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NPA

The Bengal Tiger meows again

Jan 19th, 2011
by Pierre De Vos.
9 comments

It is all getting a bit out of hand, what with every second politician threatening or taking legal action after having been mocked or insulted. I always thought one expects to be mocked and insulted when one enters politics and that one is happy when this happens because at least this means that one is being noticed. (Imagine launching a political party or giving a political speech and no-one showed up.)

But no, some of our politicians seem to think that we live in a country where so called “insult laws” protect their exulted dignity — as is the case in many authoritarian states across the world — and that they should therefore be able to rely on our courts to protect them from insults and ridicule.

The latest politician (sometimes masquerading as a stand-up comedian) who has jumped on the bandwagon is Minority Front leader Amichand Rajbansi – also affectionately known as the Bengal Tiger – who has vowed to push ahead with criminal charges against an ANC leader who he said called him a “stooge”.

According to news reports Mr Rajbansi laid a charge of crimen iniuria against “a certain ANC member who called me a stooge. I will continue with the charges if the leader does not apologise publicly.” The charge of crimen iniuria against Chatsworth Youth Centre co-coordinator Clive Pillay stems from a remark Pillay allegedly made in October last year at an Indian cultural event in Chatsworth which they both attended. Said Rajbansi:

I cannot tolerate an insult from him. In court the issue was left for mediation between the two parties and no court date was set.

The report is unclear about whether the state has decided to proceed with the prosecution of Mr Pillay. If a prosecutor has indeed decided to proceed with this case, this would be rather surprising. Maybe Mr Rajbansi is just being over-exuberant and has told the journalist something that might strictly speaking not be entirely correct.

Now, Mr Rajbansi has been called many things in his “colourful” political career. Being called a stooge is just the last in a long line of insults he has had to endure — and by no means the most damaging. Why, some cruel journalist has even alleged that his mop of black hair is not his own, but in fact a toupee. In any case, it remains a bit of a mystery why he is now pursuing completely fruitless crimen iniuria charges against someone we have never heard of. He has had to suffer far worse “affronts” to his dignity in the past.

My favourite story about him (which is probably not true, but still funny) relates to his days as a politician in the “House of Delegates”, one of the three houses of the so called tricameral Parliament. (Those were the days when the ANC still opposed any co-operation with “stooges” like Mr Rajbansi who worked within the apartheid political system — long before they made Martinus van Schalkwyk a Minister in the cabinet, invited former homeland politicians to join the ANC and even co-operated with Mr Rajbansi in the Kwa-Zulu/Natal Legislature.)

Mr Rajbansi was a serial floor-crosser and was infamous for jumping from one political party to the other. When rumours started spreading that he was about to cross the floor again, a journalist asked him whether this was indeed true and whether he was going to change parties again. To which he allegedly responded: “Well, I will double-cross that bridge when I get there.”

In any case, this crimen iniuria charge is not going to stick. Yes, the crime of crimen iniuria does exist in South African law. As I have explained before, traditionally, the crime has been defined as one where a person intentionally and unlawfully impairs the dignity of another person. This means that where someone intentionally subjects another person to offensive or degrading treatment, or exposes that person to ridicule or contempt to such a degree that, objectively considered in the light of prevailing norms of society, it is criminally insulting, he or she commits a crime.

Of course, the prevailing norms of society must be judged against the values and norms enshrined in the Constitution. Given the commitment in the Constitution to democratic values, political contestation, the right to vote and free and fair elections, the right to equality and freedom of expression — which includes the freedom to receive and impart ideas and views — hurling racial abuse at another person will probably constitute crimen iniuria. Shouting “Jou ma se *@%!.” at your employee might also reach the level of a crime. But saying that a certain politician is a stooge (a rather standard charge to make against any politician) is never going to be considered unlawful by our courts.

Maybe the Bengal Tiger even knows this. Surely his lawyer must have told him that the chances of a crimen iniuria charge sticking in this case is almost zero? Why would he then continue with the case? Ego, perhaps? A need for (more) publicity? Or maybe he is merely using (or is it abusing?) the legal system in an attempt to intimidate a political opponent and make that opponent think twice before insulting him again? Who knows what the motivation for such actions might be.

But it is not a healthy trend, these attempts by politicians to use the legal system to settle political scores. It requires judges or magistrates to become involved in what are essentially private squabbles between potentially powerful, politically connected, individuals. When they invariably find against the politician, he or she (or his or her supporters) will be tempted to malign the presiding officer and may allege that some political conspiracy or political bias on the part of the magistrate or judge can be blamed for the entirely predictable outcome of the case. This, in turn, would undermine public confidence in the judiciary.

Insurance for a rainy day?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NPA Code is a good first step

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A leap of logic and a leap of faith

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

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

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

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

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

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

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

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

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

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

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

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

This clearly cannot be correct.

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

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

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

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

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

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

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

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

But this Van der Byl did not do.

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

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

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

Another personal attack on an independent institution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Somewhere in the wild, wild, East

Aug 5th, 2010
by Pierre De Vos.
209 comments

In 1963, the apartheid Parliament rushed through the General Laws Amendment Act, Number 37 of 1963. The Act applied retroactively to June 27th 1962 and was mainly aimed at ensuring that the ANC leaders arrested at Lilliesleaf Farm in Rivonia could be held in detention indefinitely or until they could be charged.

Under this General Law Amendment Act, the security police, also known as the Special Branch, were given the authority to arrest anyone they suspected of being engaged or involved in any act against the State and to hold them incommunicado for 90 days at a time. The Act was often used to detain people for longer periods. Detainees would be “released” for a few seconds before they were “re-arrested” and detained for another 90 days.

When this process of being released and then re-arrested proved to be too cumbersome, the government introduced and passed the 180-Day Detention Act (the Criminal Procedure Amendment Act, Number 96 of 1965). Eventually, this 180-day law would be replaced yet again by the Terrorism Act, Number 83 of 1967, which allowed the government to detain individuals indefinitely until all questions had been answered satisfactorily or no further purpose could be achieved by holding the detainees.

Thankfully, section 12(1)(b) of the South African Constitution now prohibits anyone from being detained without trial. We do not live in apartheid South Africa anymore and we all have rights now. The police are not allowed to detain or torture us. This means, as a general rule, a detained person must be charged or released at his or her first appearance in court. In terms of section 35 of the Bill of Rights (read with section 50 of the Criminal Procedure Act) if no charge is brought, the person must be released or may “be informed of the reason for his or her further detention”.

This implies that the Bill of Rights does allows for an unspecified period of detention of uncharged detainees – but only in the most exceptional circumstances. Where a terror suspect who might have planned blowing up the Union Building or assassinating the President, is arrested and charges are still being investigated against that suspect, he might be detained. However, the detained person retains the right to bail and the right to challenge the lawfulness of the detention. This will entitle a person to approach a court at any time to apply for trial or contest the lawfulness of the detention. Where prosecutors determine that there is no case against a detained person, it is illegal to continue detaining that person.

In the light of the above, the arrest and (at the time of writing) continued detention of Sunday Times journalist Mzilikazi wa Afrika seem quite shocking. The arrest and detention (somewhere in Mpumalanga) of wa Africa raise many serious questions about the commitment of the current government to uphold the rights of citizens and the possible abuse of the police to cover up corruption and intimidate the media.

At this point, one does not have sufficient information to know for certain that wa Africa is being held illegally in detention without trial – as alleged by the Sunday Times in a statement posted on heir website – and whether the Hawks have unlawfully arrested him for an ulterior purpose. Whether he is a thoroughly bad man who will one day be convicted of the most despicable crimes, or whether he is an innocent victim of the most flagrant abuse of state power, is not yet known.

Nevertheless, the fact that wa Africa co-wrote an article alleging that Police Commissioner Bheki Cele (what is it with South African Police Commissioners and the law?) signed a R500 million lease for the Police to rent a new building without following tender procedures, must make every reasonable South African very suspicious indeed. This ongoing saga raises several serious and disturbing questions.

Is it true – as reported by the media – that wa Africa was arrested for fraud because he was in possession of a fabricated letter – faxed to the Sunday Times – purporting to show that the Premier of Mpumalanga intended to resign? If this is the case, then wa Africa should never have been arrested as it is not a crime in South Africa to be in possession of a fraudulent letter.

Is it true – once again as reported in the media – that this morning prosecutors met with wa Africa’s lawyers and the prosecutors decided that he had no case to answer, but that the police then refused to release him? Is it further true that the police “held further discussions” with the prosecutors, who then decided to charge him after all? If this is so, why would prosecutors who had decided there was no case to answer change their minds? Was there unlawful interference in the work of the NPA and was unlawful pressure placed on prosecutors to have wa Africa prosecuted despite the fact that they do not believe that he has a case to answer.

Why was wa Africa arrested at all and why, at the time of writing, is he still being detained? It is extremely unusual for a suspect in an ordinary fraud case who has arranged with police to meet with them and who poses no flight risk and no immediate risk to the community, to be arrested and detained for two days without appearing in court. On the available evidence, at the very least, this arrest appears unnecessarily high-handed.

Is it pure co-incidence that wa Africa was arrested in this high-handed and seemingly unnecessary manner a day after the Police Commissioner Bheki Cele referred to him as a “very shady journalist” for co-writing the article in which it was hinted that Cele is corrupt? Even more bizarrely, this happened in the same week in which the previous police commissioner was sentenced to 15 years imprisonment for corruption. Someone a bit more suspicious than myself might wonder whether Cele had learnt his lesson from Selebi and was taking pre-emptive measures to avoid Selebi’s fate.

Hopefully, all these questions will be answered in a satisfactorily manner and it will turn out that the justifiable fears raised by the arrest and the subsequent detention of wa Africa were entirely misplaced. For the sake of our country and our future, I sincerely hope that this is the case. It would be rather scary once again to live in a country where the police does not act in terms of the law and where individuals who are critical of the state can be detained without trial.

To be honest, for the first time since we became free in 1994, I am running a bit scared.

More questions for Mbeki on Selebi

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Who could have made up this stuff?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

What now for Menzi Simelane?

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

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

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

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

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

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

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

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

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

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

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

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

On World Cup Courts and the prosecution of “criminals”

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

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

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

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

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

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

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

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

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

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

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

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

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

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