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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.

Selebi conviction leaves many questions unanswered

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

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

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

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

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

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

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

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

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

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

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

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

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

Another twist in Zuma corruption case?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And later on in the Report this:

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

Later on the Ginwala Report says the following about Simelane:

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

It was also only during his cross examination that it emerged that the DG: Justice prepared the letter dated 18 September 2007 from the Minister to Adv Pikoli. It is in this letter that the Minister requires Adv Pikoli to supply her with all the information that Adv Pikoli relied upon to take the legal steps to effect the arrest of and the preference of charges against the National Commissioner of Police. The letter prepared by the DG: Justice did not conform to the request from the President to the Minister dated 17 September 2007. I point out elsewhere in the report that the literal reading of the letter conveys a meaning that Adv Pikoli was to stop any plan to arrest and prosecute the National Commissioner of Police until the Minister was satisfied that there was sufficient information and evidence to do so. The Minister has since on affidavit said that it was not her intention to stop Adv Pikoli from discharging his duties or performing his functions as the NDPP. Assuming this is correct, the conduct of the DG: Justice in drafting the document in the manner it reads was reckless to say the least. The DG: Justice should have been acutely aware of the constitutional protection afforded to the NPA to conduct its work without fear, favour or prejudice. The contents of the letter were tantamount to executive interference with the prosecutorial independence of the NPA, which is recognised as a serious offence in the Act.

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

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

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

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

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

Radebe cannot tell Simelane what to do

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

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

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

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

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

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

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

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

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

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

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

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