoning employed in the specific judgements of that court by an individual judge.

I have yet to see any critic of that court explaining which judgments exactly demonstrate that the Constitutional Court is hostile to the ANC or that it opposes transformation.

Can it be the judgment in which the court found that search warrants in the Zuma case were valid? No, that case dealt a blow to Jacob Zuma’s attempts to stay out of jail, but obviously had nothing to do with transformation.

Can it be the judgment that declared invalid the law on which President Zuma relied when he extended the term of office of the former Chief Justice? No luck there either, as that judgment was based on a protection of the separation of powers and the independence of the judiciary (which the ANC says it will defend to the bitter end), so that judgment was actually pro-ANC.

Was it the judgment which invalidated the government’s HIV mother to child transmission policy? No, that judgment promoted the well-being of poor and vulnerable women and their children.

And what judgment exactly threatened the stability of the country? Not one judgment comes to mind or has ever been mentioned by the critics of the Constitutional Court.

But there is a second reason why most of these attacks on the judiciary and the Constitutional Court are not just wrong, but also dangerous. They often seem to come from a deeply reactionary and undemocratic place. What is being objected to is not the politics or ideology of a specific Constitutional Court judgment or whether the judgment is pro-transformation or anti-transformation (after all, if that was the issue, the current Chief Justice – the most conservative member on that court – would never have been appointed by President Zuma).

Instead, the aim of those who attack the Constitutional Court often seems to be to create a scapegoat for the governance failures of the government. Without ever being able to name one Constitutional Court judgment which has stopped textbooks from being delivered to a school, which has stopped the government from replacing mud schools with brick and mortar schools, which has stopped the government from taking back control of schools from the out of control labour unions, attackers claim that it is the fault of the Constitutional Court that for some people little has changed in South Africa since 1994.

But it was not the Constitutional Court that imposed the GEAR policy on the government; that imposed a willing-buyer willing-seller land reform policy on the government; that forced the government to buy R40 billion worth of arms; that forced the government Ministers to stay at the Mount Nelson and buy million Rand cars. No, that was our government who did this all by itself.

So, by all means, criticise the judgments of the Constitutional Court, but be honest when you do so. Do not hide behind vague and untrue claims about the evil courts to try and justify the failures of the government. Do not attack the supremacy of the Constitution – as if this supremacy is to blame for the many “challenges” of government. Be honest about your motives for criticising a judgment. For example, why not come right out and say that the decision by the Supreme Court of Appeal (SCA) nullifying the appointment of Menzi Simelane, has nothing to do with fears of stifling transformation and everything to do with fears that an independent person will be appointed as National Director of Public Prosecutions who will not block the prosecution of well-connected politicians.

Selling horse droppings as figs

Apr 2nd, 2012

by Pierre De Vos.

36 comments

In Afrikaans we have a striking saying describing rather accurately what the keepers of secrets (yes, the spies and double agents and professional liars in the intelligence agencies) are trying to do with its latest range of advertisements promoting the Secrecy Bill: “Hulle will ons nou wysmaak dat perdedrolle, vye is”. (“Now they want to convince us that horse droppings are really figs.”)

Apart from the fact that the government is not supposed to promote a Bill currently still serving before Parliament and not yet passed into law (as Parliament is currently seized of this matter, and the executive has no truck with the Bill until it is actually passed and becomes law), the advertisements are about as honest and truthful as your average Senior Manager at the Department of Public Works testifying at the Bheki Cele Inquiry.

I focus on the English version, which can be played via YouTube:

The text of the advert is as follows:

Female Voice: “Are you following the whole debate about this new law everyone is talking about? Something about state information?”

Male Voice: “Yes. And I see why government worries. All this stuff about identity theft, people being long dead but collecting pensions, the list is endless.”

Female Voice: “But what about corruption? How will the government deal with that?”

Male Voice: “The bill makes it clear that if people try to cover up corruption they will go to jail for up to 15 years, and whistleblowers will be protected.”

Female Voice: “That’s good. But will we still be able to get the information we need from the government?”

Male Voice: “Yes. Our constitution gives us that right. As for the press, the bill doesn’t suppress press freedom at all. When you want information that is classified, you just have to apply for it. If you are still not happy, you can go to court and the judge will decide if it is in everyone’s interest.”

Female Voice: “Yes, sounds reasonable.”

Male Voice: “The thing is that government has to protect its information from criminals. There are spies out there that want to steal our information to develop their own countries at our expense.”

Female Voice: “I see. I want to familiarise myself with the bill more. There’s so much I didn’t know.”

Male Voice: “Great, ‘cause it’s really important that government protects its information. It is about protecting our country and its hard-won freedom. Ensuring that we all live in peace, security and prosperity.”

The thing is, the Secrecy Bill has absolutely nothing to do with identity theft and neither has it anything to do with people fraudulently collecting pensions if they are not entitled to do so. Although section 8 and 9 of the Secrecy Bill deals with the protection of valuable information (which could include personal information about one’s ID held by the state), and although these sections state that such information warrants “a degree of protection and administrative control and must be handled with due care and only in accordance with authorised procedures”, the Bill does not actually criminalise the selling of your ID by a state official and is in no way dealing with identity theft. What a very small part of the Bill does (about 4 of the more than 50 clauses in the Bill) is that it prohibits any person from unlawfully and intentionally destroying, removing, altering or erasing valuable information.

A state official would therefore be punished in terms of this Bill if he or she deleted your ID information from the government database. What the Bill would not deal with at all is identity theft or pension fraud. The law already punishes fraudulent selling of your ID information to others as well as pension fraud, and this Bill has absolutely nothing to do with that. In other words this advert is deceitful and dishonest. This is perhaps not surprising, as the adverts were cooked up by the very spies who, we are told, we should trust with decisions about the need to classify state documents as secret or top secret. I would not trust these people when they tell me what the weather will be like tomorrow – let alone with these decisions that may well hide serious criminality and corruption. (General Mdluli, are you there?)

Ironically, what the adverts do, is to illustrate beyond all doubt why this Bill is so dangerous. If these people are prepared to deceive the public so blatantly and openly, why would they not lie to us about the existence of wrongly and unlawfully classified documents which we might need to get access to in order to expose corruption or in order to expose the blatant flouting of the law and undermining of our democracy by the intelligence services?

The “safeguards” in the Bill which the advert talks about are therefore illusory. If it is a criminal offense to be in possession of a classified document, and if one tries to get access to a wrongly classified document, the spies will merely claim that the document does not exist, finish en klaar. If one then claims to have seen the document, one will be arrested and charged for possessing a classified document and to admitting to having committed a crime and one could be sentenced to a long period in jail for possessing even an illegally classified document.

It is true that section 43 of the Bill states that a person who is protected by the Protected Disclosures Act may disclose documents despite any provisions in the Bill, which means that a very brave (some would say very stupid) state employee who discovers documents demonstrating criminal activity or corruption by the intelligence services, may leak such documents to, say, the Public Protector.

What the advert does not say is that the Public Protector will then immediately have to take the leaked documents showing serious criminal activity to the nearest Police Station where one of Richard Mdluli’s cronies will be able to receive the document and “deal” with it to protect the intelligence services and those exposed as criminals or crooks in the documents. The Public Protector can then try and get access to the document via various means and after several years – and assuming rather optimistically – that the document had not been “lost” (in other words, destroyed), she might finally get access to that document – long after the crime was committed and the cover up effectively instituted, the witnesses “disappeared” or intimidated into silence or packed off to Tjikitjikistan as the undersecretary of culture.

Moreover, the advert seems to suggest that all active citizens are really no more than potential criminals, suggesting how the paranoid spies view us ordinary citizens. It says that the state has to protect its information from criminals, but it is exactly the kinds of information that we need as citizens that we will be “protected” from accessing. We will not ever again be able to know that intelligence services had concocted another Browse Mole Report to discredit the enemies of the sitting President. We will not ever again be able to know that the spies had taped telephone conversations between politicians or between NPA members. We will not know that senior ANC leaders have been spied on by the intelligence services because the President thought that these leaders might pose a threat to his political ambitions.

Of course, the adverts also display the kind of paranoia that is familiar to students of any fascist police state. Hence it suggests that we need to protect state secrets because if any of these secrets held by the state are ever released, our very freedom (the freedom curtailed by this Bill) will be threatened. Now, I for one cannot imagine what secrets the spies are keeping that are so earthshattering that it would threaten the very life of our nation and our Constitution if it were to be made public. Could it be information about financial donations made by foreign dictators to the President or the governing party? Information about the sex-lives of politicians illegally spied upon by the intelligence services on instructions from the President? Maybe there are documents proving that our spies are plotting to assassinate the President of the United States, which, if revealed, could lead to a US military invasion.

But I doubt that any of these documents exist and even if they did, we will be protected by its disclosure (and disclosure of the unlawful actions by the intelligence services who might have compiled these documents illegally), not by keeping them secret.

This Bill is about protecting the intelligence services and drawing a veil of secrecy over their often unlawful activities in order to enhance the powers of the spies, create a police state within a state and protect the leadership of the incumbent faction inside the ANC from embarrassment and from being ousted in quasi-democratic party elections. It is not about freedom but un-freedom, not about democracy but a threat to our democracy.

If you believe otherwise, I am sure you will also believe me when I say that you should please send me all your banking details (including password) immediately so that I can transfer a few million dollars into your account, which I will do because I need your assistance with transferring fabulous amounts of money into South Africa.

A worrying attack on the Rule of Law

Mar 22nd, 2012

by Pierre De Vos.

78 comments

The decision of the Supreme Court of Appeal (SCA) on Tuesday in the Jacob Zuma case, must come as a political – but not yet as much of a legal – blow to President Jacob Zuma. Coming just as the unofficial succession debate is hotting up, this judgment will provide some ammunition to President Zuma’s opponents inside the ANC as it will remind party activist and ordinary voters alike that Zuma had a corruption case to answer, that his financial advisor was convicted of bribing him but that he never got his day in court to clear his name.

It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

The continued attempt by the DA to use the Courts to undermine and paralyse government.

The granting of blanket permission to political parties to can review any State decisions, using Courts.

How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

On “bribery” scandals and intelligence services

Mar 12th, 2012

by Pierre De Vos.

38 comments

Around the time when former President Thabo Mbeki fired the director-general of National Intelligence Agency, Billy Masetlha, a visibly angry Mbeki accused some of his intelligence agents of “manufacturing intelligence” and lying to him merely to please him. “The president as head of state and head of government is the principal client of civilian intelligence,” Mbeki fumed. “Now you can imagine what would happen if the president is fed false information”.

Masetlha, in court papers, called Mbeki a liar in return but lost that battle when his dismissal was confirmed by the Constitutional Court.

Masetlha was blamed for authorising the unlawful surveillance of ANC executive and businessman Saki Macozoma under the pretext that he was involved with foreign intelligence; for being involved in the fabrication of the e-mails that purport to implicate senior government and ANC officials in a plot to side-line and incriminate embattled former deputy president Jacob Zuma; for being highly involved in party political squabbles by colluding with politicians in the divisive succession battle that, at the time, was polarising the ruling party between Mbeki and Zuma camps; and for acting unlawfully in bugging and intercepting individuals’ communications for the same purpose, which could have contributed to the fabrication of the e-mails.

Later it transpired that the intelligence services were bugging the phones of various former and current law enforcement agents, including Bulelani Ngcuka and Leonard McCarthy (we were told this was done legally but no hard proof was ever provided for this claim), which tapes were then mysteriously leaked to the current President and his lawyers and was then used to justify the politically inspired dropping of criminal charges against the President.

Around the same time the Review Commission on Intelligence, chaired by former Deputy Minister Joe Matthews, found that intelligence services regularly infringed on the right to privacy through intrusive methods that are unconstitutional. For example, it found that the NCC, which intercepts electronic signals such as cell phone conversations, is engaged in eavesdropping that is unconstitutional and unlawful. This is because the centre fails to comply with the requirements of the Regulation of Interception of Communications and Provision of Communication-Related Information Act of 2002, which prohibits the interception of communication without judicial authorisation.

More recently news reports suggested that several high profile appointees in the intelligence services have resigned after clashes with the Minister of State Security, allegedly in part sparked by disagreements with the Minister about the unlawful misuse of the intelligence services to spy on political opponents of the ruling Jacob Zuma-factions within the governing ANC.

In the intelligence world, a world filled with subterfuge, lies and counter-lies, misinformation and secrets, it is never easy to know which side is talking the truth. But surely all these stories do create a picture of a highly politicised set of South African spy agencies who have, for the past several years, been involved in illegal activity – some of it relating to succession battles inside the ANC.

It is not as if they have not had access to lots of scandalous or suspicious facts (not fabrications) about the political opponents they were targeting for being on the “wrong” side of the ANC factional battles. Zuma was bribed by Schabir Shaik, there were some very ambitious and greedy people who were not happy with Mbeki’s leadership of the ANC, Zuma did have sex with the daughter of an old struggle friend and for undisclosed reasons he did visit Angola and Libya when his legal and political troubles started, former NPA boss Bulelani Ngcuka did chat to the head of the Scorpions about the timing of laying corruption charges against Zuma.

But the fact that the intelligence services were involved in collecting and then, in some cases, leaking this information must surely have had everything to do with them taking sides in the succession battles inside the ANC and absolutely nothing to do with protecting the security of the state.

These facts came back to me when I read the front page story in the Sunday Times yesterday, which reported that Deputy President Kgalema Motlanthe’s partner, Gugu Mtshali, has been implicated in soliciting a R104-million “bribe” to obtain government support for a South African company trying to clinch a R2-billion sanctions-busting deal with Iran. My interest was further piqued by the revelation in the story that the Sunday Times had access to recordings of confidential discussions when the “bribe” was solicited as well as of confidential documents (which was “understood to have also been obtained and analysed by US intelligence agencies”).

Who made these recordings? On whose instructions were they made? Were South African intelligence operates involved? How did the US intelligence obtain the material (or was this a red-herring provided by those who leaked the story)? Why has this information been leaked now, so soon after President Zuma has managed to dispense with his other opponent, Julius Malema? Is it a co-incidence that Kgalema Motlanthe is seen by many is the most credible opponent to face President Jacob Zuma at the party’s election later this year at Mangaung?

Of course if the intelligence services were in any way involved in a smear campaign against the Deputy President (and as always, smear campaigns work best when there is real dirt to smear somebody with), it would suggest that they are firmly in the Zuma camp and that they are prepared to abuse their power to secure another term for their “boss”.

If the Secrecy Bill had been in place it would have been impossible ever to find out whether the intelligence services were involved in this or not. This is because the Bill would prohibit anyone from leaking any information about their involvement (unless that person wanted to spend between 10 and 25 years in jail) in such a case. It would literally pull a veil of secrecy over the work done by the intelligence services and would make it impossible to know or reveal whether they are involved in anti-democratic smear campaigns against the political opponent of the President (or whomever is in control of the intelligence services).

It might be that this information came out now because one of the parties involved in the “bribe” is unhappy because the deal eventually fell flat. But attempting to bribe somebody is already a criminal offense, so it would be very stupid for such a person to leak information to a newspaper about his own criminal activity – unless he is pretty sure that he will be protected, either because he was involved as an agent of the intelligence service from the start as part of a sting operation, or because he knows that the various security services will protect him because this was cleared out with somebody high up in the Zuma camp.

Which just goes to show: there might well be good reasons (apart from taking a principled stand) why Kgalema Motlanthe and other leaders of the ANC are reportedly opposed to aspects of the Secrecy Bill. They might well be worried that when this Bill is passed, the dirty tricks by the intelligence services against anyone who opposes the dominant clique inside the party will be stepped up and that it will become impossible ever to reveal such dirty tricks without facing a very long prison sentence.

And once the out of control intelligence services are protected by the Secrecy Bill, one will only be able freely to take bribes and be corrupt without fear of prosecution or exposure, if one remained a loyal supporter of the political leader who happens to be in charge of the intelligence services. And what a nuisance that would be.

Jacob Zuma

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On the President, his penis, and bizarre attempts to censor a work of art

What will happen to Minister Mthethwa?

What will we learn from NPA record on Zuma prosecution?

Pardoning criminals not such a good idea, Mr President

Today they come for Malema…..

On self-serving and untrue criticisms of the judiciary

Selling horse droppings as figs

A worrying attack on the Rule of Law

On “bribery” scandals and intelligence services

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