Constitutional Hill

Menzi Simelane

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.

On World Cup Courts and the prosecution of “criminals”

Jul 7th, 2010
by Pierre De Vos.
22 comments

While watching the Black Stars of Ghana being “cheated” out of a semi-final place at the Fifa World Cup by the very human hands of Luiz Suarez of Uruguay, one of my friends told us that he had just received an sms about the arrest of Paris Hilton for the possession of dagga at a World Cup game in Port Elizabeth. Poor Paris Hilton, I thought: why on earth was she stuck in Port Elizabeth?

It was later reported that Hilton (who – much like Julius Malema – has a certain knack for publicity) arrived at the courthouse about 30 minutes after being arrested and charged. While she waited for the hearing, people with FIFA badges were seen bringing her seven pizzas, 12 cold drinks and six waters in an antechamber. (A more innocent person than myself might have wondered why she was so hungry at that time of the night.) The charges against her were then dropped.

Hilton was lucky. Themba Makhubu, a 22-year-old Johannesburg man, was sentenced to five years imprisonment for stealing a cellphone from a World Cup visitor. Bright Madzidzi, 20, and George Magubane, 28, were sentenced to 15 years imprisonment for robbing Spanish and Portuguese visitors. No force was used during the commission of either of these crimes.

One could ask many questions about these different events. Why is it still a crime to possess small quantities of dagga? Did Paris Hilton get special treatment because she was famous? (One assumes Mr Madzidzi and Magubane were not given any pizza after their arrest.) Why did the World Cup Courts impose such harsh sentences on those convicted? Were the rights of the accused (to be presumed innocent and to get a fair trail) not trampled upon? And why was it possible to investigate and successfully convict these accused when many criminal cases drag on for many months and even years in our ordinary courts? Can we learn something from the experience?

Of course, in South Africa (as in many parts of the world) rich, famous or politically well-connected persons who are accused of committing criminal offenses, are usually not treated in the same manner as other accused persons who might not have the money to employ lawyers and are arrested and tried far from the media spotlight. Having a lawyer helps to ensure that one is treated with some dignity. It also helps to ensure that one’s Constitutional rights are not trampled upon. Without a well-functioning and extensive system providing legal aid to accused persons (something that is lacking in South-Africa), the  rich and famous will inevitably be favored – whether they are tried by World Cup Courts or by any other Courts.

But if we accept this sad fact as given, it must be said that, on paper at least, there should be nothing amiss with the justice meted out at the World Cup Courts. Accused persons tried in these courts have exactly the same rights as any other person tried before the courts. They are presumed to be innocent until proven guilty and is entitled to a fair trial. Some of the sentenced handed out at these courts do seem excessive and I suspect that many of the sentences will be reduced in the event of appeals.

What the quick justice meted out at the World Cup Courts underline, is that where the political will exists to deal decisively with the investigation and prosecution of crime, huge improvements in the effectiveness of the criminal justice system will ensue. More money is of course needed. But a more effective use of existing resources will also make a difference.

Will we learn this lesson? Will there be more political pressure on the police to investigate crimes that are committed? Will the police be better managed and supported to help them to up their game? Will the management of courts and of case loads be improved to try and emulate the World Cup Courts experience? Will the police receive better training so that they will be able to do the hard work of investigating cases and of properly gathering the evidence required to secure conviction? Is there a chance that the politicization of the criminal justice system will be reversed?

I wish I could have answered in the affirmative to these questions. Sadly, both the present heads of the police service and of the prosecuting authority were appointed because of their political connections rather than because of their knowledge of the law, their management abilities and their understanding of policing and prosecution. This means that the chances are rather slim that we will learn any of the lessons we could have from the World Cup Court experience.

Hopefully I am wrong. Perhaps both Bheki Cele and Menzi Simelane will grow into their jobs. Perhaps they will learn to leave their political allegiances aside and will work tirelessly to improve the criminal justice system to make it both more effective and more fair.

Then again, given the events of the past few years, I am not optimistic. The NPA Head was fired exactly because he wanted to put political allegiances aside while the Police Commissioner was at first protected because he did not.

Meanwhile the Paris Hilton’s of our world (including politicians and their friends) will probably continue to enjoy special treatment while the rest of us will look on helplessly.

Selebi conviction leaves many questions unanswered

Jul 2nd, 2010
by Pierre De Vos.
51 comments

The conviction this morning of former Police Commissioner, Jackie Selebi, on charges of corruption leaves many questions unanswered. Judge Meyer Joffe found that Selebi had received substantial amounts of money from gangster Glen Agliotti and then did favors for Agliotti, including showing him a top secret document which contained substantial sections of the the national intelligence estmate. Joffe also found that Selebi had been a very bad witness who fabricated evidence and lied to the court.

Not that Agliotti was a much better witness, but in as much of his testimony was corroborated by other witnesses, the court found that he had to be believed and not Selebi.

The conviction must place a question mark over the actions of former President Thabo Mbeki, who appointed Selebi, at first took steps aimed at protecting Selebi and claimed that there was no evidence of wrongdoing on the part of Selebi even after Mbeki was briefed by the National Director of Public Prosecutions (NDPP) about the evidence against the former top cop.

Why was Mbeki so adamant that Selebi should not be arrested? Why did Mbeki ask us to trust him on Selebi and why did he maintain – in the face of overwhelming evidence provided to him –  that there was no evidence to suggest that Selebi was a crook? Why did he appoint this guy in the first place? Does it not show- at the very least –  a spectacular lack of judgment on the part of our former President?

One should also ask if Selebi would ever have been investigated and prosecuted by the Police and whether he might not have still been our Police Commissioner had it not been for the Scorpions. If the now defunct Scorpions had not taken on the case, the chances are that we would never have known that Selebi was a crook. The conviction of Selebi thus underlines the sheer folly of the decision to abolish the Scorpions.

During Selebi’s trial it emerged that several members of the Police Service tried to assist Selebi to prevent him from ever facing charges of corruption. The prosecutor was arrested and acting crime intelligence boss Mulangi Mphego intervened to secure testimony from Agliotti to weaken the case against Selebi. But it is not entirely clear to what extent the Police tried to protect a now convicted crook from prosecution.

Meanwhile Menzi Simelane has dropped all charges against Mphego relating to the Selebi case. Why was this done? Who is being protected? Can one trust Simelane to have dropped the charges purely for legally sound reasons? The conviction of Selebi suggest that the decision to drop all charges against Mphego was at best dubious.

For the conspiracy theorists, or even for those merely skeptical of the integrity of the Police, questions must now also be posed about the role of Selebi and other members of the police in the investigation into the murder of Brett Kebble. Selebi was called from the scene of the crime and it is alleged that he allowed Kebble’s car to be removed from the crime scene before the police could gather the required forensic evidence. Was Selebi protecting anyone when he allegedly did this?

At Kebble’s funeral then President Mbeki’s side kick and enforcer, Essop Pahad, bizarrely said that “what Brett said to any of us in private should remain private”. It is well-known that Kebble bankrolled the ANC and questions will inevitably be raised about the link between Selebi, Kebble, Mbeki and the financial dealings of the ANC and some of its members. Whether Selebi and others are hiding anything is, of course, unclear.

Lastly, the conviction underlines the fact that the relevant piece of legislation on corruption – passed by the ANC dominated Parliament – is excellent. Where a political will exists to investigate and prosecute corrupt individuals, whether they are politicians, state officials or private businesspeople, the legislation will provide sufficient legal backup to secure convictions. In that sense, the prosecution and conviction of Selebi is remarkable: I suspect in most countries in the world the top cop would never have been investigated and convicted of corruption – no matter how crooked he might have been.

The question does arise though, whether there is sufficient political will on the part of the Zuma administration to ensure that this act will be utilized properly to help stamp out corruption in both the public and the private sector. Given the fact that President Zuma himself only escaped prosecution for corruption through the shenanigans of the NPA, this is sadly far from clear.

Political will is key to fighting corruption. If we see more high profile cases of private and public corruption brought to court, we will know the Zuma administration is serious about stamping out corruption. If we do not, we will know that it is rotten to the core.

Another twist in Zuma corruption case?

Jun 8th, 2010
by Pierre De Vos.
32 comments

Lawyers for President Jacob Zuma and the NPA are deploying all the technical legal arguments at their disposal to try and prevent the DA from obtaining all the documents on which the Acting Natonal Director of Public Prosecutions (NDPP), Mokothedi Mpshe, relied when he made the decision to drop all charges against President Jacob Zuma. Their strongest technical argument – in-between the grandstanding and the irrelevant political broadsides – is that the DA has no standing in the case because no constitutional right is in issue and the DA has no direct interest in the case.

If one alleges that a right in the Bill of Rights has been infringed, then the very broad provisions of section 38 will kick in and the DA will clearly have standing to challenge the decision. This section allows anyone to approach the court, whether they are acting in their own interest; acting on behalf of another person who cannot act in their own name; acting as a member of, or in the interest of, a group or class of persons;  acting in the public interest; or an association acting in the interest of its members.

That seems to be one of the reasons why the DA is alleging that the decision to drop charges against Zuma was reviewable in terms of the Promotion of Administrative Justice Act (PAJA). Section 33 of the Bill of Rights guarantees for everyone the right to administrative action that is lawful, reasonable and procedurally fair. If the decision to drop charges is reviewable under the PAJA, it would implicate section 33 of the Bill of Rights as PAJA “operationalises” this section. That would mean that the DA would clearly have standing, given the broad parameters of section 38 set out above.

However, if a court finds that the decision is only reviewable on the grounds that the NPA had not acted in terms of the law and the Constitution when it dropped the charges against Zuma (because it failed to adhere to its own prosecuting policy, which it is constitutionally required to do), then the question of whether the DA has standing to challenge the decision becomes legally more interesting.

That is not to say that one could not argue that the DA would have standing – even if this is a Rule of Law issue and not an administrative law issue. Where a supposedly independent institution like the NPA fails to uphold the Rule of Law and drops charges against the leader of the majority party on spurious grounds, one could argue that the official opposition would be directly affected. If such an opposition party, who professes to adore the Constitution (unless the abolition of the death penalty is involved, in which case all bets are off), cannot bring an application to uphold the Constitution, who can?

Besides, so the DA might argue, how could it compete fairly in the political arena if an independent constitutional body like the NPA fails to act without fear, favor or prejudice against members of the governing party? Surely minority parties have a direct interest in upholding the Rule of Law, because without respect for the Rule of Law, they stand very little chance of ever convincing the public that some leaders in the governing party are corrupt and may have abused the Constitution. And if they cannot do that, how will they get the majority of voters to vote for them?

Of course, whether it is in the interest of the DA to have President Zuma prosecuted is another matter. Cynics might argue that it is in that party’s interest to ensure that Zuma remains President for as long as possible – what with his family troubles, his inability to lead, and his apparent inability to impose his authority on the fractious tripartite alliance members.

And given the fact that the DA – like the ANC – contains its fair share of old National Party members and is generally perceived – unlike the ANC – to hold values that are not shared by the majority of South Africa’s voters, the DA is probably not going to convince too many ANC voters to vote for them – even if they can get the NPA to adhere to the Rule of Law, to act independently and to prosecute Zuma.

As yet I have no firm views on whether the President and the NPA will be successful with this technical argument about the right of the DA to bring the review application. There might well be a judge somewhere who finds the arguments of Zuma and the NPA persuasive. What I do know is that the assertion made by President Zuma’s lawyer that he cannot be charged because he is a sitting President, has no basis in law and is obviously not tenable. This assertion will only become true if the Constitution is amended to indemnify a sitting President from prosecution. This is because such an indemnity would constitute a fundamental breach of the principle of the Rule of Law and at present it would thus be unconstitutional.

More interesting for me is the question of whether there is any use in spending all this money in trying to have the original decision of the NDPP set aside. Given the fact that President Zuma has appointed Menzi Simelane as NDPP and Simelane is about as likely to prosecute Zuma as Bafana Bafana is likely to win the World Cup by beating Brazil 6-0 in the final, one may ask whether the DA is not wasting its time and money with this application. Even if it wins the case, it will be a pyrrhic victory as Simelane will almost certainly revisit the decision and will surely decide not to prosecute the President.

He will be able to point to a country like France, where articles 67 and 68 of that Constitution makes clear that the President of the Republic enjoys immunity during his term of office. In France the sitting President cannot be requested to testify before any court and cannot be prosecuted either. However, the statute of limitation is suspended during his term, and enquiries and prosecutions can be restarted, at the latest one month after he left office.

Simelane will be able to point to such provisions and will then be able to argue that it is not in the national interest to charge a sitting President. The President, so the argument might go, will spend all his time in court (or dealing with family trouble) and will have no time to govern the country and that would not be in the “national interest”.

But this does not mean that – from the DA perspective – this application is not worth pursuing. If the party can lay its hands on the report by the prosecutor in the Zuma case which sets out in great detail why he believes there is a winnable case against President Zuma, it will severely embarrass the majority party and its leader. Zuma would be weakened and this might benefit the DA in that many ANC voters will become (more?) disillusioned with the ANC and might stay home come the next election.

Zwelenzima Vavi, who turned a blind eye to the credible allegations of corruption against President Zuma and refused to admit that Zuma had a case to answer, might be forced to rethink his position as well. After all, he berated Zuma last week for not investigating far less credible claims of corruption leveled against some of the Ministers in Zuma’s cabinet. If Mr Vavi was consistent, he would have to insist that the very strong case against Zuma be brought to court so that a court could once and for all decide whether our President is corrupt or not.

I wonder whether that is not the real reason for the President and the NPA’s legal maneuvers. They would surely want to prevent the DA from obtaining documents that would remind the people of South Africa that prosecutors in the NPA believe the President is guilty of corruption. Now that Thabo Mbeki is no longer President (and hence, no longer a handy enemy to rail against to help rally the troops) and the Polokwane alliance is showing signs of disintegrating, this is the last thing that Zuma can afford.

Who knows? One thing is certain though, even if the NPA loses these preliminary skirmishes, they (along with the President’s lawyers) will surely go on fighting tooth and nail to stop the DA from obtaining the relevant documents. After all, as Bill Clinton found out during his second term in office: the truth can be a rather bothersome thing to deal with – even for a President.

Zuma: He is fit and proper because I say so – now shut up

May 21st, 2010
by Pierre De Vos.
117 comments

When is a lawyer not a “fit and proper” person and when does a lawyer not have “integrity”? If, say, a lawyer had deliberately misled an Inquiry set up by a previous President in terms of legislation, if that lawyer had drafted a letter that contained an unlawful instruction to the head of an independent body and had thus probably commited a criminal offense, if that lawyer was humiliated and his credibility absolutely destroyed under cross examination during the Inquiry, is that lawyer still a fit and proper person with integrity – as long as the President and the Minister of Justice say so?

Apparently that is what President Jacob Zuma and his lawyers believe. They contend that when our President says that somebody is “fit and proper” and is a man of integrity – regardless of the objective, proven, facts – it is legally true. In his answering affidavit in the case challenging the appointment of the purported National Director of Public Prosecutions (NDPP), Menzi Simelane, President Jacob Zuma argues that the requirements – set out in the National Prosecuting Authority Act – that the NDPP must be a fit and proper person (and hence must be a person of integrity), are subjective requirements not capable of determination by  court of law.

In the following astonishing passage the President seems to reveal a disturbing belief that he IS the state and is thus not bound by the requirements of the law that are explicitly made applicable to him.

Whether a person is fit and proper to be entrusted with the responsibilities of the office concerned is my subjective decision. I am the person, as the President of the Republic, to be satisfied that the person is fit and proper. In doing so I have to take cognisance of his/her experience, conscientiousness and integrity.

This is so absurd and laughable (but also dangerously anti-democratic) that I am quite surprised that any lawyer would have risked ridicule and humiliation by  offering it up in all seriousness to a court of law. The requirements set out in the NPA Act that the NDPP must be a fit and proper person and hence a person of integrity, are clearly NOT subjective in nature.

There might be room for debate about whether a person is fit and proper and has integrity, but the principle of legality – which is part of the Rule of Law – requires the President to comply with these requirements set out in the Act. The President cannot have an absolute authority to decide what these requirements should mean because then the requirements would become irrelevant and the law would make no sense. Then we have rule by dictate and not by Parliament.

To hold otherwise – as the President and his lawyers want to do – would mean the President could appoint a mass murderer as NDPP. He could appoint someone who has defrauded thousands of South Africans out of their money, who has raped his wife, who had issued fraudulent cheques or had been involved in gang activities and drug running. The assertion by the President is that any such person would be legally fit and proper merely because he says so! This is not only wrong, it is also scary. Who think up these arguments? Clearly people with a very tenuous grip on reality and no grip on the law.

What is required is to ask from the objective standpoint of a reasonable and informed person, whether there will be a perception that the NDPP is not fit and proper and is not a man of integrity. Bearing in mind the diversity in our society this means that the perception here must be based on all relevant material information: we must ask how things appear to a well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical and suspicious person.

The well-informed, thoughtful and objective observer must be sensitive to the country’s complex social realities, in touch with its evolving patterns of constitutional development, and guided by the Constitution, its values and the differentiation it makes between different institutions and the need for the NDPP to act without fear, favour or prejudice (in other words, the need that the NDPP should act honestly and with integrity and not like a mafioso or a gangster).

Using this test – and not the subjective one offered by the President and his lawyers – Simelane’s appointment can surely not be said to have been lawful. This we know from the Ginwala Inquiry and the subsequent report later used by the government to justify the unlawful firing of Vusi Pikoli. (It had to pretend that Inquiry made a finding it never did to achieve this result, but it did claim at the time that it was relying on the factual findings on the Ginwala report and therefore never disputed the accuracy of the findings in the Ginwala Report – the same report it now says it is allowed to ignore.)

The President claims that everything that happened at the Ginwala Inquiry and the Report produced by Ginwala can be ignored by him because this was not a judicial commission of Enquiry but merely “a fact-finding exercise”. He does not claim that Ginwala got it wrong. Neither could he claim this, as Simelane had a chance to give his side of the story before the Inquiry and was then cross-examined by a competent lawyer who proceeded to expose him as a fraud and a liar. So the President is really claiming that he can ignore both the law and the facts – as clearly established by a legal Inquiry – because he is exercising an Executive function and because the body that made the factual findings was not judicial in nature.

This is sophistry of the highest order. The fact that the President is offering these arguments means either that he and his lawyers are so ignorant and hubristic that they think they will get away with it, or that they have realized that they are in deep trouble and that the purported appointment of Simelane cannot be defended on factual and legal grounds at all.

But let us recall why Simelane is not a man of integrity and why he is thus not fit and proper and could therefore not have been appointed lawfully as NDPP by the President.

Ginwala found that Simelane deliberately withheld legal opinions from Adv Pikoli and the Inquiry. By persisting in this conduct he misled the Inquiry. Let me quote from the Report (and remember, no one has disputed the factual accuracy of these findings – not because they were lazy but because they can’t dispute the facts, many of them admitted to by Simelane under cross-examination).

It is unacceptable that the DG: Justice elected not to heed the legal advice that he sought and obtained from senior counsel relating to the relationship between his office and the NPA. The legal advice furnished to him clearly shows that his accounting responsibilities over the NPA were limited and did not extend to the areas of responsibility that he claimed. Not only did he ignore this legal advice; he did not share it with Adv Pikoli and he also did not disclose it to the Enquiry when it was his responsibility to do so – not even after it was requested. He attempted to suppress the disclosure of the information that was of significance to the work of this Enquiry. He only acknowledged the existence of these legal opinions when they were presented to him by Adv Pikoli’s legal representatives during his cross examination.

And later on in the Report this:

I must also state that I have found the conduct of the DG: Justice highly irregular. His failure to include all the relevant material at his disposal in the original submission by Government was not consonant with the responsibilities of a senior state official furnishing information to an investigative enquiry established by the President. He had a duty to place all relevant information before the Enquiry. His testimony before the Enquiry was also not particularly helpful to me; his evidence was contradictory and I found him to be arrogant and condescending in his attitude towards Adv Pikoli.

Later on the Ginwala Report says the following about Simelane:

The DG: Justice did not heed the legal advice he had sought and received, and continued to assert powers he did not have. His personal view informed the complaints against Adv Pikoli that formed part of Government’s submissions to the Enquiry. For that reason he made statements in his evidence in chief that he was forced to retract under cross examination.

It was also only during his cross examination that it emerged that the DG: Justice prepared the letter dated 18 September 2007 from the Minister to Adv Pikoli. It is in this letter that the Minister requires Adv Pikoli to supply her with all the information that Adv Pikoli relied upon to take the legal steps to effect the arrest of and the preference of charges against the National Commissioner of Police. The letter prepared by the DG: Justice did not conform to the request from the President 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 Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

And yet later Ginwala further demonstrates why Simelane is not a man of integrity and hence that no reasonable person would be able to conclude that he is fit and proper:

I must express my displeasure at the conduct of the DG: Justice in the preparation of Government’s submissions and in his oral testimony which I found in many respects to be inaccurate or without any basis in fact and law. He was forced to concede during cross-examination that the allegations he made against Adv Pikoli were without foundation. These complaints related to matters such as the performance agreement between the DG: Justice and the CEO of the NPA; the NPA’s plans to expand its corporate services division; the DSO dealing with its own labour relations issues; reporting on the misappropriation of funds from the Confidential Fund of the DSO; the acquisition of new office accommodation for NPA prosecutors; and the rationalisation of the NPA.

All these complaints against Adv Pikoli were spurious, and are rejected without substance, and may have been motivated by personal issues. With regard to the original Government submission, many complaints were included that were far removed in fact and time from the reasons advanced in the letter of suspension, as well as the terms of reference. This further reflects the DG: Justice’s disregard and lack of appreciation and respect for the import for an Enquiry established by the President.

With these undisputed factual findings in the public domain one thing emerges quite clearly. When the President appointed Simelane he appointed him despite the fact that Simelane was not fit and proper as required by the law. If the President is a reasonable person, he deliberately flouted the requirements of the law. If he is not a reasonable person it must mean that he appointed Simelane for an ulterior purpose. We all know what that ulterior purpose might be.

No wonder President Zuma and his lawyers had to embarrass themselves by making absurd and untenable legal and factual assertions in this answering affidavit. When one starts on the road of unlawfulness and deceit, it is sometimes difficult to keep one’s story straight.

Radebe cannot tell Simelane what to do

May 12th, 2010
by Pierre De Vos.
103 comments

What can be done about Menzi Simelane, the National Director of Public Prosecutions (NDPP) who seems to be ”restructuring” the NPA into a big mess? Mr Simelane seems to have a rather unique management style: he seems to have a sharp eye for identifying all the individuals and units doing their jobs properly, then he removes them from their jobs. If I was more of a conspiracy theorist I would have been wondering whether he is being paid off by criminals to ensure the destruction of the NPA and the criminal justice system.

At the rate Simelane is proceeding, he will have made sure that the NPA is completely useless by the time he is finally fired, or falls on his sword or is removed by the Courts because he is not a  fit and proper person (having lied to an Inquiry and having displayed a shocking lack of knowledge and understanding of, and respect for, the Constitution and the jurisprudence of the Constitutional Court).

After indulging in what seems to have been several unfair labour practices (by unilaterally changing the job description of top prosecutors), he has now completed the “restructuring” of the Specialised Commercial Crimes Unit (SCCU) by sidelining its head Chris Jordaan. Reports say the unit has in effect been disbanded. The SCCU has always had a conviction rate of above 90% – unlike other units of the NPA with a far less successful record - so why it needed to be “restructured” is anyone’s guess. In any case, this must be good news for white collar criminals, whether they are private sector tenderpreneurs or other cronies of the mighty and influential.

All this happened despite assurances to the contrary from Justice Minister Jeff Radebe. After Simelane announced this brilliant new scheme to improve efficiency, he was told by Radebe in a meeting on 29 April to put on hold the restructuring of the SCCU and three other specialised units within the NPA. But news reports suggest that Jordaan had left his office and been moved to the NPA head office in Pretoria. The staff of the SCCU had also been assigned to provincial directorates of prosecution and the unit, with its success rate of 93.7% at last count, was no longer functioning in its original capacity.

This will all be sold as part of the transformation of the NPA, but I am rather suspicious that this is the real reason for the decimation of the NPA. Given Simelane’s history and his demonstratble lack of  honesty and commitment to the Constitution, I fear the worst. Even if this rather peculiar “restructuring by demolition” is part of a much needed transformation plan, he is sure as hell going about it in exactly the wrong way – as the Minister of Justice has acknowledged.

In all of this, what remains rather comical is the clamouring of the Democratic Alliance (DA) that Minister Jeff Radebe should intervene to stop Simelane from doing further damage to the already damaged NPA. The DA – correctly, I have previously argued – insisted that the NPA was independent and that it was required by the Constitution to act “without fear, favour or prejudice”. The DA had complained bitterly before about the perceived interference of the Minister of Justice with the work done by the NPA and with the decisions of the NDPP.

It is a bit rich then for the DA to insist that the Minister should intervene to stop Simelane from doing his job. What the DA is saying is that the NPA is only independent when it suits them – otherwise it should take instructions from the Minister. This cannot be. Simelane is obviously doing his job very badly, but if the NPA is independent – as the Constitutional Court confirmed and as the NPA Act makes clear – then the Minister cannot give instructions to Simelane on how to run the NPA.

Because the Minister has to take final responsibility for the NPA, he can request all the information about the planned restructuring of the NPA to appraise himself of what Simelane is up to and to explain this to his colleagues and to Parliament. He is also perfectly entitled to meet with Simelane and to discuss “various management challenges” (a wonderful South African phrase for a “cock-up”) with him. However, because the NPA is independent (after all the Constitutional Court said so) the Minister cannot give any instructions to Simelane on how to run the NPA. If he does, he would be interfering with the independence of the NPA as guaranteed by the Constitution.

Maybe Minister Radebe is now discovering to his consternation that the appointment of Simelane was not such a great idea. But President Zuma has appointed Simelane and we are now stuck with him for his full tenure - unless he fails so spectacularly to do his job that he becomes unfit for office, in which case he can be fired after the correct procedure prescribed in the NPA Act is followed.

These are unpalatable facts and one has to be principled to face up to them. Sadly the DA seems to be less than principled on this score.

The princess and co-operative government

May 4th, 2010
by Pierre De Vos.
31 comments

In a weekend newspaper the argument was made that the Minister of Defence, Lindiwe Sisulu, had every right to boycott the Standing Committee on Public Accounts (Scopa), and that she could not be summonsed by Scopa to appear before it. This was, according to the writer, because all the provisions of the Constitution (including those that state explicitly state that cabinet ministers are accountable to Parliament and that Parliament can force anyone to appear before it) had to be read holistically against the background of chapter 3 of the Constitution.

Unfortunately this argument is clearly wrong-headed as it completely misconstrues the nature of the co-operative government provisions set out in chapter 3 of the Constitution.

Co-operative government is often referred to by members of the executive or other role players in order to justify interference with the work of independent bodies like the IEC or the NPA or in order to escape accountability and scrutiny. It is as if these provisions only apply to others and not to themselves (a bit like a King or Queen – or perhaps even a princess – of old who could say: “the law only applies to my enemies”). The Ginwala Inquiry made much of the fact that the NPA was an organ of state that was bound by the provisions of chapter 3 and therefore that the NPA had a constitutional duty to co-operate with the President and hence to obey his request not to arrest Jackie Selebi, completely missing the point that the President was also bound by the same provisions and was required to co-operate with the NPA.

(By the way, why has no journalist contacted former President Thabo Mbeki to ask him why on earth he defended Selebi so vigorously, why he wanted to stop his arrest at all cost, and whether he now regretted this, given the fact that Selebi has now been made the laughing stock of the nation after his hilarious cross-examination by the state?)

In any case, the sections in the Constitution on co-operative government are important as it influences the nature of intergovernmental relations in our democracy and ensures that the unitary character of our state is not threatened while it safeguards the rights of the various spheres of government. Sadly these sections are often misunderstood and are also sometimes abused by those who wish to make some or other political point. It might therefore be helpful to reflect on the nature of our system of co-operative government. Those who invoke the concept do not always realise that it applies equally to all role players.

Section 40 of the Constitution states that the government is constituted of national, provincial and local spheres that are “distinctive, interdependent and interrelated”. This means that different spheres of government (national, provincial and local) have distinctive powers and tasks but that they are required to work together in fulfilling their tasks because they are all part of the same unitary state. It does not mean they have to agree with each other or that institutions or individuals in one sphere with distinctive and exclusive powers have a duty to obey instructions from institutions or individuals in another sphere. A national Minister cannot order the mayor of a City to ensure that the road in front of her house is repaved, nor can she instruct the Premier of a Province not to close a specific hospital.

Section 41 states that all spheres of government and all organs of state within each sphere of government must, inter alia: respect the constitutional status, institutions, powers and functions of government in the other spheres…  and co-operate with one another in mutual trust and good faith by: fostering friendly relations; assisting and supporting one another; informing one another of, and consulting one another on, matters of common interest; co-ordinating their actions and legislation with one another; adhering to agreed procedures; and avoiding legal proceedings against one another.

This means that each of the role players must do its work diligently and in accordance with the Constitution and the law and should not connive to undermine the other institution or individual who are doing their job. Where a dispute arises, the parties should try and sort it out and should not run to the courts without first trying to find an amicable solution in the spirit of co-operation.

In the case of Minister Sisulu, this means that Scopa should diligently and in accordance with the Constitution play its oversight role by holding Ministers politically accountable for the spending of money in their departments. This would often mean that Ministers will be invited to appear before them to provide information, answer questions and take political responsibility (along with some political heat) for what happens in their departments.

This is at the heart of the various provisions that provide for Parlaimentary oversight over the executive. As part of the system of checks and balances, Parliamentary Committees are empowerd by the Constitution to give members of the executive a hard time and even to embarrass them politically – it is all part of the system of separation of powers.

The Minister in turn has a Constitutional duty to account to Scopa and will have to appear and will have to account politically for the spending of money in her department. She cannot avoid this by refering to the provisions of co-operative government as these provisions do not water down the powers and functions of each distinct entity – it merely requires them to try and sort out their differences amicably.

Where the Minister refuses to assist Scopa in the exercise of its constitutionally mandated oversight function and where she refuses to be held accountable by Scopa, she is indeed in breach of the provisions of Chapter 3 as well as several other provisions of the Constitution that requires her to account to Parliament. Even then, Scopa must try and resolve this outrageous breach of the Constitution amicably. However, if the Minister point blank refuses to appear before Scopa, despite being legally and constitutionally required to do so, Scopa as a last resort has every right to summons the Minister. Nothing in chapter 3 of the Constitution prohibits this. It is rather peculiar, to say the least, that one would argue that the Minister would be able to rely on chapter 3 of the Constitution to justify her unconstitutional behaviour.

The problem with many people’s understanding of the co-operative government provisions in the Constitution is that they fail to grasp that every sphere of government and every organ of state have a duty to do what they are legally mandated to do and all others have a duty to respect this. The provisions of chapter 3 do not allow one sphere of government to act unconstitiutionally or to try and interfere with the constitutional duties of another.

Where, say, the NPA fulfils its duty to prosecute without fear, favour or prejudice – as Vusi Pikoli did with the issuing of an arrest warrant for Jackie Selebi – then the other spheres of government (including the President) has a duty to support him in this. If there is some disagreement about how this needs to be done, the parties must meet and discuss this and must try and find a solution (as Pikoli did with the Selebi fiasco), but because their roles are distinct, the one cannot tell the other how to do its job. That is why the letter wrtitten by Menzi Simelane and signed by the then Justice Minister ordering the NPA not to arrest Selebi was exhibit A in the case against Simelane who might very well have breached the NPA Act for which he could have been sentenced to 10 years in prison.

Co-operation does not mean usurpation. Neither can it mean that some organs of state will be allowed to abuse their powers to frustrate others from doing what they are constitutionally required to do. It thus means that a good-will effort must be made by all concerned to exercise their functions in a manner that is going to be in harmony with the exercise of other functions. Where this seems utterly impossible after good faith efforts have been made, well, see you in Court Minister Princess.

R.I.P. National Prosecuting Authority?

Mar 30th, 2010
by Pierre De Vos.
57 comments

Ordinarily it is unwise to jump to conclusions based on unconfirmed news reports. At the same time, when those reports seem to confirm one’s worst fears and dovetail neatly with everything one knows about the person reported about, it is difficult not to assume the worst. I fear, I assume the worst about my old friend Menzi Simelane.

That is why The Mercury report that as many as five top prosecutors have been demoted, does not come as a shock at all. Reading the news report, my first reaction was: “Well, duhh, I told you so.” After all, when Menzi Simelane was purportedly appointed as the National Director of Public Prosecutions (NDPP), I pointed out the blindingly obvious fact that he is a craven and unprincipled bootlicker of the powerful and wealthy. We know – because he had shown this himself – that he would do almost anything to please his masters.

Although the NDPP is constitutionally required to act without fear, favour or prejudice, Simelane has demonstrated a canny ability to act WITH fear, favour and prejudice when required to do so by the powerful wielders of political power. He was unfit for office when he was appointed as NDPP and he has proven himself unfit for that office over and over again after his appointment. (Only the President seemed to think differently at the time, but let’s face it, our President is not a very good judge of character and ability – after all, he befriended crook and fraudster Schabir Shaik!) President Zuma’s cynical and Machiavellian move to appoint Simelane as NDPP demonstrates that underneath the smiling and bumbling exterior, there is a rather unprincipled and ruthless man who is out to protect himself at any cost.

We all know that Simelane is a deeply flawed man whose ethical compass seemed to have gotten lost long ago – perhaps shortly after he first assumed a powerful position and started obeying orders from his party bosses. Many of us also feared that it would only be a matter of time before he destroyed any integrity the NPA might have had left. After all, he wrote a letter containing a criminal instruction to stop the arrest of the erstwhile police commissioner and disgraced himself before the Ginwala Inquiry by trying to hide evidence and by trying to mislead the Inquiry – only to be ruthlessly exposed as a liar under cross-examination by Advocate Wim Trengove.

He also decided to drop the case of the Asset Forfeiture Unit (AFU) against Fana Hlongwane, a well-connected businessman, who received millions from the arms deal and is a generous financial supporter of the ANC, despite the fact that the lawyers of the AFU believed they had a strong case against Hlongwana. The reasons given by Simelane for the dropping of the case are so absurd that they read like a Groucho Marx routine.

So, that is why I was not surprised to read that Simelane had purportedly demoted five senior prosecutors, an act that is expected to lead to major delays in court and may lead to legal action being taken. As The Mercury reports:

One of the men in the prosecution team in the rape trial of President Jacob Zuma has effectively been given the responsibilities of a clerk, says the report. Another chief prosecutor, Andre Lamprecht, with 33 years of experience, has been demoted to an ordinary prosecutor. Lamprecht, who was in charge of five courts in Soweto and the West Rand, was demoted after he refused to obey an instruction from Simelane not to oppose bail for hip-hop musician Molemo Jub Jub Maarohanye. Lamprecht, who is due to be replaced by Xoli Khanyile, is considering taking legal action against his ‘deployment’. Khanyile is currently a Deputy Director of Public Prosecutions in Gauteng.

If this is true, it is spine chilling stuff. If a prosecutor involved in the rape trial of President Zuma had really been demoted, it would suggest that Simelane is taking revenge on behalf of his political boss by demoting a prosecutor who merely did her work. It would make Simelane a thoroughly dangerous man. One assumes Simelane would present some half-baked reason for such moves. Some might even believe him. Given the fact that he has been economical with the truth before, I will be a bit more sceptical.

Then there is news from the Free State that three of the most senior Deputy Directors of Public Prosecutions in that province are heading back to the lower courts. Retha Meintjes SC, George Baloyi and Connie Erasmus have all been informed about their new duties in the Soshanguve, Mamelodi and Pretoria Magistrate’s Courts respectively. Meintjes is recognised internationally for her role in prosecuting cases of violence against children and women.

Baloyi is the provincial spokesperson of the NPA due to his seniority and Erasmus was involved in several disciplinary proceedings in the office of NPA head Menzi Simelane. The report says 11 of the most senior prosecutors will soon hear that they, too, are heading for the lower courts. NPA spokesperson Bulelwa Makeke said the ‘moves’ are in line with the NPA’s policy to better the quality of prosecutions in the lower courts. Baloyi said he would comment ‘when the time is right’.

Sadly, I don’t believe a word of the explanation proferred by the NPA spokesperson. Sending the most senior prosecutors back to court is like sending the Vice Chancellor back to the class room or sending the Police Commissioner out on the beat. One usually only does this kind of thing if one wants to get rid of the person involved. My suspicion is that these people have been moved because they are either too competent or too ready to act without fear, favour or prejudice for the liking of the NDPP.

Given what we know of Simelane, and given his recorded statements about the role of the NPA and its relationship with the executive, it is difficult not to conclude that he is deliberately and ruthlessly destroying any independent capability in the NPA to ensure that the NPA remains politically pliant in order to protect powerful ANC politicians from prosecution. And then he wants us to trust him. Fat chance.

Wonder if Simelane ever has a cup of Motata tea with one Paul Ngobeni? Maybe they can get together to have a chat on integirty and ethics.

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