NPA

What will happen to Minister Mthethwa?

Apr 17th, 2012

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What will we learn from NPA record on Zuma prosecution?

Apr 12th, 2012

by Pierre De Vos.

60 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A worrying attack on the Rule of Law

Mar 22nd, 2012

by Pierre De Vos.

78 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On “bribery” scandals and intelligence services

Mar 12th, 2012

by Pierre De Vos.

38 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

Scorpions was not truly independent

Mar 22nd, 2011

by Pierre De Vos.

75 comments

One should, of course, not expect politicians always to make logical arguments and to act rationally and consistently. South Africa’s confusing and ever-changing stance on Libya is a rather embarrassing case in point. One would also be over-optimistic if one expected our elected representatives always to act in a consistent and logical manner. Often what politicians say they believe and what they actually believe and do is not the same thing.

(For example, almost all our politicians profess to want to serve the poor, but some believe they can do that task so much better if they drove around in R1.2 million luxury German cars and live in the lap of luxury in 5 Star Hotels at taxpayers expense, while others endorse government policies and actions – including water and electricity cut-offs and forced evictions – that are decidedly anti-poor.)

Sometimes the reasons the politicians present to justify their actions actually do the opposite of what they were supposed to do. When one studies the reasons provided by politicians to justify their actions one is often left with the feeling that the politicians are so brazenly disrespectful of citizens that they do not even bother to cover up their lies and deceit with even halfway credible justifications. The tawdry saga of the scrapping of the Scorpions and the creation of the Hawks perfectly illustrates this rather sad point.

In the Glennister judgment the majority of judges of the Constitutional Court found that our Bill of Rights placed a positive duty on the state to create an independent corruption fighting body. The Hawks, the court found, was not such an independent body. Of course, the Hawks we were told, was an independent body that would truly help us win the battle against corruption. We now know that these claims were far from true.

During debates about the scrapping of the Scorpions at least two arguments were used by the politicians to justify the replacement of the Scorpions with the Hawks. Although almost all of us knew that the move was nothing but a self-serving attempt aimed at protecting corrupt politicians from criminal sanction, few of us actually called out the politicians for these shameless lies they were peddling.

First, it was argued that it was not constitutionally tenable that a body investigating crime should be situated in the National Prosecuting Authority (NPA) as the Constitution clearly created a separate police force and prosecuting authority. Having a unit in the NPA involved in investigating crime was therefore constitutionally problematic as prosecutors should prosecute and police officers should investigate crime.

However, the amendments to the South African Police Services Act declared invalid last week contained provisions that made a mockery of this argument. Section 17F(4) stated that the National Director of Public Prosecutions “must ensure that a dedicated component of prosecutors is available to assist and co-operate with members of the Directorate in conducting its investigations”. The Hawks therefore in effect also has prosecutors helping it to investigate so-called priority crimes – the very evil the politicians told us had to be addressed by the creation of the Hawks.

This suggests that the politicians were lying when they assured us they were animated by high principle when they abolished the Scorpions. Nothing new there, you might say. After all, a former Premier of Mpumalanga once admitted (rather candidly) that politicians always lied, so we should not be surprised when the assurances given by politicians turn out not to be true.

Second, the argument was advanced that the Scorpions had become a law unto itself and had been abused by politicians who used the Scorpions to target some but not other politicians. President Mbeki, so the argument went, used the Scorpions to target Jacob Zuma, but this was unfair because many politicians had done corrupt things but only a few like Zuma were targeted by the Scorpions.

Politicians pointed to the illegally obtained (and perhaps illegally made) recordings of telephone conversations (intercepted by who knows whom) which purported to show that discussions were held about the best political timing to charge then Mr Jacob Zuma with fraud and corruption, to back up this argument that the Scorpions had been abused to eliminate Jacob Zuma from the race for the Presidency of the ANC.

I, for one, thought this argument might well have some merit. Because the National Director of Public Prosecutions (NDPP) is appointed by the President and because the NDPP also appointed the head of the Scorpions, questions could legitimately be raised about the independence of the person who headed the Scorpions and the NPA. Given the fact that the then President was involved in a rather dirty war with his deputy in the ANC for the top job of ANC President, and because the Scorpions selectively investigated and prosecuted corruption amongst politicians and well-connected South Africans, reasonable people could easily have concluded that the Scorpions were being manipulated by President Mbeki to achieve his personal political ambitions.

In fact, a judge of the High Court found as much, which led to the firing of Mbeki as President of the country. Although this judgment was rightly overturned on appeal, the fact that a judge of the High Court could make a finding of political interference suggests that a reasonable person could very well come to the conclusion that the Scorpions were not independent.

One would therefore have thought that any honest politician would have done everything he or she could to create a truly independent body to fight corruption, a body that would not be open to any political manipulation by any politician – including by the President of the country. Sadly, this is not what happened, perhaps because the new President himself had been implicated in corrupt activities.

As the Constitutional Court pointed out last week, instead of creating a truly independent corruption fighting unit free from any potential interference by politicians, Parliament created the Hawks which were subject BOTH to the authority of the Commissioner of Police who is appointed by the President and whose term can be renewed by the President (if the Commissioner does what is expected of him by the President) AND to a Ministerial Committee who could decide what crimes to investigate and (more importantly) what crimes could not be investigated by the Hawks.

So, to stop the alleged political abuses associated with the relatively independent Scorpions, Parliament created a body that had absolutely no independence and could very easily be manipulated by politicians (the Ministerial Committee) to target political opponents inside and outside the majority party. This demonstrates the extent of the dissembling of the ANC dominated executive and Parliament who abolished the Scorpions and created the Hawks. They pretended to fix a problem by making it much worse.

What is to be done now? What should Parliament do to comply with the Glennister judgment? What it should NOT do is to resurrect the Scorpions as that body was not a very effective corruption busting institution at all.

Defenders of the Scorpions often argue that it was a successful and laudable body because it won more than 90% of the cases it brought to court. I am not so sure I share this benign view of the Scorpions. When one evaluates the effectiveness of a corruption fighting body one should look beyond its success rate in prosecuting those criminals it had decided to go after. Instead one must ask whether it had investigated and prosecuted all credible allegations of corruption with equal vigour and determination.

Clearly the Scorpions did not do this. Although the Scorpions went after Deputy President Jacob Zuma with admirable determination (and rightly so, given the fact that his financial advisor was later convicted of bribing him), it failed to pursue many other credible allegations of corruption, including allegations – never directly denied – that then President Thabo Mbeki had solicited arms deal bribes to pay for the ANC 1999 election campaign. Chippy Shaik, who was fingered in the JIP report and is widely believed to have benefited unlawfully from the arms deal was also not pursued. Allegations of corruption against other high ranking ANC leaders were never pursued or were dropped by the NPA for reasons that seem unclear.

What is required is the establishment of a completely independent body to investigate and lead prosecutions regarding corruption – regardless of whether the person involved is a police constable in Pofadder or the President of the country. Such a body would only be able to do this task properly if its head was NOT appointed by the President but was instead appointed by a two thirds or even 75% majority of members of the National Assembly. The head of this body would also need to have the power to appoint his or her own staff free from interference and political pressure.

The head of such a body should be accountable to Parliament but should be protected from interference by Parliament or the Executive. This means that the body should be empowered to decide for itself what cases to investigate and how to investigate them. The body should have broad search and seizure powers and other investigative powers and should be well financed and staffed so that it could pursue every complaint of corruption lodged with it by members of the public.

In the absence of such a body, we will not win the fight against corruption. At present the perception is that if one is politically well-connected one is protected from investigation and prosecution for corruption. The perception is that whether one is a Brett Kebble or a Jacob Zuma, a Julius Malema or a Gupta, one would never now be investigated and prosecuted for corruption – even if one had engaged in corrupt activities.

This perception may be wrong. Some or all of those mentioned above might not have been involved in corruption at all. But as the Constitutional Court found last week, a corruption fighting unit will only be independent if it is perceived to be independent. As long as ordinary people have the perception that some of our citizens are above the law and that a corruption fighting body would never investigate them, that would not be the case.

In any case, at present whenever a politician or well-connected individual is arrested for corruption, the first thing he or she usually says is that the arrest formed part of a “political conspiracy”. Although claims of such a political conspiracy is almost always laughable and usually means nothing more than that the person is guilty as sin, such claims have traction exactly because we do not have a truly independent body investigating corruption. And until we have a truly independent body to fight corruption they might even have some reason to believe the nonsense about political conspiracies.

Glenister: A monumental judgment in defence of the poor

Mar 18th, 2011

by Pierre De Vos.

110 comments

Corruption is a human rights issue and the only way for a state effectively to combat corruption is through the creation of a truly independent unit that investigates corruption with a view successfully to prosecute all those who have engaged in corrupt activities. I would guess that for most South Africans this is a pretty obvious fact. Sadly, in the past some in the ANC government (and the majority of ANC delegates at Polokwane) have shown itself to be less than enthusiastic about the investigation and prosecution of alleged corruption involving party leaders or involving those closely aligned to the ANC through mutually beneficial financial arrangements and family and friendship ties.

Hence, the Scorpions were abolished and a new unit — the Hawks – were created to investigate “priority crimes”. But yesterday in the judgment of Glenister v President of the Republic of South Africa and Others a majority of judges of the Constitutional Court (in a brave and brilliant judgment authored by Deputy Chief Justice Dikgang Moseneke and Justice Edwin Cameron), found that the Hawks were not sufficiently independent and that the state had therefore failed to fulfil its obligations to respect, protect, promote and fulfil the rights in the Bill of Rights as required by section 7(2) of the Constitution.

Both the majority and minority judgments emphasised the importance of fighting corruption and the need to establish a body that was sufficiently protected from political interference to do so. The minority held that the Hawks were sufficiently protected from such interference as it seemed to assume that politicians would not interfere with the Hawks (a rather surprising assumption given the allegations of interference with the far more independent Scorpions and given the interference by the intelligence services in the work of the Scorpions) and because there were sufficient checks and balances in the legislation to ensure that it would not be ”subject to undue influence” by politicians.

The majority took a far more robust approach to what was needed effectively to fight the corruption that seems to be engulfing South Africa like a tsunami. The ANC government might be tempted to try and tweak the Hawks legislation without really changing anything in order to comply with the judgment, but in my opinion the approach taken by the majority would doom any attempt merely to make some cosmetic changes to the structure of the Hawks. For the majority the starting point was the evil of corruption and the need to provide effective mechanisms to deal with it wherever it may be found:

There can be no gainsaying that corruption threatens to fell at the knees virtually everything we hold dear and precious in our hard-won constitutional order. It blatantly undermines the democratic ethos, the institutions of democracy, the rule of law and the foundational values of our nascent constitutional project. It fuels maladministration and public fraudulence and imperils the capacity of the state to fulfil its obligations to respect, protect, promote and fulfil all the rights enshrined in the Bill of Rights. When corruption and organised crime flourish, sustainable development and economic growth are stunted. And in turn, the stability and security of society is put at risk.

Quoting from a speech by Kofi Anan, the majority also noted that corruption hurts the poor disproportionately by diverting funds intended for development and by undermining a government’s ability to provide basic services. Corruption thus perpetuates inequality (put that in your pipe and smoke it, Jimmy Manyi).

If one understood that section 7(2) of the Constitution requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, it becomes clear that the failure on the part of the state to create a sufficiently independent anti-corruption entity infringes on the rights to equality, human dignity, freedom, security of the person, administrative justice and socio-economic rights — including the rights to education, housing, and health. Corruption was therefore an assault on the poor and on those who have suffered from discrimination in the past.

What was therefore required was to create an anti-corruption unit with the necessary independence to be protected from potential political pressure. Although there are many ways in which the state can fulfil this constitutional duty, if the state fails to create a truly independent corruption fighting body it would be in breach of its Constitutional duties.

This is strong stuff. But it gets even better. What are the requirements for such an independent body?

First, the majority indicated that the appearance or perception of independence plays an important role in evaluating whether a corruption fighting body was truly independent. This meant that the state could not create a body that it claimed was independent but that did not appear independent to the reasonable member of the public:

[P]ublic confidence in mechanisms that are designed to secure independence is indispensable. Whether a reasonably informed and reasonable member of the public will have confidence in an entity‘s autonomy-protecting features is important to determining whether it has the requisite degree of independence. Hence, if Parliament fails to create an institution that appears from the reasonable standpoint of the public to be independent, it has failed to meet one of the objective benchmarks for independence. This is because public confidence that an institution is independent is a component of, or is constitutive of, its independence.

Second, in a passage that may have consequences for our understanding of the appropriate relationship between the Minister of Justice and the NPA, the majority stated that the Constitution‘s requirement that a politician must be responsible for policing does not require that the anti-corruption unit must itself function under political oversight. This did not mean that such a body had to be insulated from political accountability. But it did mean that such a body had to be insulated from “a degree of management by political actors that threatens imminently to stifle the independent functioning and operations of the unit”.

Third, the Hawks are now “ordinary” police officials who enjoyed little if any special job security — a requirement for any truly independent corruption fighting unit. The majority pointed out that the Hawks at present can be fired by the Commissioner of Police for any number of reasons and that it appears as if he can also fire the head of the Hawks.

Although the majority does not say this, the lack of independence of the Hawks due to this provision is highlighted by the fact that our present Police Commissioner has recently been found to have acted in an unlawful manner relating to a highly problematic lease entered into to rent new Police Headquarters. If the Hawks were to investigate any possible corruption relating to this deal, the Commissioner would, in effect, be able to fire those responsible for the investigation for any of a number of reasons not officially related to the investigation.

But even if the National Commissioner of Police were not involved there could be problems with his power to fire members of the Hawks. The majority pointed out that unlike the National Director Public Prosecutions (NDPP) — who selected the head of the Scorpions from amongst the Deputy NDPPs – the Police Commissioner can be re-appointed by the President at the end of his term. As the majority pointed out, a renewable term of office heightens the risk that the Police Commissioner may be vulnerable to political and other pressures. In theory the President could therefore place pressure on the Police Commissioner to fire those Hawks who dared to investigate allegations of corruption against — say — the Guptas or — say — against the President himself.

But for the majority the gravest problem with the Hawks arises from the fact that the new entity‘s activities must be coordinated by Cabinet. The statute provides that a Ministerial Committee, which must include at least the Ministers for Police, Finance, Home Affairs, Intelligence and Justice may determine policy guidelines in respect of the functioning of the Hawks as well as for the selection of national priority offences. The Hawks is therefore not explicitly a corruption fighting unit. It is a unit that fights “priority crimes” and the politicians could decide what these “priority crimes” should be. This creates a risk of political and executive influence over the Hawks. As the majority pointed out:

It is true that the policy guidelines the Ministerial Committee may issue could be broad and thus harmless. But they might not be broad and harmless. Nothing in the statute requires that they be. Indeed, the power of the Ministerial Committee to determine guidelines appears to be untrammelled. The guidelines could, thus, specify categories of offences that it is not appropriate for the DPCI [the Hawks] to investigate — or, conceivably, categories of political office-bearers whom the DPCI is prohibited from investigating.

In other words, at present politicians can in effect decide what crimes the Hawks must investigate and, by implication, what crimes it should stay away from. This line of reasoning makes sense. If a President or other members of the executive are corrupt and wishes to avoid criminal sanction, these provisions would help them to do so. Although parliament is supposed to have some oversight function over this function, the President – as leader of the majority party — have indirect control over the majority of members of Parliament and hence could potentially ensure that no oversight takes place. If this ever happened this would completely subvert the corruption fighting ability of the Hawks – at least as it relates to politically connected individuals and institutions.

The majority made clear that it was not assuming that these powers would be abused by any politician. But where politicians are given powers over a corruption fighting unit that can be abused, that body does not have the requisite independence to make it effective.

From the above it must be clear that it is going to be difficult for the executive and Parliament to comply with the judgment by merely tweaking the existing legislation. A completely new institution with far more safeguards to secure its independence will have to be created. Of course, even such a body will only be as good as the people appointed to it. The professional naysayers will argue that such a body will never be truly independent because fundamentally dishonest or corrupt people will be appointed to it to protect the ANC.

I would disagree with such a pessimistic assesment.

Where a body’s independence is secured and where the body is protected from political interference, those who work for that body often grow in confidence and often begin to embody the values of that body. The pride and respect that comes with such a position often assists an individual to act in a manner not expected by those who might have appointed the person.

I recall the words of an apartheid era Minister of Justice who at that time appointed South Africa’s judges and who complained that “the problem with these judges is that once appointed they think they have been appointed on merit and start thinking for themselves”. Hopefully the members of an independent corruption fighting body will have the integrity to follow this route.

Meanwhile the ball is back in the ANC government’s court. Only time will tell whether it will try to circumvent the judgment with cosmetic changes to the existing legislation or whether it has also realised that corruption — whether committed by an ANC leader, a white businessman or someone who has donated pots of money to the governing party — disproportionally disadvantages the poor and will, if not checked, fatally undermine the credibility and legitimacy of the ANC government.

On irony in politics

Feb 8th, 2011

by Pierre De Vos.

20 comments

For any person with a well-developed sense of irony and an interest in politics, South Africa remains a wonderful source of entertainment. Two examples from the past week illustrates this point.

The hullaballoo about President Jacob Zuma’s remarks that ANC voters will go to heaven while opposition voters is choosing “that man who carries a fork … who cooks peoples” is a case in point. Given the fact that Christian religion teaches (rather strangely) that marriage is exclusively between one man and one woman and that sex is a holy expression of God’s love which must only occur within a monogamous marriage, and warns individuals against severe punishment and even banishment from heaven if they transgress these rules, our President’s remarks seem rather ironic.

If one takes this kind of thing seriously (I don’t, but many devout Christians do), one might argue that due to his rather adventurous private life our President is uniquely unqualified to speak on matters of religion. After all, in his private life President Zuma breaks many of the rules which Christianity takes rather seriously. Yet, that has not stopped our President from playing God and from declaring that only ANC members will go to heaven while opposition voters will go to hell.

Perhaps because I am not a religious person and because I do not take these beliefs too seriously, I am more amused than outraged by the President’s remarks. In terms of religious doctrine, one of the biggest “sinners” (once again, not a term I would ever use without irony) in South Africa is implying that he has a direct line to God and is telling us that he knows who will get into heaven and who will go to hell and is doing so with a straight face — despite the fact that concepts like heaven and hell are about as easy to believe in as the promises of Johannesburg mayor Amos Masondo that the billing problems of that city will be sorted out soon.

I am struck by the irony of all of this. The sheer chutzpa of President Zuma is also admirable. Besides, I am not sure why opposition politicians and newspaper editors are complaining so much about this bizarre statement by our President. There is a long and proud tradition across the world of politicians using and abusing religion in the most blatant and crude manner to try and win a few votes. Anyone who has ever followed an election campaign in the USA would know what I mean. President Zuma’s statement reminds me of Sarah Palin, who also seem to believe that she has a special knowledge of God who, after all, is a Republican.

News that Police Minster Nathi Mthethwa has approached the Constitutional Court to overturn a Supreme Court of Appeal (SCA) decision that requires an offence under investigation to be mentioned in a search warrant for a warrant issued in terms of the Criminal Procedure Act to be valid, also highlights the bizarre change in attitude of the Zuma inner circle to criminal procedure questions.

Apparently the Ministry fears that the criminal justice system will be thrown into turmoil if the Constitutional Court does not, in effect, reverse its decision in a case in which President Zuma himself was a litigant. If one required the offence to be mentioned in a search warrant, so the argument goes, vast numbers of search warrants may be declared invalid. How could one possible pursue criminals if the law was so demanding and required law enforcement officials to be so precise and accurate when they applied for search warrants?

In his written arguments before the Constitutional Court, the Minister argues that the failure to specify an offence only applies in the National Prosecuting Authority (NPA) Act and does not cover warrants issued under the Criminal Procedure Act.

Of course, the irony here is that President Jacob Zuma held a very different view about the precision of search warrants when he was a criminal defendant and not the President. When Zuma was fighting to stay out of jail so that he would not suddenly have to ”fall terminally ill” to escape a prison sentence after being convicted of corruption, his legal representative challenged the lawfulness of search warrants issued by the NPA to gather evidence at Zuma’s home as well as at his attorney’s office because, so it was argued, these warrants were too vague and because they therefore fundamentally infringed on his rights.

The majority of the Constitutional Court in the famous case of Thint (Pty) Ltd v NDPP; Zuma v NDPP ruled that a warrant issued in terms of the NPA Act should state at least the following, “in a manner that is reasonably intelligible without recourse to external sources of information”:

The statutory provision in terms whereof it is issued; to whom it is addressed; the powers it confers upon the addressee; the suspected offences that are under investigation; the premises to be searched; and the classes of items that are reasonably suspected to be on or in that premises. It may therefore be said that the warrant should itself define the scope of the investigation and authorised search in a reasonably intelligible manner.

Despite these rather stringent rules (some have argued that the Constitutional Court’s requirements for a valid search warrant set the bar too high, given the lack of training and general bumbling of some of our law enforcement personnel), the majority of judges of the Constitutional Court found that the search warrants were valid. Supporters of Mr Zuma argued that the Constitutional Court judges — you know those men and women who were described as counter-revolutionaries for not finding in favour of Mr Zuma – ruled in the way they did because they hated Zuma and may have been part of a conspiracy. No one asked whether it would throw the entire criminal justice system in turmoil if the Court found in favour of Zuma and demanded extreme precision in the formulation of search warrants. Instead they argued that his human rights were grossly infringed because the search warrants were vague (although they did stipulate the offences under investigation).

Now that the SCA has confirmed that the strict rules regarding search warrants did not only apply to search warrants issued in terms of NPA Act but also in terms of the Criminal Procedure Act (and of course, now that President Zuma does not have to worry about search warrants anymore) his government is taking a position that is diametrically opposed to that taken by Zuma when he was a criminal defendant.

You see for our government, one set of principles should apply when the police or NPA deals with “ordinary” criminal cases and an entirely different set of principles should apply when they deal with a criminal case relating to a leader of the majority party. The greatest irony is of course that Minister Mthethwa’s stance might find favour with many of the people who previously believed that Mr Zuma’s rights were being violated in a grossly unfair manner. Given the fact that many police officers are poorly trained and that the Police Service (constitutionally it remains a Police Service so I refuse to call it a Police Force) have bungled many search and seizure warrants, and given the high crime rate, many people (but not me) would argue that the requirements for search warrants should be relaxed.

I am of course not saying that Mr Zuma and his lawyers should not have made the arguments he did. These were good arguments to make to try and prevent the NPA from using the hundreds of thousands of documents seized at his home in their relentless (but not very well-executed) pursuit of the President to be. Those documents might have implicated Mr Zuma and might have made a conviction more likely so it was imperative to keep them out of court. But it does go to show that one’s views can change rather dramatically once one stops being a criminal defendant and one becomes the President of the government who has promised voters that the government would do something about crime.

What I am wondering about is whether President Zuma expressed any view on this appeal when it was discussed at cabinet and if so, what he might have said. Did he continue arguing that vague search and seizure warrants grossly infringed on the rights of criminal defendants or did he change his position? Sadly because of cabinet confidentiality, we will never know.

NPA

What will happen to Minister Mthethwa?

What will we learn from NPA record on Zuma prosecution?

A worrying attack on the Rule of Law

On “bribery” scandals and intelligence services

Another legal oversight by the President?

“No one is above the law”

Mail & Guardian case raises difficult questions

Scorpions was not truly independent

Glenister: A monumental judgment in defence of the poor

On irony in politics

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