Constitutional Hill

NPA

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.

A secret trial for Terreblanche accused?

Apr 6th, 2010
by Pierre De Vos.
31 comments

I must confess that I am dreading the weeks and months ahead as the trial of the alleged killers of Eugene Terreblanche gets under way. The past few days have shown that the killing of Terreblanche has become something of a Rorschach test for South Africans. Many of us seem to have interpreted the killing of Terreblanche by projecting our own fears, prejudices, hatreds and ideological and emotional commitments onto the events of the weekend. This has exposed the serious racial fault-lines in our society for all to see.

My first reaction to a report that the entire trial of the 15 year old accused and his 28 year old co-accused would be held in camera was therefore one of relief. Maybe this will spare us from the relentless and sensationalistic coverage by the media and allow us to paper over the racial fissures in our society.

According to George Baloyi, spokesperson for the NPA, the entire trial would be held in camera, due to the age of the one accused. ”The law is very clear the trial must take place in camera,” he said. NPA head Menzi Simelane confirmed that there would only be one trial, saying thus far “from the information, they are the only ones involved in the crime”.

The problem is, despite the practical problems with conducting two separate trials and despite the trauma that a public trial might inflict on the body politic, I am not sure that having the trial of the adult accused in secret would be either wise or lawful and constitutional.

Section 16(1)(a) and (b) of the Constitution provides that everyone has the right to freedom of expression, which includes freedom of the press and other media as well as freedom to receive and impart information or ideas. Section 34 does not only protect the right of access to courts but also commands that courts deliberate in a public hearing. This guarantee of openness in judicial proceedings is again found in section 35(3)(c) which entitles every accused person to a public trial before an ordinary court.

It is clear from section 63(5) of the Child Justice Act that the 15 year old accused could (and probably should) be tried in camera. It is also clear from the jurisprudence of the Constitutional Court that this provision is constitutionally valid as it is aimed at protecting the best interest of the child concerned. However, a cursory look at the Child Justice Act and the relevant jurisprudence of the Constitutional Court reveals that the adult accused might well have to be tried in open court.

First, section 63(2) of the Child Justice Act states that “where a child and an adult are charged together in the same trial in respect of the same set of facts” the Child Justice Act will apply to the child while the Criminal Procedure Act will apply to the adult. This could suggest that both could be prosecuted in the same court where the trial would be conducted in secret, or it could mean that the secrecy provision applicable to the young accused should not apply to the adult. To solve this riddle it will be necessary to seek help in the Criminal Procedure Act.

The Criminal Procedure Act contains two relevant provisions in this regard. Section 152 states that usually criminal proceedings in any court shall take place in open court. This provision is qualified by section 153 of that Act which states that:

If it appears to any court that it would, in any criminal proceedings pending before that court, be in the interests of the security of the State or of good order or of public morals or of the administration of justice that such proceedings be held behind closed doors, it may direct that the public or any class thereof shall not be present at such proceedings or any part thereof.

The Act also states that in a case where a trial is held in camera “the court may direct that no information relating to the proceedings or any part thereof held behind closed doors shall be published in any manner whatever”. This means the whole trial could be held in secret and one would only be able to ascertain details of the case if a judgment is written and published in a bona fide law report. If one assumes that these sections are constitutionally valid – something that is far from certain, given its potentially rather broad ambit – it will have to be interpreted in such a way that it conforms to the spirit, purport and object of the provisions in the Bill of Rights quoted above.

The Constitutional Court has made several statements in this regard, emphasizing the importance for the credibility of the administration of justice of having public trials. In SABC v NDPP, Langa CJ stated the following:

Open justice is observed in the ordinary course in that the public are able to attend all hearings. The press are also entitled to be there, and are able to report as extensively as they wish and they do so. Courts should in principle welcome public exposure of their work in the courtroom, subject of course to their obligation to ensure that proceedings are fair. The foundational constitutional values of accountability, responsiveness and openness apply to the functioning of the judiciary as much as to other branches of government. These values underpin both the right to a fair trial and the right to a public hearing (ie the principle of open courtrooms). The public is entitled to know exactly how the judiciary works and to be reassured that it always functions within the terms of the law and according to time-honoured standards of independence, integrity, impartiality and fairness.

More recently in Shinga v The State Yacoob J explained the constitutional interest in open court rooms in the following terms:

The survivors of crime, those accused of it and the broader community have a right to see that justice is done in criminal matters.Seeing justice done in court enhances public confidence in the criminal-justice process and assists victims, the accused and the broader community to accept the legitimacy of that process. Open courtrooms foster judicial excellence, thus rendering courts accountable and legitimate. Were criminal appeals to be dealt with behind closed doors, faith in the criminal justice system may be lost. No democratic society can risk losing that faith. It is for this reason that the principle of open justice is an important principle in a democracy….

The requirement of fairness must also take into account that all victims and their families have an abiding interest in the outcome of the appeal and have a right to attend the proceedings so that if the appeal should succeed, they have at least been given the opportunity to witness the process that gave rise to this result. It is a fundamental tenet of the administration of justice and the rule of law that appeals, particularly criminal appeals, are not held behind closed doors.

Sadly, the forthcoming trial will take on considerable importance as many South Africans have interpreted the killing of Terreblanche in racial terms. In the absence of a public trial for the 28 year old accused, gossip and conspiracy theories are bound to emerge and distrust of the judiciary among some members of the public will be heightened. This problem will become more acute if  a verdict or a sentence imposed (in the event of the accused being found guilty) fail to garner approval of a certain section of the population.

Although there are some practical problems with the splitting of the trials of the child and the adult accused, and although one does not know whether evidence led at the trial might inflame emotions, it therefore seems imperative that the trial of the adult accused be conducted in public. A failure to do so runs the risk of discrediting the trial (and to some extent the whole judiciary) in the eyes of those who do not agree with a verdict or a possible sentence.

One hopes that all involved in this trial will consider the constitutional requirement for open justice as set out above before proceeding with a secret trial for both accused in this case. They will also have to take note of the fact that it is imperative to conduct the trial in such a way that it enhances, rather than detracts, from the legitimacy of the judiciary. Excessive secrecy may well lead to misunderstandings and distrust and may well allow people to question the legitimacy of the legal process – regardless of the outcome – in a manner that could severely harm the authority and integrity of the judiciary.

Although I am slightly conflicted on this issue, on balance, given the legal framework and the jurisprudence of the Constitutional Court, the decision of the NPA to conduct both trials in camera therefore seems wrong on policy grounds. The decision also seems to be constitutionally problematic. A rethink by the NPA is thus required.

R.I.P. National Prosecuting Authority?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Simelane comes through for the ANC

Mar 23rd, 2010
by Pierre De Vos.
23 comments

News that the purported National Director for Public Prosecutions (NDPP), Menzi Simelane, has decided to intervene and to stop attempts by the Asset Forfeiture Unit (AFU) to attach some of the assets of Mr Fana Hlongwane because of suspicions that Hlongwane received his money through corrupt arms deal practices, comes as no surprise. Providing reasons for the decision, Simelane argues that there is not sufficient evidence that Hlongwane indeed broke the law.

Simelane’s view differs from that of his own staff intimately involved in the case. Staff at the AFU maintain that there is good reason to suspect that the R200 million received from successful arms deal bidders was paid as bribes and they have pressed for the case against Hlongwane to go ahead.

Simelane points out correctly that:

if forfeiture process were to be instituted by the NPA, it would require a good basis for doing so as opposed to a simple suspicion. The test though remains lesser than the criminal test of proof beyond a reasonable doubt. It is a civil test of balance of probabilities.

But curiously, he then applies this test in a rather eccentric manner, arguing that because the test is one of probabilities Hlongwane needed:

to show on a balance of probabilities that the money was not obtained from criminal activities. Put another way, they needed to rebut the suspicion of criminal activity. They did not have to prove beyond a reasonable doubt that the money was obtained legally. For this purpose they were advised to submit a formal memorandum supported by annexures, if any.

Simelane seems to argue that the submissions made by Hlongwane’s lawyers cast doubt on the suspicion of criminality and hence necessitated the dropping of the case. Because the source of the money was known, it was for the AFU to provide other evidence to prove that the money was not received as part of an attempt to corrupt the arms deal. This seems strange as the test is one of probabilities and one must ask, what is more probable: the version presented by Hlonwagne’s lawyers or the version presented by the AFU.

Just because Hlongwane provided a story that casts doubt on the version presented by the AFU does not mean that on a balance of probabilities Hlongwane was not involved in corruption. On balance, one has to decide which version is more plausible, not whether the AFU has a watertight case.

AFU lawyers are adamant that on the balance of probabilities there was criminal conduct and thus maintain their version is more plausible and one would have thought that a conscientious and honest NDPP would place sufficient trust in his lawyers to go with their version.

Nevertheless Simelane chose rather to believe Hlongwane. This is strange as BAE who paid the money has entered into a plea bargain on some of the bribery allegations against it while other charges against them were dropped, partly because anti-corruption legislation in the UK is deficient – unlike South Africa who has much stronger anti-corruption legislation.

The crux of the matter is this: there is strong suspicions, based on the available evidence, that BAE paid bribes via Hlongwane to secure arms deal contracts from South Africa. Hlongwane’s lawyers provided a different story. One had to choose either to believe this story of Hlongwane or to believe the mountains of circumstantial evidence pointing the other way. Simelane chose to believe the former and not the latter.

That was a choice his own investigators with intimate knowledge of the details of the case would not have made. The question then arises: why did Simelane believe Hlongwane rather than the lawyers in the AFU? To answer this question one has to remember that the AFU lawyers are not well-connected ANC funders and supporters while Hlongwane is. One also has to remember that Hlongwane is alleged to have paid bribes of millions of Rand to various ANC connected people and recall that Simelane was deployed to the NDPP by the ANC.

If one has strong political loyalties and one is presented with two versions of events, one is likely to believe the version that will be most beneficial to one’s political masters.

Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right. But given Simelane’s track record as a loyal servant of the rich and politically powerful, reasonable people will suspect that Simelane chose to believe one rather than the other side because he was politically required to do so. Was his choice thus a political rather than a legal choice?

A choice for the other version presented by the AFU may have had adverse consequences for many people in the ANC who is alleged to have taken bribes. I for one suspects that this may well have tilted the scales against the AFU in favor of Hlongwane. If Simelane was an honest man and if he had not been exposed at the Ginwala Inquiry as someone who was prepared to act in ways that are both dishonest and perhaps even criminal, I would have given Simelane the benefit of the doubt.

However, given the grave doubts about Simelane’s honesty and integrity, it is impossible to give him the benefit of the doubt. To this observer a reasonable suspicion thus exist that Simelane made a political decision to save the ANC further embarrassment from the arms deal bribery. The AFU lawyers who actually worked on the case agree with me and not with Simelane.

Would Vusi Pikoli have made the same decision as Simelane? I suspect not. No wonder he was fired.

Selebi’s Zuma option

Feb 25th, 2010
by Pierre De Vos.
59 comments

ETV news reports that lawyers for Jackie Selebi is to approach Menzi Simelane, National Director of Public Prosecutions (NDPP) in order to have his trial stopped. They report that Selebi will argue that there was a conspiracy against him and that the prosecution was tainted by prosecutorial misconduct.

Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.

However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:

Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.

If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.

The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.

However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:

prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.

A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.

Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.

If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.

“Just trust me?” Maybe not….

Feb 24th, 2010
by Pierre De Vos.
28 comments

Adv Menzi Simelane, who was recently “appointed” as National Director of Public Prosecutions (NDPP), has a rather eccentric view of democracy which can be summed up in one short phrase: “Just trust us.” This is not a view I share or, I would contend, that anyone who loves or supports democracy should share.

Last night I took part in a panel discussion with 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. The discussion formed part of the UCT Constitution Week. Sadly it confirmed the grave doubts I have about Adv Simelane’s fitness to serve in the position of NDPP.

Simelane seemed to be quite an affable guy. When 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, he even laughed. But he is nevertheless dangerously misguided.

Adv Simlene said that because we live in a highly politicized society (by which, I think, he meant a society divided along racial lines) the notion of justice itself was contested. Although he did not expressly use racial terms, it was clear that he was arguing that what was fair and just for a black person would not be fair and just for a white person and visa versa. For the system to work better we needed to be less distrustful, he said. We thus needed to be more trusting of the system and, by implication, more trusting of  public officials and politicians (like Simelane himself).

I agree with Simelane that we live in a highly divided society with high levels of distrust. I can also concede that high levels of distrust are at least partly caused by racial divisions and by racially influenced assumptions about insincerity, dishonesty and partisanship of politicians and public officials. There is a need for everyone to reflect critically on their own (often unexamined or unidentified) assumptions about others who do not share their race, class and gender.

Yet, when a politician like Simelane (for he is a politician) says that the problems in our criminal justice system is based on a lack of trust and calls on us to be more trusting of politicians and other public officials, it make my hair stand on end. Clearly on a personal level South Africans should try and build bridges across race, glass and gender lines and should not always assume the worst about someone else merely because that person happens to be of a different race.

However, it would be foolhardy and dangerous for citizens blindly to trust our politicians and public officials (no matter what their race), as Simelane wants us to. When they ask us to trust them, they are really saying that we should not ask questions, we should not think for ourselves, we should not scrutinize their actions. Rather we should believe everything they say and support everything they do because, like mommy and daddy, they know best. We should also trust that, like mommy and daddy, they have only our best interests at heart.

This view is profoundly paternalistic, anti-democraticand dangerous. It aims to deprive ordinary citizens of any agency, and hence aims to rob them of their dignity and their ability meaningfully to take part in our democracy. A claim that the powerful politicians, public officials and business leaders know what is best for all of us and should thus be left alone to get on with the job, is a claim against participatory democracy. “Just trust us,” they say, “and we will look after you. Do not worry about the rest.”

Fat chance.

It is exactly because we have learnt the hard way that it would be extremely foolish to place our blind trust in those who exercise power over us, that we have devised various forms of constitutional democracy and have created elaborate regulatory states in order to try and check the potential abuse of power of those who claim to have only our best interest at heart. If we blindly trust the powerful we give them absolute power over us and as Lord Acton said: “Power corrupts, and absolute power corrupts absolutely.”

In a modern open and democratic society – like the one established by our Constitution – we build in mechanisms to hold the powerful (the politicians, the public officials, the business leaders) to account exactly because we know we would be rather stupid to blindly trust that they would always do the right thing.

I for one, would not trust Adv Simelane. This is not because he is black, nor  because he is an ANC politician. (If he was a white DA member I would have felt exactly the same.) It is because he has demonstrated that he has only the interests of a small band of politicians at heart. As the Ginwala report shows, he lied under oath to try and mislead the Inquiry and also drafted a letter containing an illegal instruction to the then NDPP – all because he was trying to protect his boss and/or because he was instructed to do so by his boss.

Trust is earned in a democracy. If Simelane grows into the role of NDPP, if he starts believing he is there on merit and begins to think for himself, if he refuses to be bullied by the Minister of Justice or the President, if he demonstrates that he is willing always to act without fear, favor or prejudice in prosecuting even the most well connected politician, then and only then will I begin to trust him.

It is our duty and our right as citizens to distrust politicians like Simelane until they prove us wrong. And even then we should always keep a beady eye on them to make sure they continue to serve us.

Radebe (LLM Leipzig) strikes again

Feb 18th, 2010
by Pierre De Vos.
75 comments

Minister of Justice, Jeff Radebe, is a learned man. He obtained a B Iuris degree at the University of Zululand, and finished an LLM in International Law at the Karl Marx University in Leipzig in 1981. He also studied at the Lenin International School, Moscow in 1985, but it is unclear what qualification he obtained there.

It might be of no consequence that Radebe obtained most of his legal qualifications in a communist country. After all, the constitutions of most communist states described their political system as a form of democracy. On paper such states recognized the sovereignty of the people as embodied in a series of representative parliamentary institutions.

But here is the rub: Communist states such as that of East Germany and the USSR did not adhere to the principle of the separation of powers. Instead, they had one national legislative body (such as the Supreme Soviet in the Soviet Union or the Volkskammer in East Germany) which was considered the highest organ of state power and which was legally superior to the executive and judicial branches of government.

No wonder, then, that Radebe has some difficulty with concepts such as an independent and impartial judiciary and the separation of powers. They obviously did not teach that stuff in Leipzig or Moscow. Yesterday, Radebe got into a terrible muddle when he tried to defend the appointment of Adv. Mokotedi Mpshe as an acting judge. First he claimed that the appointment of a member of the NPA would not compromise the independence of the judiciary, amongst other reasons because: 

Members of the NPA are paid by the government. The GCB makes a convenient omission which undoubtedly advances its course (sic) by not referring to instances where advocates and attorneys in private practice take positions as judges. These are legal practitioners who get briefed to appear on behalf of government and get paid by govt…who during their acting stints may have to adjudicate matters that involve govt.

Apart from the fact that Radebe confuses the government and the state (maybe because in Leipzig and Moscow in those days there was no distinction between the two?) his argument about payment of acting judges completely misses the point. Full time judges are also paid by the state, but no one has suggested that they are not independent because their institutional independence is safeguarded. The fact that members of the NPA are paid by the state is therefore not the reason why the appointment of Mpshe (or any other member of the NPA) as acting judge would infringe on the independence of the judiciary.

 

Rather the problem is that NPA members are state employees and are subject to the authority of the head of the NPA – unlike advocates who work for themselves (and are not answerable to the Minister or the head of the NPA) and university lecturers who are subject to the authority of their universities (not to the Minister or the head of the NPA). A member of the NPA appointed as acting judge will be required to serve two masters by being both subject to the authority of the head of the NPA and subject only to the Constitution and the law which he must apply without fear, favour or prejudice.

As the Lesotho court of appeals warned, where a member of the prosecuting authority is appointed as acting judge his or her “official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors”. Such a person will not be independent as required by the law because he or she will be accountable to someone with a direct stake in the outcome of criminal cases.

Which brings me to Radebe’s second brilliant argument. He says the Constitution guarantees the independence of the NPA, so an employee of the NPA could therefore not be said not to be independent when acting as a judge. Oh dear, they must have forgotten to teach either logic or reason in Leipzig and Moscow.

First, it’s great to hear the Minister has had a change of heart and now believes in the independence of the NPA. When he defended the appointment of Menzi Simelane a mere three months ago he made it clear that he did not believe in such independence. It is also great that he has now corrected his boss, President Jacob Zuma, who said two months ago that the government is the NPA’s boss. Now that he has changed his mind and believes the NPA is independent, he will obviously ask the President to fire Simelane, who has a different view.

Second, Radebe seems to have a bit of difficulty to understand the concept of independence. Even if the NPA is independent from the government, it prosecutes cases to court. An independent member of the NPA who acts as a judge may therefore be asked to hear a case prosecuted by one of his colleagues. Such an acting judge could therefore not possibly be independent AS A JUDGE because he will not be independent from the NPA who is prosecuting the case before him or her – if he is still employed by the NPA.

Radebe seems to be unaware that an independent member of the NPA cannot at the same time be independent FROM the NPA.

In any event, Radebe also announced that Mpshe had resigned from the NPA. If he had any sense he would have focused on that fact to answer his critics. But he could not do so, because that would have amounted to an admission that serving NPA staff should not be appointed as acting judges and that, in turn, might have required him to admit (gasp!) that he was wrong. And I am told people who studied in Leipzig in the eighties do not like doubt and very much hate being wrong.

← Earlier Posts Newer Posts →