It could not have hurt that the verdict was delivered by a confident and in charge Cyril Ramaphosa, who reminded us again why so many of us have regretted the fact that he lost out to Thabo Mbeki when Mandela’s ANC had to appoint a Deputy President and why some of us still wistfully wonder what might have been if he had become our President instead of either Thabo Mbeki or Jacob Zuma.

Although some newspaper editors might miss Malema (given the fact that he has the ability to make news and sell newspapers), most of us might feel slightly relieved that this hypocritical demagogue has been dealt with so effectively and seemingly so decisively by the ANC senior leadership.

Yet, there is something about the way in which Jacob Zuma and Gwede Mantashe managed to clip Malema’s wings that sits uneasy with me. If they could do it to him, I wonder, could they do it to anyone else – including every single one of us who are members of the chattering classes and sometimes mock or criticise our dancing and singing President and every single ANC member who fails to toe the party line or who speaks out against the abuse of power or incompetence by some members of the leadership?

Is there not just a whiff of Stalinism about the way in which Zuma and Matashe got rid of a political enemy? Can we expect the pictures to be airbrushed next so that Malema will disappear completely from official ANC history?

Recall that Malema was convicted on three charges, two of them having been confirmed by the NDCA. First, he was convicted of contravening Rule 25.5 (1) of the ANC Constitution “by behaving in such a way as to provoke serious divisions or a breakdown of unity in the organisation”. His sin was that he addressed a press conference on 31 July 2011 at the conclusion of an ANC Youth League NEC meeting where he said amongst other things “in the past we know President Mbeki used that agenda very well …. The African agenda is no longer a priority and we think that there is a temptation by the coloniser and the imperialist to want to recolonise Africa in a different but sophisticated way and President Mbeki stood directly opposed to that type of conduct.”

The NDC found that through his utterances Malema sought to portray the ANC government and its leadership under President Zuma in a negative light which therefore had the potential to sow division and disunity in the ANC. The NDCA confirmed the reasoning of the NDC. The implications of this verdict are rather stark. Any ANC member who now suggests that an out of favour former President may have done some good and that he might have been better than an incumbent leader can now be kicked out of the Party for contravening Rule 25.5(1). If this principle had been applied consistently in the past, Mbeki would have been able to get rid of Zuma and most of his opponents long before the votes were counted at Polokwane. To his credit, he never used such tactics against them.

The verdict comes perilously close to suggesting that no ANC member will henceforth be allowed ever to criticise the incumbent ANC leadership in public. This is a rather handy precedent to set if one intends to stand for a second (or third) term in office or if one wishes to “manage” future leadership elections. To my mind the ruling on this point seems profoundly undemocratic and deeply dangerous and both ANC members and other members of the public should feel more than a bit worried about this move. One should not confuse approval for the outcome of this case (silencing Malema) with what is good for the ANC and South Africa and if one does, one underestimates the possible ruthlessness of the current bunch of ANC leaders aiming to secure a second term for themselves at Mangaung.

Malema was also convicted of contravening Rule 25.5 (c) of the Constitution of the ANC by behaving in such a way as to bring the organisation into disrepute. This was done for ostensibly slightly more plausible reasons, namely because he addressed a press conference on 31 July 2011 by making announcements amongst others:

• That the Botswana leadership of government poses a serious threat to Africa so we need a progressive government in Botswana;
• We are not going to sit with neighbours that conduct themselves like that. Botswana is in full co-operation with imperialists and the government is undermining the African agenda;
• The ANC Youth League would establish a Botswana Command Team which would work towards uniting all opposition forces in Botswana to oppose the puppet regime of Botswana led by the Botswana Democratic Party.

Now, imagine, for a moment that the statement did not relate to Botswana but to Zimbabwe and that Zwelenzima Vavi had made it and not Malema. Imagine Vavi had said that Robert Mugabe and his Zanu-PF had ruined Zimbabwe and that Cosatu would mobilise ANC members to oppose the murderous regime in Zimbabwe and to unite opposition forces in that country to try and oust Mugabe. If the Zuma and Mantashe had then proceeded to discipline Vavi and if he was then suspended from the ANC, would we all be cheering this on as we are doing with the Malema case?

Surely ordinary ANC members (yes, also those who helped to get rid of Thabo Mbeki at Polokwane, ostensibly because of his dictatorial tendencies) should feel more than a bit uncomfortable by the manner in which Malema had been dealt with? I ask again: will there be other casualties and will the same principles be used to get rid of other opponents who do not shut up? Will they go after Matthews Phosa? Will they go after Kgalema Motlanthe if he ever grew a backbone and actually indicated that he was interested in presidency of the ANC? Will they go after our charming, but arch-opportunist, Tokyo Sexwale, for showing rather too much ambition?

And should this not all be read against the background of the pending suspension of a senior NPA prosecutor, reportedly because she refused to drop charges against crime intelligence boss Richard Mdluli who is said to enjoy protection from “right at the top”? Remember that last year a secret report prepared by Mduli was leaked to the newspaper and that this report claimed that various ANC leaders met in January 2010 in Estcourt, KwaZulu-Natal to plot the ouster of Jacob Zuma. (Why crime intelligence was involved in such a story is unclear as it is perfectly legal in a democracy for political contenders within a party to plot against each other – as long as they use only legal means.)

Key members of the group that is said to have met are KwaZulu-Natal provincial premier Zweli Mkhize and Human Settlements Minister Tokyo Sexwale.

Remember also that the Secrecy Bill has just as much if not more to do with attempts by the intelligence agencies (firmly under the control of Zuma and Mantashe) to protect their agents and to prevent any exposure of their – legal or illegal – activities which we now know (thanks to Mduli) also focus on the succession race inside the ANC.

It might be that Malema is a special case and that the extraordinary precedent set by this disciplinary case against Malema will not be used against other critics of the current ANC leadership or against anyone who dares to show any ambition to take over the job of President or Secretary General of the ANC. But do not count on it.

If I have time in the next few days, I will critique former President Mbeki’s latest attempt at justifying his flirtation with Aids denialism and his unique interpretation of Muammar Gadaffi’s “peaceful” nature.  Recall for the time being that Gadaffi had warned Libyans rising up against his rule (people he called “rats and cats”, who were “drugged cockroaches”),  to hand over  weapons or “we will announce the holy march, I will call on millions from one desert to another to cleanse Libya house by house…”

But today I wish to raise an interesting point of constitutional law. Although it is never going to happen, I have been asked what would the legal position be if Thabo Mbeki is re-elected as ANC President at the end of the year. Would he be able to return as President of the country, given the fact that he never served a full second term as President?

Section 88(2) of the Constitution states that no person may hold office as President for more than two terms. The section does not say that a President cannot serve more than two consecutive terms, which means the Putin option is not available to a South African President who has served two full terms. A President can therefore not serve two terms, then do something else for five years, only to return to serve as the President for another 10 years after that.

But here is where things get murky. The ban on serving more than two terms as President is qualified by a sub-clause contained in section 88(2), which states that when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term. Where a President is therefore elected as President after a general election, but then resigns or is fired by the National Assembly and is replaced by another President, the new President will serve the rest of the five year term without that part of the term counting as one of his two terms in terms of section 88(2).

This means that although Kgalema Motlanthe served as President after the removal of Mbeki, he did so to fill a vacancy in the office of the President and he would thus still be able to serve two full terms as President — were he ever to be elected as President of the ANC.

Although Mbeki did not serve a full second term, the wording of section 88(2) seems to be rather specific and does not allow a President who was elected after a general election and was then removed as President during his second term or resigned as President during his second term, to serve another (in effect, third) term later on.

There is a good reason for this. A President is not directly elected, but is rather elected by the members of the National Assembly. In terms of section 102(2) of the Constitution, the majority of members of the National Assembly can also fire a President and his or her cabinet for any reason they wish. For example, they can fire an aloof President who had lost the election for the ANC leadership — as they would have done with Mbeki if he had not resigned after being “recalled” by the ANC.

The majority party in the National Assembly can therefore dictate who must serve as President and had section 88(2) been phrased differently, the leader of that party would have been able to manipulate the support of his party MP’s to hold on to the Presidency indefinitely by a bit of crookery. If section 88(2) had provided that a President who had resigned before the end of his or her term would be assumed not to have served a term as President for the purposes of section 88, it would have opened the door for a President to serve for as long as his party wished him to serve as President.

All that a serving President would have had to do to achieve this, would have been to resign one month before the end of his or her second term — only to be re-elected for another “second” term after the next election. This is why section 88(2) disregards the part of a Presidential term served by a President taking over from an elected President during the five year life of a Parliament, but does not allow a President elected right after an election to discount his or her term served if he or she resigned or was fired before the expiry of a second term. However, the system can still be tricked, as a President who wished to serve more than two terms and who planned ahead could have another person elected as Presdident after the general election, only to replace that President after a month or two. This would, however, require blind support from his or her party and some foresight.

All this means that Mbeki can never serve as President of the country again — unless the Constitution is amended. This seems very unlikely, not only because the ANC would probably not agree to it, but also because the party does not have a two-thirds majority in Parliament (unlike in the days of Mbeki) and would probably not be able to persuade smaller parties to support such an amendment.

This does not mean, of course, that theoretically speaking, Mbeki could not be re-elected as President of the ANC. The ANC Constitution does not prohibit this. Neither does the Constitution require the President of the country also to be the leader of the majority party in Parliament (a situation that seems to differ from that of the Leader of the Opposition).

Of course, where the President of the majority party does not serve as President of the country (even when he or she is entitled to do so), the authority of the President and his or her executive may well be fatally compromised and the constitutional system may well take severe strain. In such a situation, the danger is that very little real power will be exercised within the formal constitutional structures like the Presidency and the executive. As we all know after the firing of Mbeki, it is the President of the majority party and the other leaders of the majority party who decide who serves as President, then instructs the members of the National Assembly to elect or fire whomever is necessary to give effect to this decision.

This situation will aggravate a problem that is inherent in our constitutional design. Although the President is supposedly accountable to Parliament and is elected and can be fired by the Assembly, in reality the President is accountable only to his or her political party and it’s leadership, who can decide who serves in Parliament and can also fire the members of their party as members of Parliament if they refuse to follow instructions from the party leadership. Where a President is not the leader of his or her party, the party will almost certainly try to remote-control the President and this might well lead to a further conflation of the ruling party, constitutional institutions like the Presidency, and the state.

This is also why I am no great fan of the current DA arrangement where its leader serves as the Premier of a province and a member of the Assembly is elected by the party to serve as Leader of the Opposition. Section 57(2)(d) of the Constitution states that the rules of the National Assembly must provide for “the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”.

Helen Zille is the “leader of the largest opposition party in the Assembly”, yet Lindiwe Mazibuko serves as Leader of the Opposition. There are two problems with this. First, it is unclear to what extent Zille controls the Leader of the Opposition (and to what extent she did so with the two previous DA “leaders” who had served as Leader of the Opposition in Parliament). Second, it is far from clear that somebody who is not the leader of the largest opposition party in parliament can serve as Leader of the Opposition at all.

Section 57(2)(d) of the Constitution can be read as prohibiting anyone other than the actual leader of the largest political party in the Assembly serving in the role Mazibuko is serving in. Mazibuko might therefore very well not officially and lawfully be Leader of the Opposition at all as that title and role might well be reserved by the Constitution for the actual leader of the DA – Helen Zille.

In any event, these issues once again remind us that our Constitution has failed to regulate the relationship between political parties and their elected representatives in the legislature and the executives (at both national and provincial levels). This means that the power of the President or of Premiers vis-a-vis that of the leadership of the political parties they lead, will differ widely, depending on how tight a grip the President or a Premier has on his party. Where the President has no grip whatsoever — as seems the case with Jacob Zuma – the party leadership (in the case of the ANC that would often be Gwede Mantashe) will often act as the power behind the throne, but without having to worry about any of the checks and balances built into the constitutional system.

As part of a dramatic clean-up of its finances the province will also disband its existing bid evaluation committees, Health Department spokesperson Sizwe Kupelo confirmed.  According to the Daily Dispatch the shock announcement is a forerunner to further drastic action when heads may roll and resignations are expected. About time, some would say.

Then I read in a Business Day report that Deputy President Kgalema Motlanthe said yesterday (standing in for the rather fatigued President Zuma) that the government could no longer tolerate the current status of Black Economic Empowerment (BEE), which in the past 15 years had benefited a handful of individuals.

 “Only a few benefited again and again from the bounty of black economic empowerment,” he said. The “truly marginalised” — women, the rural poor, workers and the unemployed — were left on the sidelines. It was important to look at BBBEE beyond business deals and shareholding in companies, to include equipping people to run their own businesses. “More must be enrolled in skills training and more should have access to arable land.”

Juxtaposing these reports seems to go to the heart of many of the problems faced by South Africa and by the government of the day. Let’s face it: the government seems to be caught between a rock and a hard place.

On the one hand, there is an ethical, political and constitutional imperative to speed up the racial transformation of all sectors of the economy and society (the state having been thoroughly transformed already). This transformation has not happened in the manner one would have wished. A few well-connected individuals have made billions from government contracts and BEE deals and some others have landed cushy government jobs.

But the vast majority of South Africans have not benefited from so called Broad Based Black Economic Empowerment (BBBEE) or from affirmative action policies – both because of resistance to racial transformation by certain members of the white community and because of greed and nepotism on the part of members of the new, politically well-connected, elite.

On the other hand, there are grave dangers inherent in speeding up this process of transformation – as the lack of service delivery in the state sector clearly shows. Because we are still struggling with the corrosive consequences of apartheid and the Bantu education system, because our post-apartheid education system is not working properly and are not producing enough highly skilled black graduates and technicians, and because a culture of nepotism, corruption, laziness and greed has taken hold among many who see their friends and family unjustifiably benefiting from BEE deals and government contracts without having had to do any work, the speeding up of transformation often has disastrous consequences.

People who are incompetent, lack the necessary experience and skills or the necessary commitment to service delivery, are often appointed to “affirmative action” posts in the civil service because they happen to have family connections or are close to politicians or senior officials.  This leads the kind of mess we now see in the Eastern Cape health department.

Make no mistake (as President Barack Obama likes to say) poor and vulnerable people – like many of the long-suffering citizens of the Eastern Cape who depend on the state health system – suffer most when transformation fails to produce a better life for all. The acknowledgement of our Deputy President that part of the solution is more education and skills training, is therefore a good sign.

At least some in the government (those who have not bought into the tenderpreneurial culture, and the Kebbilism, spouting fake populist slogans while driving around in million Rand cars) understand that given our history and the present state of our education system, there is a tension between the very real need to speed up transformation and the need for effective and efficient service delivery.

The only way to deal with this is to invest financial and human resources into education and training in both the public and the private sector. Teachers who are unable to teach properly should be retrained and those who do well should be rewarded (but for that to happen the government will have to stand up to the South African Democratic Teachers Union, something it is probably too scared to do). Businesses must be forced to invest in training and skills development and ways should be found to punish – rather than reward – the kind of window dressing affirmative action and fronting that some of them engage in.

What we as a society need to do is to agree on some kind of social pact. Some white people who still resist transformation and cannot see that their own interests – along with the interests of their fellow South Africans – depend on the implementation of successful transformation measures, should stop their nonsense and come to the party. We should all confront the explicit or implicit racism that informs the views of such people who often believe deep down that black people are not as capable as whites merely because of the colour of their skins.

But that would not be enough.

Some black people who pretend that there are no skills shortage and that there are no problems with the way in which BEE and affirmative action are sometimes implemented, should face up to these facts and should acknowledge the problems. (Luckily some in the government are already doing so, but they are in a life and death struggle with the tenderpreneurs and Kebbilists who chooses short term personal gain for themselves over long term prosperity for all.)

So why do we not call a truce on this silly debate on affirmative action and BEE and all agree that it is not only an ethical necessity but also an absolute requirement for the long term success of our country? Then we can start to devise ways in which we can implement these policies in a way that will not favour the few greedy Kebbilists, but the majority of us – black and white – who wish to see a prosperous and growing country in which no one goes hungry, everyone has a house and all children (even all the known and unknown children of our President) get a good education that will allow them to reach their full potential.

This settlement to a large extent vindicates Pikoli and others who have maintained that he was fired on spurious grounds. Pikoli was obviously suspended by then President Thabo Mbeki because he failed to follow the unlawful instructions from then Minister of Justice Brigitte Mbandla, who took a few minutes out ohe her busy tea drinking schedule, to order him not to go ahead with the arrest of Jackie Selebi.

Mbeki and Mbandla – as became clear at the Ginwala Inquiry – had a strange view of the constitutional requirement that the NDPP must act without fear, favour or prejudice and wrongly thought that the government had the power to order the NDPP to conduct specific investigations and arrests in a particular manner – something forbidden by the Constitution and not authorised by the NPA Act.

Then President Motlanthe fired Pikoli because – as Pikoli made clear during his testimony in the Selebi trial – he was not willing to be party to the unlawful dropping of charges against Jacob Zuma. Unlike Mokothedi Mpshe, who was somehow ”persuaded” to drop charges against Zuma despite believing that the state has a winnable case against our President, Pikoli had shown during the Selebi standoff with Mbeki that he is a man of principle. 

We will now have to see if Mpshe will be “rewarded” for dropping the charges against the President by being appointed as the permanent head of the NPA or whether President Zuma will appoint one of his other friends to that position. If I was President Zuma I would think twice about appointing Mpshe because he stuffed up the dropping of the charges by plagarising an overturned Hong Kong decision and providing “reasons” for his decision that were so laughable and absent any legal reasoning that even Pinocchio would have been embarrassed to have been associated with the decision.

On the other hand, the case challenging this seemingly unlawful decision by Mpshe is still going ahead, so President Zuma has a vested interest in keeping Mpshe on board and happy and not to upset the man who has done him this very big favour. If Mpshe is not appointed and he throws his toys out of the cot and reveals what happened during the dropping of the charges, it might just reflects very badly on our President, Hulley and others who was party to this obvious political deal, which had very little to do with the law.

But Mpshe does not seem like a strong-willed man who would ever make any waves, so it might well be that President Zuma will decide not appoint Mpshe but will rather appoint a trusted ally to the position of the NDPP.  After all, he will have to be on the safe side in case the challenge to the dropping of charges is successful. Zuma would then need a trusted friend as head of the NDPP to ensure that the charges are made to go away once again.

There is one thing we all know and that that Zuma cannot afford to go to court because there is a wealth of evidence amassed against him and if he has to stand trial it will ruin his reputation. There is also a strong likelihood that he will be convicted and it would be rather awakward to have a President convicted of fraud and corruption.  (Even those who claim that there was some kind of a conspiracy against Zuma knows deep down that our President took money from a crook, did favours for that crook and then lied about it – that is why they have to shout so loudly about the conspiracy in order to take our minds off the elephant in the room.)

Of course we are all feeling a bit awkward to talk about this simple but rather inconvenient fact as Jacob Zuma is now our President and many of us sort of like him (even if he seems indecisive and weak and not the sharpest tool in the shed – compared to Mbeki, at least). It’s a bit like dealing with that alcoholic aunt or that brother in jail: we remember them fondly at family events, but we studiously avoid mentioning THAT.

After all, we feel somehow implicated because it is our family and we are justifying their destructive or illegal behaviour by our support. So better not talk about it in case we have to confront our own complicity in the family scandal.

The judgment in Pikoli v President of the RSA and Others therefore does not really make new law, although it does confirm that Pikoli does have a prima facie case and neatly sets out the requirements for an interim interdict. So here, dear readers, follows a little lesson in the law of interim interdicts.

The aim of an interim interdict is to preserve the status quo pending the final determination of the rights of the parties to pending litigation. As the court in this case reminds us, when considering whether to grant or refuse an interim interdict, the court seeks to protect the integrity of the proceedings in the main case. This case therefore does not involve a final determination of the parties’ rights and Pikoli may either win or lose his case when it is heard in November.

The first requirement for the granting of an interim interdict is that the applicant had to show that he or she has at least a prima facie right to the relief he or she seeks in the main application. In this case, the court assumed that the issue in the main application would turn on the  principle of legality. Did the President act in accordance with section 12(6)(a)(iv) of the NPA Act when he relieved Pikoli from office? That section states that a NDPP can only be removed from office, inter alia, “on account thereof that he or she is no longer a fit and proper person to hold the office concerned”. If Pikoli is indeed still fit and proper, the firing would have breached the principle of legality and would have been unlawful and thus void.

The problem for the President in this case is that according to Dr Ginwala’s report, the government had failed to substantiate any of the grounds upon which they had contended that Pikoli was no longer fit and proper to hold office. Dr Ginwala recommended that Pikoli “be restored to the office of NDPP”.

Despite her positive recommendation, Dr Ginwala in her report made certain adverse findings against Pikoli. Then President Motlanthe concluded that Pikoli’s conduct in relation to national security issues indicates “a clear lack of insight, which by further necessary implication rendered him a person not fit and proper to hold the office of NDPP”. Pikoli disputes the factual basis for this conclusion and the case in November will turn on this issue.

As the court correctly found, if Dr Ginwala’s adverse findings were incorrect, the basis for the President’s conclusion that the applicant is not a fit and proper person falls away. As Pikoli has put forward facts that, on a prima facie basis show that the factual findings were indeed not correct the first requirement for the granting of an interim interdict was met.

Interestingly the judgment is not much impressed with the argument put up on behalf of the President that the President has a constitutional duty to appoint the NDPP and hence, for the court now to interdict him from doing so, will be an unnecessary breach of the principle of the separation of powers. This was an unfortunate argument to have made as it may create the impression that the President does not appreciate his duty always to act in accordance with the law and the Constitution.

The firing of Pikoli was a purported exercise of public power by the President and if this was not authorised by law it would be invalid from the outset. The Court points out that a declaration that the President did not act in terms of the law would merely be a “descriptive of a pre-existing state of affairs”. This means if Pikoli wins his case he will automatically be reinstated unless the courts decides to modify the remedy in any way.

As the law requires all of us to respect the pending legal process and, as far as is reasonably possible, to limit the practical consequences of the challenged action, “in appropriate circumstances … an authority should … halt its actions when it is aware that review proceedings are to be instituted against it. Failure to do so may render the official concerned liable for contempt of court” The separation of powers argument therefore did not hold water as allowing the President now to appoint a new NDPP might ultimately turn out, if Pikoli is successful, to have countenanced the unlawful exercise of public power and it is the task of courts to prevent that from happening.

The second requirement for the granting of an interim interdict is that the applicant has to show that he or she has a reasonable apprehension that he or she will suffer irreparable harm if the interdict is not granted. In this case it was not difficult for the court to find that Pkoli may well suffer such irreparable harm, as a new NDPP would then be in place and it might well convince a court not to order the reinstatement of Pikoli thus severely limiting the remedies available to him.

The third requirement for an interim interdict is that the balance of convenience must favour the granting of the interim interdict. The court had no problem in finding that in this case the balance of convenience clearly favours Pikoli, especially because there was no evidence that the acting appointment that has been in place for nearly two years has caused any practical difficulties.

The fourth requirement for an interim interdict is that the applicant must show that he has no alternative remedy. As conduct inconsistent with the Constitution is void from its inception, Pikoli will automatically be reinstated if the main application succeeds, unless the court makes an order to limit the retrospective effect of its declaration. According to the court, the only effective way to protect the applicant’s right to reinstatement if he succeeds is to grant the interim interdict.

Herewith endeth my little sermon on interim interdicts.

In conclusion, it is clear that Pikoli has a strong case going into his court battle in November because the reasons given for his firing had absolutely nothing to do with the reasons given for his suspension or the reasons given to the Ginwala Inquiry for why Pikoli was supposedly not a fit and proper person. When one fires a person and change one’s story for why one has fired that person several times, it becomes difficult to show that the reasons finally given were in fact true.

Because the Presidency lied about the true reasons for Pikoli’s firing, it is difficult not to conclude that he was not fired because he was no longer a fit and proper person but was indeed fired exactly BECAUSE he was a fit and proper person.

ANC officials – who were clearly taken by surprise – first told journalists that Mbete was not sworn in because if she had been sworn in she would not have been able to act as President in the event of Kgalema Motlanthe not being able to fulfil his duties. This is clearly wrong as section 90 of the Constitution makes clear that when the President is absent or otherwise unable to fulfil his duties as President the Deputy President will act as President.

Later ANC official said that it did not want to create a vacuum in the office of the Deputy President because once sworn in as a member of the fourth Parliament, Mbete would stop being the Deputy President. This is also, how shall I put it, rubbish. Section 94 of the Constitution states that:

When an election of the National Assembly is held, the Cabinet, the Deputy President, Ministers and Deputy Ministers remain competent to function until the person elected President by the next Assembly assumes office.

It could still be argued – not very plausibly – that Kgalema Motlanthe could not be sworn in before Saturday because one cannot be President of the country and a member of the National Assembly at the same time. But the Deputy President must be a member of the National Assembly and in terms of section 94 Mbete would have remained competent to be Deputy President until Saturday.

This means Mbete decided not to be sworn in for other reasons. Could it be that she is not happy that she will be “demoted” from her position as Deputy President? Are we already seeing the first rumblings about positions in the ANC, a full three and a half years before the ANC holds its next conference?

Deputy President Mbete seems to have behaved like a prima donna. Not very disciplined, I would say.

There is no constitutional requirement for Mbete to have been sworn in yesterday. As long as the ANC does not swear in another MP in her place, she will remain eligible to be sworn in as an MP at a future date. If she is not sworn in she cannot become Deputy President and unless the President-elect wishes to use section 91(3)(c) of the Constitution to apoint her to the Cabinet,s he would also have to be sworn in as an MP to serve in the Cabinet.

My guess would be that she is trying to force Mr Zuma to re-appoint her as Deputy President and is making things uncomfortable for the incoming administration as an act of brinkmanship. This does not seem particularly wise as her actions are embarrassing the ANC and the President-elect.

It would be interesting to see what happens when Mr Zuma announces his cabinet. Invariably some ambitious politicians will be disappointed. Will they also do a Ms Mbete or will they fall in line? Never a dull moment in our politics.

]]> http://constitutionallyspeaking.co.za/positions-positions-positions/feed/ 20 http://constitutionallyspeaking.co.za/national-security-then-why-is-the-president-not-stepping-in/ http://constitutionallyspeaking.co.za/national-security-then-why-is-the-president-not-stepping-in/#comments Thu, 19 Feb 2009 12:51:57 +0000 Pierre De Vos http://constitutionallyspeaking.co.za/?p=791 There seems to be stand-off between the high brass of the police and the National Prosecuting Authority (NPA). Newspapers report that the police tapped the phones of the head of the Scorpions to try and ¨get¨ those who were investigating Police Commisioner, Jackie Selebi, then charged the çlead investigator in the Selebi matter, and now the police leadership is refusing to hand over documents needed for the Selebi case to the NPA.

Now this could get ugly. Surely our security is being threatened? Some would even call this a national security issue. Frene Ginwala say, or those ANC members on the ad hoc committee of Parliament who rubber stamped the decision of the President to get rid of Pikoli to ensure he does not charge the President of the ANC.

As the person who is responsible for national security – ostensibly the reason for the firing of Vusi Pikoli – one would have thought that the President would long ago have stepped in to ensure co-operation between these two organisations. Or to put it more bluntly: the President should long ago have taken steps to ensure that the police leadership does not try and derail the investigation against Selebi.

Yet, as far as we know, nothing is being done. Why? I smell a big, fat, stinking rat.

This suggests, first, that Selebi must be a very powerful man who holds some secrets that some in the ANC would rather not want to see revealed. What does Selebi know and who can he implicate? He must have some choice tidbits of scandal on the ANC that would make the Carl Niehaus scandal look like a sunday school picnic. Maybe he and Mendi Msimang – whose wife is being kept on as Minister who does nothing to ensure he does not sing about the ANC finances – should get together for a drink? Maybe they can invite Glen Agliotti….

Second, it shows just how spurious the reasons for Jackie Selebi`s suspension and ultimate firing have been. Surely, if the prosecuting authority and the police are at war with one another and the police leadership is trying to stop the proper investigation of the Police Commisioner who has admitted to being friends – ¨finish and klaar¨- with a mafia type drug lord and underworld kingpin, then sombody really concerned about so called national security would have stepped in.

But we do not hear a peep from the President and the stand-off between these two institutions continue.

Pikoli is now trying to argue before the High Court that ulterior motives animated his firing. Sadly there is no smoking gun here so although his firing was illegal it will not be that easy to prove because it is not easy to prove the real motive of those who claim a different motive

But
for ordinary citizens with at least two brain cells it must be very clear what is going on here. Pikoli was suspended by Mbeki because he wanted to arrest Selebi and now he was fired because the ANC wants to appoint a new NDPP who will find a ¨political solution¨for the Jacob Zuma case.

This in some weird way is understandable, because if Zuma actually has to face his day in court he will be destroyed when all the damaging evidence is brought to light about all the money he received from Shaik and all the favours he did for Shaik in return. Even if he is acquitted, most sane people will not trust him after a trial. So a trial must be stopped at all cost.

I am holding thumbs for Pikoli because as even that party hack Frene Ginwala found he is a man of the highest integrity. No wonder the ANc wants to get rid of him. Here`s a thought – pity Carl Niehaus does not have a law degree or could not have fabricated one as he could then have been appointed as NDPP. He would surely know how to deal with national security in a way that suits the ANC…

This is a sham decision and fortunately for Pikoli and his legal team the report by the ad hoc committee does not do a good job of hiding this.

Section 12(6) of the NPA Act makes clear that the NDPP can only be removed for one of four objectively determinable reasons, one being that he is no longer a fit and proper person to hold the office concerned. A decision by the President to fire Pikoli can therefore only be legally valid if it  has been determined – looking at all the facts – that Pikoli is indeed no longer a fit and proper person. This is not a decision that can be taken on the basis of political considerations. In order to be legally valid, a clear determination has to be made on the facts and these facts must be shown to demonstrate that the NDPP is no longer a fit and proper person.

This would require the President and then Parliament (1) to define what constitutes a fit and proper person and (2) then to show that the NDPP has demonstrated through his actions that he no longer meets the criteria for a fit and proper person. A clear causal link must be established between the criteria set out in (1) and the facts that show the incumbent no longer meets those criteria. Otherwise the decision would be ultra vires and thus invalid and could be overturned by a court of law.

Unfortunately, the report utterly fails to define the criteria for a fit and proper person and thus falls at the first hurdle. It is thus my contention that the decision of the ANC majority is illegal and could very well be overturned. Apart from the breathtaking double standard of the ANC majority, who often talks about the right to be presumed innocent until proven guilty but failed to even pretend to consider such niceties in this case, the report fails to do what the Act requires it to do.

Of course the term “fit and proper” is not defined in the act and there may well be some difference of opinion about what the requirements for a “fit and proper” NDPP might be. It was therefore the task of the ad hoc committee to define what it understood under this term, taking into account the provisions of the Constitution and the NPA Act, before rushing to find that the man who wants to prosecute their boss does not meet the criteria set out in this definition.

So let me assist those honorable members of Parliament and explain how they should have proceeded if they had wanted to act in a legally defensible manner.

The NPA Act must be construed in the light of the Constitution and the words and phrases in it must – if it is reasonable possible to do so – be interpreted to comply with the letter and the spirit of the Constitution. We do know that section 179(4) of the Constitution states that “[n]ational legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. We also know that in the First certification judgment the Constitutional Court found that this phrase guaranteed the independence of the NPA and its boss. We also know that section 9 of the NPA Act states that an NDPP 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”.

Read together, this seems to suggest that in order to be a fit and proper person the NDPP must first be capable and at all times willing to act independently, in other words without fear, favour or prejudice. The NDPP must not buckle under political pressure and should not make decisions regarding the investigation and prosecution of individuals on other than legal considerations and the prosecutions policy. Some would argue that Bulelani Ngcuka was not a fit and proper person because he is alleged to have made a decision not to prosecute Zuma based on exactly such political considerations. No credible allegations of a similar kind have been made against Mr Pikoli, so he clearly meets this criterion.

Second, the NDPP must show the necessary conscientiousness and integrity when doing his job. He must not be lazy, spectacularly careless or act in a dishonest or criminal manner. Given the constitutional guarantee of prosecutorial independence, this cannot mean that the NDPP must always be perfectly correct or must make the correct or wise decision every single time. To interpret the section otherwise would be to give a blank cheque to the President and Parliament to interfere in individual decisions made by the NDPP and even to fire him if they disagreed with the correctness or wisdom of a particular decision he made. Such an interpretation would not be in conformity with the constitutional guarantee of independence of the NDPP.

A general and persistent failure to follow prosecutions policy agreed upon with the Minister of Justice would however meet the threshold and would allow the President to fire the NDPP. It must be remembered that the Minister must formulate such a prosecution policy in concurrence with the NDPP and that this provides the Minister with the power to fulfill his or her constitutional duty to “exercise final responsibility” over the NPA.

At present the prosecutions policy does not require the NDPP to take into account national security when making decisions to investigate or prosecute individuals. The policy might well have to be amended to include such a provision, provided that the term “national security” is defined with sufficient precision and safeguards are included in the policy to ensure that such a clause does not give the Minister or the President unconstitutionally broad powers to interfere with the work of the NDPP. Fact is, at present there is no such policy and even if it could be shown that Mr Pikoli was not sensitive enough to national security issues, legally the prosecuting policy did not require him to do so.

In any event, even if the prosecutions policy did mention national security, on the facts before us it is clear that Mr Pikoli’s actions regarding the arrest of Police Commissioner Jackie Selebi do not warrant a finding that he was insensitive to national security. This is because the President has a constitutional duty to uphold the Constitution and also to oversee national security issues. Yet the President did not mention “national security” concerns when he suspended Mr Pikoli and nor did the government argue that Mr Pikoli had not taken into account national security concerns when he requested a warrant to be issued for Mr Selebi’s arrest.

If the President, with all the facts at his disposal and privy to national intelligence briefings, did not think this was a serious enough issue to warrant Mr Pikoli’s suspension, then it clearly was not a real issue that demonstrated Mr. Pikoli lacked the conscientiousness and integrity required by the Constitution and the NPA Act. Unless, of course, the President and the government lied when it suspended Mr Pikoli and  unless the government then lied about the reasons for Mr Pikoli’s suspension before the Ginwala Commission of Enquiry and provided bogus reasons for his suspension.

Surely the President must be given the benefit of the doubt on this issue – given the fact that he is privy to all the dark secrets of the country and given also the fact that we must presume that the President would not deceive the nation or the Ginwala Commission of Enquiry.

Given the above, it seems clear to me that the decision by the ANC majority on the joint ad hoc committee of Parliament is a political and not a legal decision. I contend that the decision to fire Pikoli is therefore illegal and that Parliament will be in breach of the law and the Constitution if it confirms the decision of the ANC majority on the committee. I sure as hell hope Mr Pikoli and his lawyers take this case to the Constitutional Court and that, in due course, it will be shown that Parliament demonstrated that it was neither fit nor proper when it did this political hatched job on Mr Pikoli in order to try and protect their President.

Rejecting a claim by the accused, Mkhize said their version “bothers on stupidity”. Elsewhere, having dismissed their “stupid” version of events, he notes that the six accused were “appealing witnesses”.

It’s not just that the judgment is incomprehensible — there’s also precious little legal reasoning evident in the 19 pages. Who would compile a judgment of this quality? Not someone fit to be a judge: it shows neither respect nor aptitude for the position.

I must say the tone of the column made me feel uneasy. Perhaps because I am not a first language English speaker myself and sometimes get my tenses mixed up as well, I felt a bit sorry for Adv Mkhize. Was this kind of mocking of a senior Advocate not perhaps a kind of thinly veiled racism? I am on record as saying that the ethically challenged Mkhize would be the worst possible candidate for head of the NDPP, but should one not be a bit sensitive to cultural differences when one reads judgments by individuals whose first language is not English?

After reading the judgment in its entirety I must say Ricard does have a point – although her gleeful exposure of Mkhize still leaves me uncomfortable. It is not (only) the fact that the judgment is incoherent and at places incomprehensible. It is that it utterly lacks legal reasoning. For example, there was a trial within a trial to establish whether the confessions of the accused should be admissible as evidence. After dealing with the evidence the “reasoning” on which the decision about this rather important aspect rests, reads as follows:

After listening to the evidence it is ordered that the statements made by accused 1,2,3,4,6 & 7 to the commissioned officers or magistrate were made freely & voluntarily with accused in their sound & sober senses having not been influence there to here to such statements are admissible as evidence against the accused persons.

Where is the reasoning? Later on when the acting judge rejects the evidence of the accused he writes:

The version by the accused 1,2,3,4 & 5 give that know nothing about the housebreaking at Boxer cash & carry, that they did not see the green bag in the vehicle driven by accused 1 whilst they were passengers bothers on stupidity and it is rejected as a lie, the accused according to the evidence were almost caught committing crime red handed.

How can one “almost” be caught committing the crime red handed? What is clear from the judgment – even if one looks past the embarrassing English and the incoherence, is that underneath all that there is not a very sharp legal mind at work. Clearly this man is not fit and proper to be the head of the prosecuting authority in South Africa? That should have perhaps been the focus of Ricard’s column, not the weird English used by the potential next head of the NDPP.

Or maybe I am just hyper sensitive?

Meanwhile President Kgalema Motlanthe has said a rather wise thing, namely that the JSC might have to get involved in the appointment of the head of the NPA – just like judge Chris Nicholson suggested. Will this not go some way to address the argument of principle sometimes used by Jacob Zuma and his supporters (when it suits them) that the NDPP cannot be independent because he is appointed by the President?

Perhaps the same process as that used when appointing jduges to the Constitutional Court could be followed, where several names are sent to the President by the JSC who has to choose one of that names. Such a process will strike the right balance between the fact that the head of the NDPP must implement the prosecutions policies of the government of the day on the one hand, while acting without fear, favour or prejudice on the other.

Maybe the NPA act can be amended before Vusi Pikoli is replaced? Then maybe we can get a competent and credible person to head the prosecuting authority. Come to think, such a person could be… er…. Vusi Pikoli. One thing is sure Adv Mkhize would not make any shortlist of the JSC.

I am sure these reports are just malicious speculations by dark forces in the unpatriotic media hell bent on discrediting Jacob Zuma and the ANC. Surely, the ANC would not appoint Adv Mkhize to such an important position at the pinnacle of the indpendent Prosecuting Authority? So, I will have to assume that these reports are not true. Viscious lies, they are (as Yoda would have said).

The Durban newspapers report that Mkhize’s ethical misconduct related to his chairing of an internal disciplinary inquiry at the Ubuhlebezwe (Ixopo) municipality, in which he found the chief financial officer guilty of misconduct and recommended his immediate dismissal.

It later emerged that prior to the hearing, he had provided the municipality with written legal opinion on the issue, recommending what charges should be laid and stating that “on those charges he will be found guilty and be dismissed”. Mkhize’s ruling was overturned on review before the Natal Provincial Division, and he was admonished and fined by the KwaZulu-Natal Society of Advocates.

Under our Constitution the President has the authority to appoint the National Director of Public Prosecutions (NDPP). This means the President can appoint someone he believes will share the government’s views on the fight against crime and on the prosecutions policies that must be agreed upon between the NDPP and the Minister of Justice.

At the same time the President cannot appoint a party hack who will obey orders from the executive or the legislature to prosecute or not to prosecute any individuals, because the Constitution requires the DNPP to act without fear, favour or prejudice.

The Constitutional Court in the First Certification Case made clear that these provisions mean that the NPA is an independent body and that its independence is implictly protected in the Constitution. (Sadly, this is a judgment that some of the ANC members of Parliament is not familiar with, so some of them have said there is confusion about the independence of the NPA – despite this clear statement from the highest court in our land.)

The National Prosecuting Authority Act must give effect to this constitutional independence and does so in many ways. One is by prescribing the qualifications that any person appointed by the President as NDPP must posess. Section 9 of the Act states:

9(1) Any person to be appointed as National Director, Deputy National Director must:
(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and
(b) 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.

These provisions have to be interpreted with reference to the constitutional guarantee of the independence of the NPA – as confirmed by the Constitutional Court. The requirements set out in article 9 of the NPA Act must therefore be interpreted – if they are reasonably capable of such a meaning – of complying with the requirements for an independent NPA. If they cannot be so interpreted, they are unconstitutional.

The Constitutional Court has said that in evaluating whether a judicial officer will exercise his or her powers impartially one will have to ask whether a reasonable, well-informed, person, armed with all the relevant facts, would have a reasonable apprehension that the relevant  officer would potentially be biased in his or her decision making. Context is all important. Although different judicial officers will be evaluated differently – depending on what body they serve on and the powers they have – this test will apply to all of them with due regard to the different roles played by such officers.

I would argue the same kind of test will thus also apply to the head of the NPA – taking due regard that the NDPP must implement the prosecuting policy of the government and can therefore be someone that is broadly trusted by the President of the day to implement that policy.

But where informed and reasonable persons will have a reasonable apprehension that the person appointed as NDPP was appointed with an ulterior purpose, namely appointed not merely to implement the broad prosecution policies of the government, but to make decisions of a specific kind in a specific case that would benefit specific politicians – the leader of the same party that the President hails from say - the letter and spirit of the NPA Act and the Constitution would have been breached. The decision of the President to appoint such a person will then become reviewable because then the President would have acted ultra vires.

The Constitution and the NPA Act does not empower the President to undermine the independence of the NPA by appointing a person for an ulterior motive. Where reasonable, well-informed individuals will have a real apprehension that the DNPP was appointed for an unlterior purpose and that he or she would not act in an independent manner, the appointee will not be a fit and proper person as required by the NPA Act.

In the case of Mr Mkhize, the mere fact that he appeared for Mr. Zuma in one of his many cases will probably not trigger this apprehension of bias. Lawyers appear for many different accused all the time – it does not mean they are friends with or support the accused. In any case, as a good, ethically sound, lawyer Adv Mkhize will surely recuse himself when decisions regarding his previous clients are made by the NPA.

But one must look at all the facts to form an opinion whether a reasonable apprehension of bias can be found. Adv Mkhize has pleaded guilty to serious misconduct. He therefore has admitted that at least on one occassion he lacked the integrity and conscientiousness required for the job of NDPP.

Taken together, these two factors will make it very difficult for the President to show that he had not acted with an ulterior motive in appointing Adv Mkhize. This decision would then become challengable in court. Any reasonable person, faced with all these facts, would have a reasonable apprehension that Adv Mkhize may not always act without fear, favour or prejudice, but may well act to protect Mr Zuma from prosecution.

That is why I am sure these news reports are just scurrilous rumours spread by dark forces (Lord Sauron perhaps?) who want to discredit the ANC, President Kgalema Motlanthe, Jacob Zuma and Adv Mkhize.

Besides, Cosatu and the SACP has long argued that the NDPP should be an independent person, free from political interference by the executive, so their leaders will obviously strongly argue against the appointment of someone like Adv Mkhize. This is not because he is a bad person or because he will be biased – merely because many reasonable and informed people will have a very strong (and quite reasonable) fear that he will be biased. If there is indeed talk amongst the President’s advisors of appointing Adv Mkhize, I am sure those principled defenders of the NPA’s independence like Cosatu and the SACP will make a lot of noise to dissuade the President from appointing such a person.

No, I am sure President Motlanthe will appoint an independent-minded professional lawyer who will act in the best interest of the NPA at all times. Surely that is what the Constitution requires him to do. That is what Mr Zuma and his defenders have demanded all along and as principled people they will not change their minds merely to score a short term political advantage. Besides the President would never act in a way contrary to the letter and spirit of the Constitution, now would he.