Constitutional Hill

Menzi Simelane

Another legal oversight by the President?

Dec 29th, 2011
by Pierre De Vos.
52 comments

“Americans,” said Winston Churchill, many years ago “can always be counted on to do the right thing…after they have exhausted all other possibilities.” News that President Jacob Zuma seemed to have made another u-turn by accepting the decision of the Supreme Court of Appeal (SCA) which declared the appointment of the National Director for Public Prosecutions, Menzi Simelane, invalid, one day after lodging papers with the Constitutional Court opposing the decision, might well tempt one to apply this maxim to his Presidency.

After all, this year President Zuma first appointed and then fired Willem Heath as the head of the Special Investigative Union; first opposed the establishment of an arms deal inquiry before instituting one and eventually fired two cabinet Ministers and suspended the Police Commissioner – but only months after the Public Protector had found them guilty of maladministration.

Yet, it is not clear that the recent decision of President Zuma on Adv. Menzi Simelane complies with the provisions of the Constitution and the NPA Act. It is therefore far from clear whether President Zuma has done the right thing in this case. (Or put differently, he might have done the right thing but in an unlawful or unconstitutional manner.)

In a statement issued yesterday, the Presidency (somewhat confusingly) said that it had decided not to appeal the decision of the SCA.

However, the Minister of Justice and Constitutional Development, Mr Jeff Radebe will pursue the matter, seeking clarity on various issues in the course of the mandatory Constitutional Court certification process, with the full support of the President. In the meantime, the President has decided to place Advocate Simelane on special leave. Advocate Nomgcobo Jiba, Deputy Director of Public Prosecutions, will act as the National Director of Public Prosecutions until further notice.

It is not clear on what issues clarity is being sought from the Constitutional Court. One would assume, these would include clarity on what the President is required to do to comply with the provisions of the National Prosecuting Authority Act when he appoints a “fit and proper” person as head of the NPA.

Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. This means whether the President opposes the decision of the SCA or not, it will have no force and effect unless the Constitutional Court confirms it. Even if the Presidency does not “appeal” the decision of the SCA, it might therefore still be overturned by the Constitutional Court during the confirmation process and until that court decides on the issue, legally the National Director of Public Prosecutions (NDPP) remains in his post.

After the SCA handed down its decision, I contended that it would be in the best interest of the administration of justice for Adv. Menzi Simelane to step aside voluntary until such time as the Constitutional Court has dealt with this matter. Readers might therefore be forgiven for thinking that I would applaud the announcement that Adv. Simelane had been placed on special leave. And, of course, I cannot fault the Presidency for believing that it would be better for Adv. Simelane to go on leave until the SCA judgment had been dealt with by the Constitutional Court.

However, I am not sure that it is legally and constitutionally tenable for the NDPP to be placed on special leave by the President. In the absence of an announcement about an inquiry into Adv. Simelane’s fitness to hold office, the NPA Act makes no provision for the NDPP to be placed on special leave by the President – unless the NDPP himself requests this. There is a good reason for this: if the President could place a NDPP on special leave this would potentially fundamentally interfere with the independence of the NPA and would be illegal and unconstitutional.

The Constitutional Court confirmed in the First Certification judgment that the NDPP is independent. He or she can only be placed ons special leave, suspended or removed from office in terms of the NPA Act after following the correct procedures. The statement by the Presidency makes no mention of these procedures. I was critical of then President Thabo Mbeki when he first suspended Vusi Pikoli as NDPP after Pikoli had issued a warrant of arrest for Police Commissioner Jackie Selebi, arguing that the move reeked of interference with the independence of the NDPP.

The same principle applies here, despite the fact that the incumbent NDPP appears to be less enthusiastic about his independence. One must apply principles regardless of the personalities involved.

Section 12(5) of the NPA Act clearly states that the NDPP “shall not be suspended or removed from office except in accordance with the provisions of subsections (6), (7) and (8)”. Section 6 of that Act states that:

The President may provisionally suspend the National Director … from his or her office, pending such enquiry into his or her fitness to hold such office as the President deems fit and, subject to the provisions of this subsection, may thereupon remove him or her from office (i)  for misconduct; (ii)  on account of continued ill-health; (iii)  on account of incapacity to carry out his or her duties of office efficiently; or (iv)  on account thereof that he or she is no longer a fit and proper person to hold the office concerned.

This clearly has not happened as Adv. Simelane has not been suspended and neither has an inquiry been launched about his fitness to hold office. The only way in which the NDPP can go on special leave is if he himself requests to do so. (That is why I suggested that it would be best for Adv. Simelane voluntarily stepped aside.) Section 8 of the NPA Act provides for this, stating that:

(8(a) The President may allow the National Director or a Deputy National Director at his or her request, to vacate his or her office (i) on account of continued ill-health; or (ii) for any other reason which the President deems sufficient.

(b) The request in terms of paragraph (a)(ii) shall be addressed to the President at least six calendar months prior to the date on which he or she wishes to vacate his or her office, unless the President grants a shorter period in a specific case.

The statement that the President has decided to place Adv. Simelane on special leave is therefore perplexing and pose serious questions about the legality of this move. No mention is made of a request received from Adv. Simelane to be vacate his office (or, for that matter, to be placed on special leave), neither is mention made of the reasons given by Adv. Simelane for this or the reasons why the President had decided to waive the requirement that such a request must be received six month before the leave takes hold. In the absence of such a request, a decision of President Zuma to place Simelane on special leave would therefore be unlawful as it would interfere with the independence of the NPA and would not comply with the NPA Act.

In any case, section 8 deals with the termination of the services of the NDPP and not with being placed on special leave.

After I had suggested that it would be better for Adv. Simelane to go on leave voluntarily, he responded to questions of Adriaan Basson, a journalist from City Press, by stating that he had no intention to step aside. The statement by the Presidency does not clarify this issue and is phrased in such a manner as suggesting that the decision was taken by President Zuma without receiving the requisite request from Simelane. In the absence of a clear statement that a request was received from Adv. Simelane to vacate his position (or, perhaps, but far more arguably) go on special leave, one must assume that the President has therefore again acted unlawfully.

What is required, at the very least, is for Adv. Simelane to clarify the situation. In the absence of a specific indication by him that he requested to vacate his office (or, at a stretch, to go on special leave), the decision by the President to place him on special leave must surely be null and void. This interpretation may seem overly legalistic, but there is a very good reason for interpreting the NPA Act in this way. One should not set a precedent in which the President of the country places the head of the NPA on special leave without receiving such a request from the NDPP. This is so because the precedent set would not only be unlawful but would also potentially interfere with the independence of the NPA.

Clarity from Adv. Simelane and/or the Presidency is therefore needed urgently to remove any uncertainty about the position of the NDPP.

“No one is above the law”

Dec 1st, 2011
by Pierre De Vos.
147 comments

In commenting on the (re-)appointment by President Jacob Zuma of Mr Willem Heath as the head of the Special Investigating Unit (SIU), an editorial in Business Day this morning notes that President Jacob Zuma has acted consistently ”to draw around him an iron ring of men he relies on to keep him safe. South Africa and its interests are not part of this particular calculation. The fact that the fraud and corruption charges against him, expediently dropped before the last general election, could quite easily be resuscitated is at the centre of everything he does”.

Part of this pattern was the appointment, early in his tenure as President, of Adv. Menzi Simelane as National Director of Public Prosecution (NDPP). The abolition of the Scorpions and the creation of the far less independent Hawks can similarly be seen as an attempt to protect the President from future prosecution for taking a bribe from fraudster Shabir Shaik.

President Zuma’s recent statement that the executive ”has the sole discretion to decide policies for the government”, that the executive “must be allowed to conduct its administration and policy-making work as freely as it … can” and that the “powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”, can thus arguably be read as an expression of concern about the Constitutional Court’s decision to torpedo the Hawks, and the resultant dismantling of parts of the iron ring President Zuma had erected around himself to protect himself from prosecution for corruption.

It is against this background that today’s judgment of the Supreme Court of Appeal (SCA) declaring the appointment of Menzi Simelane unlawful, must be read. In Democratic Alliance v President of the Republic of South Africa and Others a unanimous court, in a judgment authored by judge Mahommed Navsa (Heher, Mhlantla, Majiedt JJA and Plasket AJA concurring) the SCA found that the President had acted irrationally and hence unlawfully when he appointed Simelane as NDPP and acted in breach of the prescripts of the Constitution and section 9(1)(b) of the National Prosecuting Authority Act 32 of 1998.

Perhaps believing that it was required to provide the President with some pointers on the nature of a constitutional democracy like ours, the SCA pointed out that ours is a democratic state founded, amongst other values, on the supremacy of the Constitution and the rule of law. Section 1(d) of the Constitution commits government to democracy and to accountability, responsiveness and openness. Section 2 of the Constitution reaffirms that the Constitution is the supreme law of the Republic and that law or conduct inconsistent with it is invalid and that the obligations imposed by it must be fulfilled. Thus, every citizen and every arm of government ought rightly to be concerned about constitutionalism and its preservation.

This meant that  the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands. In what could be read as an indirect response to the recent statements of President Zuma, the SCA then proceeded to make the following powerful observation:

No-one is above the law and everyone is subject to the Constitution and the law. The legislative and executive arms of government are bound by legal prescripts. Accountability, responsiveness and openness are constitutional watchwords. It can rightly be said that the individuals that occupy positions in organs of state or who are part of constitutional institutions are transient but that constitutional mechanisms, institutions and values endure. To ensure a functional, accountable constitutional democracy the drafters of our Constitution placed limits on the exercise of power. Institutions and office bearers must work within the law and must be accountable. Put simply, ours is a government of laws and not of men or women.

The SCA pointed out that institutions of state integral to the well-being of a functioning democracy have to be above reproach, have to be independent and have to serve the people without fear, favour or prejudice. Given the fact that the NPA has “awesome powers” and “that it is central to the preservation of the rule of law”, it is imperative that members of the NPA exercise these powers with the utmost integrity. That must mean that the people employed by the prosecuting authority must themselves be people of integrity who will act without fear, favour or prejudice.

The SCA again reminded us that in the Certification judgment the Constitutional Court stated that section 179(4) of the Constitution provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. “There is accordingly a constitutional guarantee of independence [of the NPA], and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.”

This is why the NPA Act requires that the NDPP must, inter alia “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.” This was an objective standard. The President could not decide, based on his own personal views and disregarding all the available evidence, that his choice for NDPP was “fit and proper”.

This is so because the relevant section of the NPA Act does not use the expression “in the President’s view” or some other similar expression. Qualities like “integrity” must be assessed objectively. A person would have integrity if he or she possesses characteristics like‘honesty, principle, honour, virtue, goodness, morality, purity, righteousness, probity, rectitude, truthfulness, trustworthiness, incorruptibility, uprightness, scrupulousness, reputability.

In the light of the above the President was required to obtain sufficient and reliable information about the candidate’s past work experience and performance; to obtain sufficient and reliable information about the candidate’s integrity and independence; and in cases where the candidate is the subject of allegations calling his fitness to hold office into question, a satisfactory process to determine the veracity of the allegations in a reliable and credible fashion.

In this case the starting point of the President was wrong. The Minister of Justice had stated that the President told him, at the outset, before asking for his input, that the President had “firm views” on appointing Mr Simelane as NDPP. The President could not argue, as he did, that absent any firm evidence to the contrary he could conclude that Simelane was fit and proper. More was required from the President to comply with the law.

This would especially be the case in a situation like the one under review where serious findings of impropriety had been made by the Ginwala Enquiry and by a court of law against the President’s choice of NDPP.

A fundamental problem for the Minister and the President is that they both considered that the GE [Ginwala Enquiry] report was irrelevant or, based on a rigid view that the GE enquired into Mr Pikoli’s fitness for office and did not concern Mr Simelane’s integrity. It is clear from the President’s account of the discussion with the Minister and from his description of his mindset…. that he took the view that the GE report, insofar as it related to Mr Simelane, was a note of precaution to the National Executive, the NPA and Parliament and that it was not a report intended to have Mr Simelane disqualified for future appointments. The President and the Minister wrongly discounted Minister Surty’s serious concerns about the Ginwala report and its impact on Mr Simelane. So too they were too easily dismissive of the PSC’s [Public Service Commission's] attitude in this regard. It ought also to have been a matter of concern that the GCB had been poised to enquire into Mr Simelane’s conduct ─ it is a matter that would directly affect public perception about his candidacy. It is not unlikely that the GCB probe ground to a halt because of the ensuing litigation.

The Ginwala Enquiry report was directly relevant to the questions required to be addressed in the appointment process. They bring his integrity directly into question. They were issues of serious concern to Minister Surty, with whom the PSC agreed. There may well be answers forthcoming from Mr Simelane on the issues raised by the GE report, but at the very least they required interrogation.

The Minister and the President therefore both made material errors of fact and law in the process leading up to the appointment of Mr Simelane. This speaks to both rationality and legality. The President is required to act in good faith and must not misconstrue his powers. In failing to take the findings of the Ginwala Enquiry into account, the President took a decision in respect of which he ignored relevant considerations. By doing so he misconstrued his powers and acted irrationally.

It is clear that the President did not undertake a proper enquiry of whether the objective requirements of the NPA Act were satisfied. In fact, “on the available evidence the President could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience”.

The SCA concluded its judgment by responding to the view expressed by the President that he was “the choice of the people. The Constitution vests in him the power to apply his value judgment and appoint a NDPP who meets the objective criteria and is a fit and proper person to hold such office.” This view implies that because the President was democratically elected he had the right to choose anyone he wished as head of the NDPP and to determine whether the requirements for a NDPP prescribed in the NPA Act was met. It mirrors previous statements made by the President about the separation of powers doctrine. The SCA dismissed this view by quoting former Chief Justice Ishmael Mahommed.

“The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.” These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.

The judgment could therefore be read as engaging in a dialogue with the executive about the power of the judiciary vis-a-vis the executive. It reminds the President that he is not above the law and that he cannot ignore the law or the judgments of the courts enforcing the law.

I would guess that the judgment would not go down well with President Zuma and others who have launched direct or veiled attacks against the judiciary and against the very principle of a supreme Constitution enforced by the courts. How the executive responds to this judgment is therefore pivotal to the future health of our constitutional democracy. Attempts to subvert the judgment or undermine the court who made it, would send a signal that the current government opposes the notion of a constitutional democracy. A sober and considered response would go a long way to allay fears among some that the executive is indeed not committed to our constitutional project.

One further issue needs to be highlighted. For the moment Adv. Simelane is not legally prohibited from continuing in his post. Section 167(5) of the Constitution states that the Constitutional Court makes the final decision whether conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal before that order has any force. However, as a practical matter, it would probably be in the best interest of the administration of justice and the criminal justice system as a whole if Adv. Simelane voluntary stepped aside until the Constitution Court has either confirmed or overturned the SCA decision.

It must be recalled that we have a system of objective invalidity, which means an unconstitutional act by the President is unconstitutional from the moment it was taken. If the Constitutional Court confirms that the President had acted unconstitutionally, then the appointment of Adv. Simelane would be void and all decisions taken by him since appointment would have no force and effect unless otherwise directed by the Constitutional Court. Surely, it would be better if this legal uncertainty is not further exacerbated by the continuing presence of Adv. Simelane as NDPP.

If the Constitutional Court overturns the SCA judgment, Adv. Simelane could then resume his duties and little harm would have been done to the administration of justice. However, if that court confirms the SCA decision and Simelane had stepped aside now, it would then not be faced with the difficult issue of what to do about the legality of all the decisions taken by Simelane since the SCA had found that his appointment was unlawful. It would be understandable if the first reaction of a defiant government and an even more defiant Simelane would be to want to continue in office, but this would not be in the best interest of the government or the country. Hopefully, after considered reflection, the best interest of the country will weigh heavier than the ego’s of the personalities involved in this case with Adv. Simelane and with the government and a decision will be made for Adv. Simelane to step aside until the Constitutional Court has delivered its judgment.

Mail & Guardian case raises difficult questions

Nov 19th, 2011
by Pierre De Vos.
28 comments

News that Presidency spokesperson Mac Maharaj’s attorneys laid charges against the Mail & Guardian and two of its journalists on Saturday, comes as a bit of a surprise. The Mail & Guardian reports that attorneys acting on behalf of Mac Maharaj, laid charges against Mr Sam Sole, Mr Stefaans Brümmer and the Mail & Guardian newspaper for contravening the provisions of section 41(6) of the National Prosecuting Act of 1998.

This follows the “censoring” of the Mail & Guardian on Friday after it wanted to publish an article based on in interview conducted with Mr Maharaj by the now defunct Scorpions while it was investigating charges of corruption against Maharaj in connection with the awarding of a tender to produce credit card drivers licences to a company associated with fraudster Schabir Shaik. (If you are sympathetic to Mr Maharaj, you might argue that the Mail & Guardian was not censored but merely forced to comply with the provisions of the NPA Act – as any law abiding citizen would be expected to do.)

Section 28 of the NPA Act empowers the NPA to summons any suspect or witness who is then required to appear and to testify truthfully about any matter relating to a criminal investigation. The suspect or witness is also legally required to produce any book, document or other object in his or her possession or under his or her control which he or she has been summoned to produce. A persons who fails to answer fully and to the best of his or her ability any question lawfully put to him or her; or who gives false evidence knowing that evidence to be false or not knowing or not believing it to be true, is guilty of a crime and if found guilty would be liable to a fine or to imprisonment for a period not exceeding 15 years or to both such fine and such imprisonment.

I have no idea what allegations were contained in the blacked out report in the Mail & Guardian. However, if the newspaper had information in its possession that Mr Maharaj had lied to the NPA, this would be an explosive development as it would mean that Mr Maharaj had committed a crime for which he would be liable to a sentence of up to 15 years in jail. It would then clearly be in the public interest to publish this information because one has a legal duty to report the commission of a crime (and a cover up by the NPA or the Police who had failed to pursue it). If the newspaper has information which proves that there was a discrepancy between Mr Maharaj’s testimony and the proven facts, Mr Maharaj would have no leg to stand on.

However, if the report dealt with allegations levelled against Mr Maharaj during the criminal investigation, allegations which were never pursued in a court of law, the newspaper would be on more shaky grounds and Mr Maharaj might have been justified in stopping the newspaper from publishing its report. There are good reasons to prohibit the publication of documents in possession of the NPA or of the interview conducted with suspects and witnesses in terms of section 28 of the NPA Act. Confidentiality would normally be required to protect the NPA and to safeguard its work to ensure the successful prosecution of criminal offences. If documents and information dealing with a criminal investigation that is in possession of the NPA are routinely leaked, it would make it almost impossible for the NPA to do its job properly and may well sabotage criminal investigations and prosecutions — which would lead to many criminals being left off the hook.

Confidentiality also allows witnesses and suspects to speak truthfully to the NPA when they are interviewed without fear of having their words twisted or of being exposed unfairly by a newspaper for something the suspect might never have done. Publishing untested allegations against a person — especially if it emanates from a supposedly credible source like the NPA – could well ruin that person’s reputation. Where the information is credible and corroborated by various sources or by authentic documents, the situation will of course be very different and a newspaper will then more often than not be justified in publishing the documents — even if it risks damaging the reputation of the suspect. (That is why the Mail & Guardian could surely not be faulted for publishing information about the encrypted fax which implicated President Zuma in criminal activity.) However, where the allegations are not credible or backed up by other evidence, the suspect would need to be protected and confidentiality would have to be respected.

I have to admit that providing for a 15 year sentence to be imposed on anyone breaching these provisions is rather draconian, but any court asked to sentence a person found guilty of this section would surely take this into account and will never impose such  a harsh sentence — unless the judge has absolutely no sense of justice or fairness and the values of openness and transparency enshrined in the Constitution.

Section 46(6) of the NPA Act prohibits an NPA investigator from disclosing to any other person any information which came to his or her knowledge in the performance of his or her functions as an investigator. The section also prohibits any person from disclosing to any other person the contents of any book or document or any other item in the possession of the prosecuting authority (such as the infamous encrypted fax which implicated Jacob Zuma in bribery and corruption); or the record of any evidence given at an investigation done in terms of section 28 of the Act.

The National Director of Public Prosecutions can, however, give permission for such a disclosure. One assumes that this is what happened when the content of the encrypted fax implicating President Zuma was leaked to the Mail & Guardian and then published in that newspaper. If it was not, then the newspaper committed a crime that could have landed its journalists and editor in jail for 15 years.

A court of law can also require a person to hand over the above information or to disclose it. It is unclear whether the Mail & Guardian could rely on this section to approach a court for an order allowing it to publish the alleged incriminating evidence against Mr Maharaj. In the context of the Act, it might well be that this provision relates to the power of a court to order the release of information to other affected parties (like the accused) or to the court itself. I suspect the Mail & Guardian would not be able to rely on the right to freedom of expression to argue that a court has a duty to order the Mail & Guardian to disclose the information. That would be a rather novel interpretation of the section.

At the same time, the section does NOT prohibit anyone from possessing the said documents or from being in possession of information about the interview conducted in terms of section 28 of the NPA Act. This means the provisions of the NPA Act differ markedly from the provisions of the (still) rather draconian Protection of State Information Bill, which criminalises the mere possession of secret documents. Mr Maharaj is therefore barking up the wrong tree when he says the newspaper committed a crime. The newspaper would only have committed a crime if it had disclosed the content of the interview, something which it did not do because Mr Maharaj’s lawyers stopped them from doing so.

A question that arises is whether section 41(6) of the NPA Act may be declared unconstitutional. It clearly infringes on the right to freedom of expression as it prevents newspapers from publishing information about public figures like Mr Maharaj – even when such information may expose the public figure as a criminal or cast doubt on that persons probity or honesty. The only question would be whether the section is nevertheless constitutes a justifiable limitation on the right to freedom of expression in terms of the limitations clause contained in section 36 of the Constitution.

I suspect the issue here is not as clear cut as the Mail & Guardian suggests. As I noted above, there are very good reasons for protecting the confidentiality of NPA documents. However, I nevertheless suspect that there might well be a problem with the constitutionality of section 41(6) of the NPA Act. It places an absolute ban on the disclosure of the information and prescribes a maximum sentence of 15 years for anyone contravening the section. It does not allow for any exception to be made — even when the disclosure would be in the public interest and even when disclosure would be mandated by law (as our law places a legal duty on anyone to report the commissioning of a crime).

It is true that the National Director of Public Prosecutions (NDPP) may waive this provision if he believes that this would be appropriate. However, there is dark cloud hanging over the current NDPP and his credibility, honesty and respect for the law and the Constitution has been questioned by the Ginwala Inquiry and by our courts. The SCA may well soon find that his appointment was unlawful. In these circumstances, and given the fact that the President appoints the NDPP (the very President whose spokesperson is allegedly implicated in the Mail & Guardian story), the safeguard involving the NDPP might be illusory and of no use. In fact the safeguard may well be abused by a NDPP who might only allow the disclosure of documents relating to criminal investigations against individuals (inside and outside the governing party) who happened to be political opponents of the President.

Although this is a relatively close call, I would guess the Constitutional Court will find that the section is not justifiable in terms of the limitation clause because it is over-broad. A more limited provision, providing for confidentiality in most cases but also creating a more credible safeguard to ensure the confidentiality provision is not used to protect liars and crooks from exposure, might be required to safe the section from unconstitutionality. But the case may well go the other way in some of our courts. Judges who are not imbued with the values of openness and transparency, who take for granted the integrity and honesty of the NDDPP or are overly executive-minded, might well find this provision justifiably limits the right to freedom of expression as it allows the NDPP to allow for publication.

No wonder the editor of the Mail & Guardian did not publish the information which would have forced him to take his chances in court later on. He was probably advised that there is a real risk that he would be convicted and sentenced to imprisonment and that it was not an absolute certainty that a challenge to the impugned section would be successful.

Insurance for a rainy day?

Jan 18th, 2011
by Pierre De Vos.
27 comments

Lat last year I took a bet with a friend. I will buy him a good bottle of red wine if President Jacob Zuma is not elected for a second term as ANC President (and then as President of the country). He will buy me a good bottle of red wine if Mr Zuma is elected to a second term. Maybe I will lose this bet. But I don’t think I will.

President Zuma is widely underestimated in South Africa. By this I do not mean that Zuma is a competent manager or visionary leader who is going to be one of South Africa’s great President’s. On the available evidence very few people would be able to claim with a straight face that he is either a competent or a visionary President. In fact, he often gives the impression that he is completely out of his depth, that he is incapable of leading the government of a complex country like South Africa and that others like Kgalema Motlanthe and Gwede Mantashe are really doing the work and the thinking required of government while he smiles and giggles and bumbles along. (Maybe this impression is wrong, but then President Zuma is doing things in private which he seems unable to articulate in public – especially in unscripted interviews.)

No, President Zuma is underestimated as a political survivor. To this observer it seems as if almost every decision President Zuma takes — either as President of the country or President of the ANC -  is calculated to ensure the political survival of Zuma inside the ANC and as head of state. Whether it is the way he has dealt with Julius Malema or the way he is dealing with economic policy, my impression is that he takes decisions (or declines to take decisions) based not on what he thinks is best for the country but what he thinks is best for himself and by extension the ANC. (Sometimes, when we are lucky, these things even overlap.)

Maybe President Zuma has learnt the lesson of that other guy whose name we hardly remember these days (you know, that guy with the criminal ideas about HIV) and maybe this is why Zuma is focusing on keeping control of the ANC and leaving the governing of the country to more competent people. When Thabo Mbeki  lost his grip on the ANC it was not long before he was stabbed in the back and ousted as President and whitewashed out of the ANC history. All his clever, technocratic plans, counted for nothing.

(This is different from Helen Zille, who seems to take decisions because she has convinced herself that she knows everything, that she is always right and that she is saving Cape Town, the Western Cape, South Africa and the world from the stupidity and dangerous vacillation of those lilly-livered individuals who believe in the outrageous notion that the world is a complex place and that there are often two sides to a story and many nuances to an issue that makes it rather difficult — if not impossible — self-righteously to claim always to have the final answer.)

President Zuma’s appointment of Menzi Simelane as National Director of Public Prosecutions was widely seen as an attempt to protect himself from any further possible prosecution. He has also appointed his friends and buddies (of different shades of competence and honesty) to all the major positions in the security cluster. If one controls the intelligence services, the army and the police force as well as the Prosecuting Authority, one is well on one’s way to a second term as President (and a third and fourth term as well — if one wants them).

This is why the President’s new appointments to the NPA does not come as a surprise. I could not say it better than the Business Day editorial:

THE appointment by President Jacob Zuma of advocate Nomgcobo Jiba as deputy national director of public prosecutions is disturbing, but sadly also unsurprising. It follows a worrying trend in the Zuma government of appointing supplicants and allies to key positions within the security establishment.

Some of these people may surprise us by being effective so, by rights, judgment should be suspended until they have proved themselves in office. But it must be said that the omens do not look good.

Ms Jiba’s record of prosecutions in prominent cases seems light for someone who is being promoted to such a senior post. Her only notable claim to fame so far is that she was facing charges for undermining her superior at the time, senior prosecutor Gerrie Nel. The charges were dropped, as were the charges that she was apparently involved in instigating against Mr Nel.

Mr Nel was, however, shockingly arrested in 2008 in what appeared to be a bid to disrupt the investigation into former police commissioner Jackie Selebi. Ms Jiba was suspended by then acting national director of public prosecutions Mokotedi Mpshe for her part in this alleged conspiracy.

Mr Nel was responsible for successfully bringing a criminal case against Selebi. In most places in the world, anyone responsible for successfully prosecuting the former chief of police and head of Interpol would be regarded as a national hero. But Mr Nel was leapfrogged by the very person who was accused of being involved in a conspiracy to try to halt that case.

The other appointment made at the weekend was that of Nomvula “Pinky” Mokhatla to deputy national director. She too is without any notable achievements in law enforcement to her name as yet.

The political message seems clear: the African National Congress (ANC) is trying to make sure none of its senior members get to be the target of an investigation that so embarrassed the party and Mr Zuma over the past few years.

Yet the result is likely to rebound on the party, which is steadily blunting the sword of justice. Without this sword, the ANC will be without the tools to fight corruption within the party and the country, and that will ultimately degrade both.

NPA Code is a good first step

Jan 6th, 2011
by Pierre De Vos.
14 comments

The new Code of Conduct for public prosecutors — drafted my National Director of Public Prosecutions (NDPP) Menzi Simelane in consultation with the Minister of Justice – which was published earlier this week, should be welcomed. Given the fact that the National Prosecuting Authority (NPA) has been mired in controversy over the past few years, this Code can be viewed as a first step towards rehabilitating the image of the NPA and towards re-establishing its credibility.

Criticism of the NPA has not always been fair or well informed. On occasion it  has been based on the ignorance of the public (or of some politicians) about the legal issues in play. On others occasions criticism has been informed by the shameless attempts of crooks and charlatans to try and politicise the prosecuting process in order to escape prosecution for corruption and other serious crimes. Who will forget that Brett Kebble and some of his associates had argued that he was being pursued because he was a victim of a political conspiracy against him?

But the NPA has not always acted in a way that instils confidence in its independence and impartiality. There is no doubt that the manner in which the NPA handled the Zuma case — first declining to prosecute him despite claiming that there was a prima facie case against him and then timing its eventual decision to prosecuting him in a manner that appeared to have been influenced by political considerations — tainted the credibility of the NPA.

Apart from the Schabir Shaik and Jacob Zuma cases, the NPA – along with the relevant law enforcement agencies — have also shown a worrying reluctance to deal in any credible manner with the overwhelming evidence of corruption in the arms deal. This gave the appearance that political — rather than legal — considerations played a role in decisions about arms deal investigation and prosecution.

On paper the new code of conduct addresses these concerns. It states, quite correctly, that: “the prosecutorial discretion to institute and to stop criminal proceedings should be exercised independently, in accordance with the Prosecution Policy and the Policy Directives, and be free from political, public and judicial interference”. It also requires prosecutors to “avoid participation in political or other activities which may prejudice or be perceived to prejudice their independence and impartiality”.

There are, however, two concerns that arise from this code of conduct.

First, the code states that prosecutors, when exercising their duties, must “take into consideration the public interest as distinct from media or partisan interests and concerns, however vociferously these may be presented”. On its face there is nothing controversial about this statement. Prosecutors should not be swayed by the often uninformed and even hysterical opinions expressed by politicians or members of the media.

However, in a one-party dominant democracy in which the dominant party as well as many members of the civil service and the various independent bodies such as the NPA have a tendency to conflate the party and the state, the notion of the “public interest” can be problematic. From a certain ideological perspective, the “public interest” can easily be viewed as identical to the  interest of the governing party and its leaders.

It must be impressed upon prosecutors (including the NDPP, who in the past has acted in a manner that seems to suggest that he equates the interests of the governing party with the public interest) that when they act in the public interest, they have a duty to protect the general public from criminal activity without fear, favour or prejudice. It is not their duty to protect the ruling party and its leaders in the name of “political stability” or some other vague notion of the public interest.

No matter whether a crime was committed by an individual living in Houghton or Soweto, whether the accused is the President of the country, the Police Commissioner or a homeless person, whether he or she is rich or poor, or black or white, it will almost always be in the public interest vigorously (but fairly) to prosecute the accused if sufficient evidence exist to have established a prima facie case against the accused.

The dropping of charges against Jacob Zuma – on rather spurious grounds, relying on an overturned judgment from a Hong Kong court which was shamelessly plagiarised — was clearly not in the public interest. It was also not done in conformity with the Prosecution Policy as required by the Constitution and the NPA Act. Although it was clearly in the interest of the governing party to drop charges against the soon to be elected President, it is far from clear that this was in the public interest.

The distinction between the public interest and the interest of the political party who happens to have garnered the most votes at the last election is not always easy to distinguish. Where that party is electorally dominant and where a perception has taken hold that it is in the public interest that the party continues in power, even relatively fair-minded people (like Willie Hofmeyer) who happen to be members or avid supporters of the governing party could be tempted to conflate the public interest with that of the governing party. Prosecutors should avoid this mistake at all cost. Only time will tell whether they will do so in future.

Second, no matter how independent, impartial and fair the NPA is, high profile and well-connected individuals in the private sector and powerful politicians aligned with the ANC will not be prosecuted if credible allegations against them are not vigorously investigated by the relevant law enforcement agency. However, the South African Police Service – including the Hawks – have not yet demonstrated that they will always investigate corruption and maladministration without fear or favour.

The arrest of John Block, the ANC chairperson in the Northern Cape, may be considered as a good sign in this regard. But one case does not establish a trend, so it is far too early to tell whether ANC-aligned politicians and businessmen will be investigated vigorously when the evidence suggest that this is required — even when this may not be politically acceptable to the ANC. If South Africa is to tackle the increasing problem of corruption, even politicians and businessmen who are allies of the President or of other powerful politicians must be seen not to be above the law.

When corrupt businessmen believe — rightly or wrongly — that they can “buy” insurance against investigation and prosecution by donating millions of Rand to the ANC and its Youth League (as Brett Kebble did) or by giving away fake BEE shares to family members of the President or other well-connected ANC leaders, the entire business environment will become further corrupted and this will lead to more — not less — corruption.

The NPA has a difficult task. Whenever it decides to prosecute a politician or someone connected to a politician, the accused will invariably claim that there is a political conspiracy against him or her. (This is not unique to South Africa: in the USA the Republican candidate for a Delaware Senate seat claimed that she was being targeted as part of a political conspiracy when news emerged that she was being investigated for campaign finance fraud.)

Given the manner in which the NPA had been tainted in the past, such claims will continue to have some traction. It is only when the NPA acts fearlessly and bravely and is consistently seen to act impartially and independently that such claims will be able to be dismissed with the contempt that they deserve. Until then, many well-connected shysters and crooks will continue to try and discredit the law enforcement agencies and the NPA if they dare to go after these crooks.

A leap of logic and a leap of faith

Nov 12th, 2010
by Pierre De Vos.
126 comments

The National Prosecuting Authority Act states that the President can appoint any South African citizen with a legal qualification who is “fit and proper with due regard to his or her experience, conscientiousness and integrity” as National Director of Public Prosecutions (NDPP). This the President purported to do when he appointed Adv. Menzi Simelane to the post of NDPP.

Given Adv. Simelane’s previous brushes with criminal conduct, his unfortunate tendency to be less than truthful and to mislead courts and other official bodies, and his rather adventurous interpretations of the law and the Constitution, it was far from clear that he was indeed a “fit and proper person” as required by the law. The DA therefore challenged the appointment of Simelane, inter alia (as some lawyers might say to demonstrate a basic knowledge of Latin), on the basis that he was not fit and proper and that he therefore did not meet the minimum requirements for the job of NDPP as stipulated by the law.

In the judgment handed down in the case of Democratic Alliance v President of the Republic of South Africa and Others in the North Gauteng High Court, acting judge PC van der Byl found that Adv. Simelane was indeed “fit and proper”. (Why an acting judge — who does not have the security of tenure of a permanent appointee — was asked to hear this politically explosive case remains a mystery.)

I believe the judgment is wrong. It is also badly argued, in as much as any argument can be discerned at all from the reasoning provided by Van der Byl AJ. (Class, although this assignment will obtain 80% for an admirable exposition of the facts, it will obtain no more than 30% for an exposition of the law and 0% for an application of the law to the relevant facts: overall mark 35%.)

Here are my reasons for disagreeing with the judgment. (Premier Helen Zille and members of the ANC Youth League in the Northern Cape might want to take notes on this demonstration of how one can legitimately criticise a decision of an independent body such as the Human Rights Commission, the NDPP or a judge without reverting to ad hominem attacks that undermine the respect for – and independence of – such institutions.)

I come to this conclusion not based on the particular personalities involved in this case, but based on what I see as a complete abdication by the court of its responsibility to enforce the minimum legal requirements that any candidate must meet before he or she can be appointed as NDPP.

The court found (correctly, in my view) that because the law does not prescribe an open and competitive process for the appointment of the NDPP, there was not sufficient evidence before the court to warrant a finding that the President acted irrationally or with an ulterior purpose, despite the President’s rather lackadaisical approach to determining whether Adv. Simelane was indeed a qualified candidate for appointment to the position of NDPP.

However, the court also rejected the contention that the President acted unlawfully by appointing the new NDPP because Adv. Simelane was in fact not fit and proper as required by the law. The argument here centred on the principle of legality, which is an integral part of the Rule of Law. Despite having a broad discretion, the President cannot appoint a person to the position of NDPP if that person does not meet the minimum requirements for a job as clearly provided for by law. If he appoints someone who does not possess the minimum requirements for the job, he acts in “excess of the power conferred on him or her by the enabling legislation” and hence acts unlawfully in contravention of the principle of legality.

The big question is therefore the following: What makes a person “fit and proper” — as required by the NPA Act – and therefore, amongst other things, appointable as the National Director of Public Prosecutions (NDPP)?

When deciding whether a person is indeed “fit and proper”, should a court accept the assurances of an appointee and the person (in this case the President, probably acting on the advice of the Minister of Justice) who appointed the NDPP that the candidate is indeed fit and proper? In other words, should the court accept the subjective assurances of a purported appointee and the President that the future conduct of the appointee will comply with the legislative requirement to act without fear or favour? Or is a court rather required to look at all the relevant facts in the public domain and make (what many lawyers would call) an independent and objective determination about the facts which existed at the time of the appointment?

If the former route is followed (as was seemingly done in this case), it would completely drain the legal requirement that the NDPP must be “fit and proper” of any practical meaning and would allow the President to appoint almost anyone with a law degree and South African citizenship — including a dishonest scoundrel — as the head of the prosecuting authority, as long as the President and the appointee assure everyone that the new appointee will indeed mend his ways and will act without fear, favour or prejudice in future.

This clearly cannot be correct.

The problem with Van der Byl AJ’s judgment is that he conflates two distinct issues. First, at the time of the appointment the NDPP must meet the minimum requirement of being a fit and proper person as required by section 9 of the NPA Act. Second, once appointed the NDPP is required, in terms of section 32 of the Act, to serve impartially and to carry out his or her duties in good faith and without fear, favour or prejudice.

Obviously a person who meets the requirement of being a fit and proper person may well be more likely to act in the way prescribed by section 32. But even if the person, once appointed, acts without fear, favour or prejudice or even where assurances are given by the new appointee and by the President that the new appointee will act in this manner, this cannot cure the initial defect that the appointee did not comply with the minimum requirements for the job prescribed by the law.

An example will illustrate my point. Imagine a law prohibits the appointment of a pedophile as a primary school teacher. In a separate section, the law also states that once appointed a primary school teacher may not molest the children in his care. If the legality of the appointment of the teacher is challenged, a court cannot argue that while the teacher was indeed a pedophile at the time of his appointment, the first requirement was met because assurances were given by the teacher (and by those who appointed him) that he would not molest any children in his care in future. Even if, eighteen months after his appointment, he had not (yet) molested any children, this will not cure the original defect in the appointment because at the time he was appointed his appointment did not meet the minimum requirements for appointment prescribed by the law.

The fundamental mistake of Van der Byl AJ is that he asks the wrong question. Instead of looking at all the evidence available to the President at the time of the appointment and asking whether the appointee was fit and proper at the time when he was appointed, he asks whether there is sufficient evidence — given the assurances of the candidate and the person who appointed him — that the appointee will in future act without fear, favour or prejudice.

Furthermore, even if one agrees with Van der Byl that the requirements of section 9 and 32 of the NPA Act must be read together, Van der Byl AJ errs by taking at face value the assurances given by the new appointee that he will indeed now act without fear favour or prejudice despite the fact that the appointee had previously claimed that the NDPP is required to take instructions from the Minister of Justice and was not independent. There is no indication at all that Van der Byl had weighed the overwhelming evidence of previous malfeasance by Adv. Simelane against the assurances that things will in future be done differently to determine whether such assurances were plausible.

It is rather astonishing that although the learned Van der Byl AJ finds that the criticism of Adv. Simelane’s conduct may well be justified; that the allegations that Simelane did not act with integrity in the past may also be justified; and that Simelane portrayed a lack of respect for the independence of the office he was appointed to in the past, he glibly states — without any explanation — that he finds himself unable to hold that Adv. Simelane was not fit and proper when appointed.

There is no analysis, no weighing of evidence, no reasoning for this decision. The reason for this, I suspect, is because Van der Byl had decided to ignore everything that had happened in the past and hence had declined to determine at all whether Adv. Simelane was indeed fit and proper as required by section 9 of the NPA Act on the day that he was appointed. Instead, Van der Byl focuses on the future and determines that given the bland assurances of future good conduct he is unable to find that Simelane was not fit and proper on the day he was appointed.

From a legal perspective, the only way in which the decision could have been found to  be lawful would have been to make a finding that there was not sufficient evidence before the court that at the time of his appointment Adv. Simelane lacked the integrity required to make him a fit and proper person for appointment.

But this Van der Byl did not do.

Indeed, he seems to suggest that there were overwhelming evidence that Adv. Simelane lacked the requisite integrity. The learned judge then takes a leap of logic (as well as a leap of faith) and seems to conclude that all the evidence of wrongdoing in the past had been wiped out by the bland assurances of the appointee and by the President that the appointee would indeed have more integrity in the future, which would enable him to act without fear, favour or prejudice as required by the Constitution and the NPA Act.

This leap of logic and of faith might turn out to be warranted. Individuals appointed to important independent positions sometimes grow a backbone and start acting in ways that surprise and delight. But it is not a leap of logic and of faith allowed by the law. If Adv. Simelane was not fit and proper on the day of his appointment, no assurances that he would become fit and proper in future could cure the inherent defect in the appointment. Unfortunately the judge did not grasp this simple fact. No wonder he failed the assignment.

PS: I would suggest that in determining whether a person is “fit and proper” the following test could be used. Would a reasonable person (someone who is aware of all the facts about the person which may be in the public domain at the time of appointment, not an overly fastidious or suspicious person, a person not blinded by particular ideological or party-political commitments) have a reasonable apprehension that the appointee lacks the requisite integrity, honesty and diligence required to do the job in accordance with his or her constitutional and legal obligations. In other words, one may ask whether the above mentioned reasonable person will justifiably be fearful that the appointment will not instill public trust in the decisions taken by the appointee.

Another personal attack on an independent institution

Nov 10th, 2010
by Pierre De Vos.
69 comments

When President Jacob Zuma appointed Adv. Menzi Simelane as the National Director of Public Prosecutions (NDPP) I was rather scathing about this appointment, arguing that Simelane was not a “fit and proper” person as required by the National Prosecuting Authority Act and that the appointment was therefore unlawful. I based my critique on the findings of the Ginwala Inquiry which found that Simelane was an untruthful witness and that he had drafted a letter (later signed by the Minister of Justice) which probably contained an illegal instruction.

A few months later, taking part in a panel discussion with Adv. Simelane, former Chief Justice Arthur Chaskalson, and ID leader Patricia de Lille  on whether the judiciary is capable of holding high ranking public officials to account, I told the story of how an apartheid Minister had complained about judges who, once appointed, thought they were there on merit and started thinking for themselves and expressed the hope that Adv. Simelane would similarly now start thinking for himself.

As we live in a democracy (albeit a one party dominant democracy), we all have the right to criticise the President’s choice of NDPP (just as we all have the right to criticise the National Assembly’s choice for Public Protector, Auditor General or any of the South African Human Rights Commissioners). We also all have the right to criticise any decision taken by the NDPP  (like the seemingly unlawful dropping of charges against President Jacob Zuma) — just as we have a right to criticise a court judgment or an decision by the Public Protector or the Human Rights Commission.

I will, of course, continue to criticise decisions made by Adv. Simelane when — based on an analysis of the available evidence – I conclude that he is not fulfilling his constitutional and legal duties. Criticising the decision of a court or of anyone else who serve in one of the independent constitutional institutions is not illegal or unconstitutional. In fact, such criticism is part of the mechanism to hold such institutions accountable. The NDPP is not excluded from this principle.

As the Constitutional Court pointed out in the First Certification case, section 179(4) of the Constitution provides that national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice, while subsection 179(5) states that the NDPP “must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process”.

This, the Court stated, means that there “is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts”. The National Prosecuting Authority Act guarantees this independence as required by the Constitution. Section 32(1) of that Act states that:

(a) A member of the prosecuting authority shall serve impartially and exercise, carry out or perform his or her powers, duties and functions in good faith and without fear, favour or prejudice and subject only to the Constitution and the law.

b) Subject to the Constitution and this Act, no organ of state and no member or employee of an organ of state nor any other person shall improperly interfere with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions.

Anyone who contravenes section 32(1)(b) of the Act is guilty of a criminal offence and could be sentence to a prison term of up to two years if convicted.

Where does that leave the Northern Cape ANC Youth League, who seems rather upset by the arrest and prospective prosecution of ANC Northern Cape chairman John Block? In a statement, issued on behalf of the League by ANCYL Provincial Chairperson, Shadrack Tlhaole, the League “argued” that:

The PEC analysed the charges [against Block] and came to the conclusion that these charges are not (sic) foreign to the youth league and will soon be exposed…. The ANC Youth League Northern Cape is disgusted with the manner in which the national director of public prosecutions advocate Menzi Simelane is handling the case against the chairperson comrade John”Fikile”Block. The conduct of the national director of public prosecutions leaves much to be desired and in fact we are compelled to believe that he is not the only rented dog of a political conspiracy against our leader.

In its statement, the Youth League states rather boldly and with surprising precision and clarity that “there is no prima facie evidence connecting the chairperson with the commission of an offence”. The Youth League is of course entitled to express this opinion, although the opinion is rather laughable as the evidence against Block has not yet been presented in court and it is therefore impossible for any reasonable person to come to a conclusion about whether Block is guilty of any crime.

However, it is extremely worrying that the ANC Youth League launched a personal attack against the NDPP by calling him “a rented dog of a political conspiracy” (whatever that may mean). The statement — coming from a formation who is part of the governing party — could arguably be interpreted as attempting to intimidate the prosecuting authority and thus as interfering with the work of the prosecuting authority in contravention of section 32(1)(b) of the Act.

Sadly, this statement forms part of a broader trend in our political discourse. It seems as if every second politician and wannabe public commentator who do not agree with the decision of an independent constitutional body these days would rather launch a personal attack against the person or persons who made the decision than actually present evidence or arguments about why the decision is legally untenable. As I have argued before, this kind of personal attack on individuals who have been appointed to independent constitutional institutions undermines the integrity of such constitutional institutions (and hence undermines respect for the Constitution itself).

To its credit, the ANC head office reprimanded the Youth League for this outrageous statement.  According to ANC spokesman Jackson Mthembu: “Not only is the ANCYL of the Northern Cape out of line for rubbishing the state security agencies and the courts of law, but should also publicly apologise to Advocate Simelane for calling him ‘a rented dog of a political conspiracy’.” The question to be asked is of course what the ANC will actually do about the matter. Will it stand by idly while one of its sub-structures undermines an independent constitutional institution or will it show that it has a greater regard for the Constitution than some other political organisations by taking action against the Northern Cape Youth League leadership?

If the last few months has taught me anything it is that it is almost never a good idea to launch completely unsubstantiated, vicious and highly personal attacks against members of the judiciary or against members of other independent institutions, especially not if one is merely attempting to discredit the decisions made by these institutions with which one happens to disagree or which are politically damaging to the organisation one happens to belong to. In the world of conspiracy theorists inhabited by so many South African politicians (a world in which the merits of a decision is not really in issue at all) many politicians and other commentators have come to believe that the best way to discredit a decision is to attack and discredit the messenger.

This is not good for democracy and for respect for the Constitution and the law. I wish I could say the Youth League should have known better, but this is of course not the first time it uses such tactics. It has a “proud” record of dodging the substantive issues by shooting the messenger. Just recall the attacks on the Scorpions and the judiciary when the Youth League still thought that Jacob Zuma was the best thing since Johnny Walker Black Label.

Sadly, the Youth League in the Northern Cape is not the only organisation that habitually reverts to such attacks and alleges conspiracies and dark plots when it feels that it is under attack. And our society is the poorer for it. Pity more people are not principled enough to condemn this nasty and counter-productive practice – no matter from where it comes.

More questions for Mbeki on Selebi

Aug 4th, 2010
by Pierre De Vos.
86 comments

When former US President Bill Clinton was confronted with allegations that he had sex in the Oval Office with the White House intern, Monica Lewinski, he went on national television and with his lower lip quivering (he can do that quivering-with-indignation-and-selfrighteousness look better than most politicians), he declared: “I did not have sexual relations with that woman”.

It turned out that this was a bare-faced lie. The American public forgave Clinton, perhaps because he lied about a personal matter and not – like Richard Nixon before him – about serious matters of state. Or perhaps the public forgave Clinton because the US economy was booming. Despite this, Clinton’s historical legacy will always remain tainted by the telling of this blatant lie – communicated with so much conviction that even his wife (who should have known better) claimed to have believed him.

Will South Africans, similarly, forgive former President Thabo Mbeki and even if they did, will his historical legacy always be tainted by evidence of, and allegations about, his mendacity? The sad fact is, the more we learn about Mbeki’s role in the Jackie Selebi case, the more we are confronted with unpalatable evidence that former President Mbeki was not a person with a strong and abiding commitment to the truth.

Selebi has now been convicted and sentenced for corruption. However, it is unclear whether the full truth about the events surrounding the Selebi case - including the events that led to the suspension of former National Director of Public Prosecutions, Vusi Pikoli after he issued an arrest warrant for Selebi – has been told.

On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, an MP in the National Assembly. Groenewald had written a letter on 7 November 2006, requesting President Mbeki to appoint a Judicial Commission of Inquiry to investigate various allegations of corruption leveled against Selebi. In the letter, Mbeki declined to appoint such a commission and wrote:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….

I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

The conviction and sentencing of Jackie Selebi demonstrates that the confidence expresssed in Selebi in the second paragraph of the letter quoted above turned out to be misplaced. It has now also emerged that the claim made in the first paragraph of Mbeki’s letter is difficult (if not impossible) to square with the known facts. In paragraph 257 and 258 of the Ginwala Inquiry Report, Ginwala made the following findings:

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

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

President Mbeki was therefore briefed about the investigation against Selebi on at least two occasions before he wrote the letter to Groenewald in which he claimed that no one “in state structures” had informed him about any investigation (or pending investigation) against Selebi. In fact, Mbeki met Pikoli for a third time to discuss the investigation against Selebi on the very same day that he wrote the letter to Groenewald. As this was a letter and not a national televised speech, one will never know if Mbeki’s bottom lip quivered while he was writing this letter.

This casts new doubt on the veracity of a letter purportedly written by Mbeki to the then Justice Minister Brigitte Mabandla on 17 September 2007 – 6 days before Pikoli’s suspension – about the Pikoli case. Mbeki’s office first refused to release the letter to the Ginwala Inquiry - claiming that it was privileged – but later relented and released the letter to Ginwala. The letter did not contain the smoking gun that Pikoli and his lawyers had expected. In part it reads (see paragraph 264 of Ginwala Report):

In view of the constitutional responsibilities of the president with regard to the Office of the National Commissioner of the police service, I deem it appropriate that you obtain the necessary information from the national director of public prosecution regarding the intended arrest and prosecution of the national commissioner. This would enable me to make such informed decisions as may be necessary with regard to the national commissioner.

I have always wondered about the authenticity of this letter. In the context of the known events,  the contents of this letter seem, to say the least, surprising. Pikoli had met Mbeki on 15 and 16 September 2007 to brief him on the Selebi matter and on his intention to arrest Selebi. Ginwala confirmed that at the first meeting on 15 September Pikoli informed Mbeki about the warrants obtained for the arrest of Selebi.

At this meeting on 15 September Pikoli was asked to prepare a report for the President on the impending arrest of Selebi, which Pikoli did. He handed the report to the President on 16 September and again discussed the matter of Selebi’s case with the President. Yet a day later Mbeki wrote a letter to the Minister of Justice asking her to obtain the necessary information from Pikoli about the intended arrest of Selebi – information which Ginwala found Pikoli had already provided to Mbeki the previous day.

What other information – not provided by Pikoli – did Mbeki need? The letter is rather vague and does not specify the nature of the information required by Mbeki. If Mbeki needed specific information not provided to him by Pikoli at the two meetings on the 15 and 16 September and in Pikoli’s report, why did Mbeki not stipulate in his letter to the Minister exactly what information he wanted to obtain?

Mbeki had been briefed 10 times about the investigation against Selebi. He had two meetings in two days with Pikoli about the arrest and also received a report from Pikoli about the arrest. Yet the day after these two meetings he wrote a letter in which he asked the Minister to obtain more information from Pikoli about the arrest without saying anything about the nature of the information required.

The Ginwala Inquiry Report may cast further light on the matter. After receiving the letter written by Mbeki on 17 September 2007, Menzi Simelane wrote a letter to Pikoli the next day (18 September 2007), which was signed by Minister Mabandla and sent to Pikoli. Ginwala comments as follows on this letter sent by the Minister to Pikoli (see paragraph 159 of the Report):

The letter prepared by the DG: Justice did not conform to the request from the President [in his letter] to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. . .The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

If I was an investigative journalist or a prosecutor, I would probe the necessity for the writing of this letter by Mbeki to Mabandla. Was it perhaps an after the fact fabrication to cover up a different letter written by Mbeki to Mabandla? I would wonder whether the “real” letter actually instructed Mabandla to issue an instruction to Pikoli to stop the arrest of Selebi (which would have been unlawful).

Remember, after receiving the letter from Mbeki, Simelane and Mabandla sent the letter to Pikoli which contained the instruction not to proceed with the arrest of Selebi. Why would the normally soporific and lethargic Minister suddenly ask her DG to write a letter containing an instruction which Ginwala found was probably unlawful, when all the President asked her to do was to get more information from Pikoli?

Why would Mabandla tell Pikoli on 23 September (when she asked him to resign and he refused and Mbeki then suspended him that same day): ”Vusi, it’s about integrity and one day I will speak” (see paragraph 281 of the Report)?

It does not make much sense to me. Could it be that poor Menzi Simelane drafted the letter (later signed by Mabandla) which ordered Pikoli not to arrest Selebi, because that is what the President had ordered them to do in a letter that was never produced at the Ginwala Inquiry and was replaced by a letter fabricated by the Presidency after the fact?

Of course, I have no idea whether this is what happened. I am not claiming that the letter provided to the Ginwala Inquiry was fabricated and have no hard evidence to suggest that it was. I am, however, posing questions about the events, which – in the light of all known facts – do not seem to add up.

In the light of the evidence that Mbeki was less than truthful about his knowledge about the investigation against Selebi, questions about what actually happened in those fateful few days will remain. Only Mabandla, Simelane or someone else in the Presidency could answer these questions and lay to rest the suspicions of duplicity at the highest level of government.

Who could have made up this stuff?

Jul 27th, 2010
by Pierre De Vos.
38 comments

What on earth is going on at the Brett Kebble murder trial? So far two state witnesses have testified that they were involved in the killing of former mining magnate and ANC Youth League benefactor, Brett Kebble. They claim it was an “assisted suicide” and that they were so bad at the job that they were only successful at killing Kebble on the third attempt. Who could have made up this stuff?

First, boxer turned hit-man, Mikey Schultz, testified that he had actually pulled the trigger (after several bumbling attempts), but that Glen Agliotti had nothing to do with the murder. They then “sped off” (but kept to the speed limit for fear of being caught on  a speed camera) and destroyed the murder weapon in a chop-shop before melodramatically dumping the pieces of the gun into the sea.

Then ex Transvaal rugby player turned gangster (what is it with these sportsmen – can we ask some of them to go to work on the All Blacks before the next Tri-Nations game?), Nigel McGurk, told the court of his involvement in several hits – including the Kebble hit – but again stated that Agliotti had nothing to do with the murder of Kebble. (McGurk, like Schultz, may not be a very good witness, as advocate Laurence Hodes, appearing for Agliotti, at one point told him: “You’ve got a memory like red wine, it improves over time”.)

Yet Glen Agliotti is the person standing trial for the murder of Brett Kebble, while the two people who actually now claim to have killed Kebble are state witnesses and may well obtain indemnity from prosecution if the court finds that they testified frankly and honestly about the murder.

(Advocate Gerrie Nel, the guy who secured the corruption conviction against former police chief Jackjie Selebi, was supposed to lead the prosecution in this case but Menzi Simelane decided at the last minute to replace him. Not surprisingly, the new prosecutors appeared unprepared to lead the evidence: the lead prosecutor Advocate Dan Dakana today were constantly told what to ask by his colleague Advocate Kholeka Gcaleka.)

In any event, this arrangement by the NPA to offer possible indemnity to Kebble’s killers in order to prosecute Glen Agliotti, who may or may not have been involved directly with the murder at all, does not – on the available evidence – seem very wise or fair.

Of course, the trial is far from over and it might yet transpire that Agliotti was the mastermind behind the murder of Kebble and that the NPA had every reason to cut a deal with the actual killers to get to the “big fish”. But if it is found that Agliotti was not involved or that his involvement was not central to the killing, many questions will be asked about the decision by the NPA to cut a deal with the very people who claim to have killed Kebble.

Whatever transpires, there was nothing illegal in the deal done by the NPA with Shultz and McGlurk. Section 204 of the Criminal Procedure Act allows the NPA to cut deals like this and if the judge finds that any witness has testified “frankly and honestly”, the judge may indemnify that witness from prosecution – even if the witness had incriminated him or herself in the very crime he or she is testifying about. The discretion to grant indemnity is in the hands of the judge, so if the judge finds that a witness has not been frank and honest, the judge may refuse to grant indemnity to that witness – regardless of any deal done between that witness and the NPA.

Could it be that the NPA is playing a very clever game to try and secure the conviction of all the main players in this drama? Did the NPA offer indemnity to the main killers, knowing that they would be such bad witnesses that they would not testify frankly and honestly, thus making it impossible for the judge to grant them indemnity and opening the way for their own prosecution? Probably not, because section 204(4) states that the self-incriminating evidence of a witness denied indemnity could not be used against him if that witness were to be tried later.

This means that if Schultz or McGurg is not granted indemnity and the NPA decided to prosecute them for the murder of Kebble, the NPA would not be able to rely on the evidence led in court over the past two days in which they had explained in detail how they had killed Kebble.

Unless the NPA has more evidence up its sleeve implicating Agliotti as the mastermind of the Kebble murder, the indemnity granted to all the other main players in this drama makes little sense. Unless, of course, this was done to put pressure on Agliotti to force him to testify against his old friend Jackie Selebi. “If you do not testify truthfully against Selebi and implicate him, we will prosecute you for the murder of Kebble, so you better testify.”

If this was indeed the case – and I stress, it is too early to say for certain that it was – then many questions will be asked about the manner in which the NPA acted in these matters and the wisdom of the deals it cut. Although it is very important for the state to prosecute very powerful people like Selebi on charges of corruption (after all, when the top cop in the country is corrupt, the whole criminal justice system becomes suspect), I am not sure that it would be more important than securing the conviction of the actual murderers in a murder case – even where the case is one of alleged “assisted suicide”.

Personally I will withhold judgment on this until the end of the Kebble trial. Who knows what other evidence will be led by the state to vindicate its decision to cut a deal with the very people who now claim to have pulled the trigger in order for the NPA to go after the man who was found to have bribed the top cop.

Whatever happens though, the case has already provided utterly bizarre and riveting testimony. Surely somebody at ETV (or one day when they have money again, the SABC) must be commissioning a drama series based on these events. It has everything: political intrigue; larger than life characters (some of them marginally known sportsmen), a murder victim who was alleged to have led a triple life, sex and scandal with the alleged involvement of a rent boy, and office politics in the NPA.

NOTE: Some of the details in this post were gleaned from the riveting Twitter feeds posted by the Mail & Guardian amaBhungane reporter following the Kebble trial. Find them at: http://twitter.com/amaBhungane.

What now for Menzi Simelane?

Jul 9th, 2010
by Pierre De Vos.
24 comments

What should one make of the report in todays Mail & Guardian that a subcommittee of the Johannesburg Bar has found there was merit in the complaint lodged against National Director of Public Prosecution (NDPP), Menzi Simelane, which alleged that he was not a fit and proper person? Simelane has now been afforded an opportunity to respond to the allegations in writing and is required to submit reasons why he should remain an advocate in good standing in light of adverse findings made against him by the Ginwala Inquiry.

Simelane was slammed by Ginwala as an unreliable and arrogant witness. His performance before the Ginwala Inquiry was up there with the performances of Glen Agliotti and Jackie Selebi during the trial of the latter. Ginwala also found Simelane may have been acting unlawfully when he drafted a letter for former justice minister, Brigitte Mabandla, instructing Pikoli to cease the investigation into Selebi until she was satisfied about the merits of the case.

A subsequent investigation into Simelane’s conduct at the inquiry by the public service commission (PSC) found he should have faced a formal hearing, but Justice Minister Jeff Radebe overruled this and recommended him to President Jacob Zuma in November last year to be appointed as Vusi Pikoli’s successor.

If the Johannesburg Bar finds that Simelane’s conduct made him unfit for membership of the Bar and he is struck off as a member of the Bar, it would in effect mean that he would have been ineligible for appointment as NDPP at the time of his appointment. Whether this would in fact happen, is of course far from clear.

Section 9(1)(a) of the NPA Act states that anyone can be appointed as NDPP who ”possess legal qualifications that would entitle him or her to practise in all courts in the Republic”. One therefore does not have to be a member of the Bar to be eligible to serve as the NDPP. One needs to have obtained the relevant legal qualification – usually an LLB – to qualify for appointment.

But section 9(1)(b) of the Act further states that one can only be appointed as NDPP if one is a “fit and proper” person. If Simelane is struck off as a member of the Bar by the High Court because he is no longer a fit and proper person, it would mean that a High Court had in effect found that Simelane does not possess the qualities specified in the law to have been legally appointed as NDPP.

At the very least, such a finding – if it is ever made – would bolster the application challenging the legality of Simelane’s appointment. If such a finding were ever to be made, Simelane would really have no other choice but to resign as NDPP. If this ever happened, it would leave very difficult legal questions unanswered as it would mean that Simelane’s appointment was unlawful when it was made. Minister Jeff Radebe and President Jacob Zuma would obviously be severely embarrassed by such a finding and questions will be asked about the motivation behind Simelane’s appointment.

And if such a finding is made, would that mean that all the decisions taken by Simelane as NDPP – including the decision to call off attempts to freeze the foreign assets of businessman Fana Hlongwane, who was allegedly a beneficiary of arms deal corruption – were null and void?

Maybe it is too early to worry about these matters. Simelane might provide the subcommittee of the Johannesburg Bar with excellent reasons why he is indeed a fit and proper person. He might argue – as he did at a public debate that I attended – that he was merely following instructions from the then Minister and the then President when he wrote the letter containing an illegal instruction and when he appeared before Ginwala and misled that Inquiry. Much like some Nazi’s after the second World War and police officers after the end of apartheid, he might argue that he was only following orders and should therefore not be blamed for what he did.

It would be interesting to see to what extent Simelane blames members of the previous administration for his troubles and what facts he will be prepared to put before the subcommittee to protect himself. Could we see some new revelations about what exactly happened after then President Thabo Mbeki decided to suspend Vusi Pikoli because he wanted to arrest Jackie Selebi?

Probably not. But this inquiry into Simelane fitness reminds us that his appointment as NDPP was one of President Jacob Zuma’s most troubling acts as head of State. Whether he is ultimately cleared or not, it is unfortunate that our NDPP, who – like Caesars wife – should really be beyond reproach, finds himself in a position where he has to answer questions about whether he is a fit and proper person as required by the law.

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