Constitutional Hill

Schabir Shaik

Great start President Zuma, but there are many more questions to be answered

Mar 10th, 2010
by Pierre De Vos.
38 comments

It is gratifying to see that Michael Hulley, President Jacob Zuma’s personal lawyer, today announced that the President has finally provided a list to the Secretary of Cabinet “containing any gifts, benefits or financial interests held or received either by him or by any family member, as required in terms of the Executive Ethics Code”. In a statement, Hulley claimed (rather implausibly) that the delay in submitting this list resulted from uncertainty about the nature of the disclosure to be made, as well as the extent to which declarations of family members were required.

In deciding whether to accept or retain any gift, the President has applied the same high ethical standard he otherwise would have in respect of other members of the Executive. In any event, whilst these gestures are highly appreciated and of immense sentimental significance, none of the gifts are of extraordinary monetary value.

The attendant delay in completing this task responsibly has created an opportunity for some to unfairly speculate without substance. The President does not hold any directorship, membership or shareholding in any company, either public or private, nor is he associated in any way therewith.The suggestions to the contrary are devoid of any truth and are regrettable.

As I pointed out before, section 6 of the Code states that like all other Cabinet members, the President must disclose his own financial interests and those of his spouses, permanent companions and dependent children including: shares and other financial interests in companies and other corporate entities; sponsorships and their sources and “other assistance” and its sources;  ”gifts and hospitality” and its sources; “other benefits” and their sources; foreign travel paid by a sponsor and the description of the sponsor; the land and property owned; and the pension owned, its sources and value.

Section 7 of the Code also requires the President to record some financial interests in the secret part of the register. These include: the value of interests in a corporate entity other than a private or public company; the details of foreign travel when the nature of a visit requires those details to be confidential; the details, including the address, of any private residence; the value of any pension; details of the financial interests of a member’s spouse, permanent companion or dependent child; and the member’s liabilities.

One would assume that in order to demonstrate that the President has nothing to hide, the Secretary of Cabinet will immediately make public that part of the declaration that is not deemed secret by the Code. Although there is no legal obligation to do so, one would also assume that given the lingering questions about President Zuma’s financial dealings, he would also volunteer to make public the private aspects of the declaration – at the very least to the extent that it deals with his own finances. Such a gesture may well silence his critics and will allay fears about the extent to which private benefactors have been bankrolling the President and his family.

The public part of the declaration only relates to gifts and benefits given to President Zuma’s since he took office, and would thus not give any indication of the President’s current financial health and the extent to which private benefactors had bankrolled Zuma (if at all) before he took office. It would also not give any indication of the President’s financial liabilities.

The last point is important, as it relates directly to the prosecution and conviction of Schabir Shaik. As I wrote before, the President had told Parliament in 2003 that the more than R1 million he had received from Shaik was a “loan” and therefore need not have been declared. The court found that Zuma would not have been able to repay this “loan” using his salary as Deputy President. Given the fact that Zuma was unemployed for most of the period since the court made this finding, the characterization of this “loan” by Zuma at this stage would be of cardinal importance.

If the President has not listed this amount as a liability, it would mean either that he had paid off the “loan,” or that he now agrees that this was not a loan at all, or that Shaik had forgiven the loan. All three possibilities pose serious questions about the President’s finances.

If he now claims that he had paid off the “loan”, one might well ask who had given Zuma more than R1 million to do so, what the relationship of this benefactor is to Zuma and whether the President has done any favors for this person or whether the person has received any government contracts.

If Shaik had forgiven him the “loan”, then one would have to ask why he had done so and whether the President could now lawfully pardon Shaik. If Shaik had indeed forgiven the “loan”, a question may arise about whether this was done to “buy” a pardon – something that would make a pardon unlawful.

If Zuma now agrees that the money was given as a gift and that it was never a loan at all, he would be conceding that he had defrauded Parliament when he had claimed in 2003 that the money Shaik had given him had indeed been a loan.

It is commendable that in his statement Hulley says that “as Head of State and Government, the President is most mindful of government’s commitment to transparent governance and accountability, to which principles he remains committed in leading government”. These fine sentiments would remain no more than empty words unless the President takes us into his confidence and tells the nation exactly what the state of his financial affairs are.

Jacob Zuma has flouted ethics rules before

Mar 8th, 2010
by Pierre De Vos.
16 comments

No wonder President Jacob Zuma is flouting the provisions of the Executive Members Act. He has gotten away with this kind of thing before. In 2003 Zuma was in serious trouble after it emerged that he had received millions of Rand from fraudster Schabir Shaik without declaring these benefits as required by the Code of Ethics promulgated in terms of the Executive Members Act.

In 2003, following weeks of correspondence with Zuma, the Ethics Committee of Parliament exonerated Zuma – who was then still the Deputy President and therefore a very powerful man. The Committee had accepted his explanation that the “loans” given to him by Shaik were not free, but bore interest: “As there is no evidence at hand that contradicts the authenticity of the loan agreements, it is recommended that the loan agreements submitted by the Deputy President be accepted as valid and correct,” the committee concluded.

The report tabled on 19 November 2003 said, “In this matter the Deputy President provided documents to the Committee which verified his response that there was no benefit received. It is on this basis that the Committee finds that there is no breach to the code of conduct.”

The problem is that the High Court, in finding that Shaik had paid Zuma a bribe, found that these documents submitted by Zuma to Parliament were concocted by the conspirators in order to hide the fact that the money was a benefit and not a loan.

The Shaik judgment thus provides proof “beyond reasonable doubt” that Zuma had in fact defrauded Parliament (much like Tony Yengeni, who was sentenced to three years imprisonment after his fraud came to light). Zuma, however, was never prosecuted for defrauding Parliament, despite the fact that the “loan agreements” he had submitted to Parliament were found to be fraudulently made.

In the judgment in which Schabir Shaik was convicted of bribing Zuma, the court found that the various “loan agreements” which Zuma had submitted to Parliament was nothing of the sort. As Judge Hillary Squires recounted the evidence, these various agreements were hastily drawn up in anticipation of the Code of Ethics kicking in: As Squires noted:

It is also clear from the evidence of Linda Makathini, the official legal adviser to the Deputy President, that the Executive Code of Ethics Act had been promulgated in October the previous year and the resultant Code was in the process of being drafted and actually came into existence in the following year. To show loans made without interest being payable under that Code, would amount to a benefit which would require a special declaration. If they carried interest, on the other hand, they were regarded as a liability and did not….

One only has to consider the financial position of the Nkobi Group as at the date of signature of this document [the loan agreement] to see how divorced from reality it was as a genuine business proposition….

We thought eventually the State’s contention about these documents was well founded. They are clearly not what they purport to be and were probably drawn up when this sort of information had to be disclosed by Members of Provincial Executive Councils and it would have been a suspicious circumstance if these payments had not been recorded as a loan. The evidence regarding the second such agreement, that is the agreement of loan of 16 May 1999, is hardly any better as a genuine statement of what it purports to be…

But then, even if these could be regarded as loans despite all the evidence to the contrary, the basis on which they were made would, in our view, unarguably amount to a “benefit” within the meaning of the word in the Corruption Act. [The Code also requires Cabinet Ministers to declare "benefits".]

Thus, although Zuma had contended to Parliament that the sums of money he had received from Shaik were loans and hence did not have to be declared, the court found that the money given to Zuma could not have been loans and even if they were, these “loans” were given on such beneficial terms that they would constitute a “benefit” for the purposes of the Corruption Act – let alone the Code of Ethics. Zuma was therefore misleading Parliament when he claimed otherwise. This may very well have constituted fraud for which Zuma may – if he was charged – very well have been convicted and sentenced to three years imprisonment.

When Zuma was fired as Deputy President by President Thabo Mbeki after the Shaik verdict, he also resigned as a member of Parliament despite the fact that Mbeki had made no effort to fire him from Parliament. There was a very good reason for his sudden resignation. If he had remained an MP, the Ethics Committee would have had to re-open the probe against him and would have had to accept the factual finding in the Shaik case that the “evidence” provided by Zuma that the money received from Shaik was a “loan” and not a “benefit” as defined by the Code, was fake.

Zuma would then probably have been found guilty by the Committee of breach of the Code of Ethics and could then also have been charged with fraud. He therefore had no other option but to give up his seat in the National Assembly and forfeit the salary that went with it. His very freedom depended on it.

Given Zuma’s narrow escape around the fraudulent “loan agreements”, it is no wonder that President Zuma is trying to avoid declaring his financial interests and benefits and those of his spouses, companions and dependent children. If benefits were received and they were not declared and he was caught out again, he would surely go down.

Of course, it might be that Zuma, his spouses, companions and dependent children had not received any benefits from anyone since he had become President. Even if he and his family have indeed received such benefits they might well be above board in that they might have been given in the spirit of generosity. Unlike in the Shaik case where the money was given as a bribe, it might be that any benefits given to Zuma more recently were not given to secure favors from the President in return for the benefits. In that event, Zuma would have nothing to fear from declaring these benefits (if any).

The fact that he has not declared anything and is claiming rather laughably that it is unclear whether he needs to declare anything, will, however, raise serious questions about Zuma’s honesty and integrity and his ability to stay on the right side of the corruption legislation. If he honestly declares all his interests, he will go a long way to answer those questions and clear up the dark cloud hanging over his head. If he continues to stonewall, we will be well within our rights to conclude that Zuma has not learnt his lesson from the Shaik fiasco and that he is (still) implicated in corrupt practices.

Only time will tell.

What now for Shaik and De Kock?

Feb 23rd, 2010
by Pierre De Vos.
25 comments

The Constitutional Court today found that the President had erred and had acted irrationally by not affording the victims of “politically motivated crimes” a hearing before making a decision on whether to pardon the perpetrators of those crimes. In Albutt and Others vs President of the RSA and Others Chief Justice Ngcobo, writing for a unanimous court, upheld the decision of the High Court. The High Court interdicted the President from pardoning these prisoners before affording the victims a hearing about the matter.

In this case the stated purpose of pardoning the prisoners for their “political crimes” was nation-building and national reconciliation. The court thus held that the participation of victims was crucial for the achievement of these objectives. It could therefore not be suggested that the exclusion of the victims from the special dispensation process was rationally related to the achievement of the objectives of the special dispensation process.

The court made it clear that the judgment only applied to the group of prisoners who were going to be pardoned as part of a special process to deal with the “unfinished business” of the Truth and Reconciliation Commission. What distinguished this category of prisoners from others not before the court was:

that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive; the objective of these pardons is to promote national unity and reconciliation; and the crimes concerned were committed in a particular historical context. Different considerations may very well apply to other categories of applications for pardon. This judgment does not therefore decide the question whether victims of other categories of applications for pardon are entitled to be heard. That question is left open.

The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them. However, it confirms that the President does not have an unfettered discretion to pardon prisoners. The President is bound by the principle of legality, which is part of the rule of law, when exercising his power to pardon prisoners.

This means two things. First, the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the exercise of that power. In other words, there must be a rational link between the purpose that the President wishes to achieve by granting a specific pardon and the actual granting of that pardon. A President is therefore obliged to identify the purpose he wishes to achieve by granting a pardon and to make a case for why there is a rational relationship between that purpose and the granting of said pardon.

Thus, if the President were to pardon Shaik and De Kock, he will have to say why he did so. A court will then be allowed to determine whether the identified purpose is rationally related to the granting of the pardon.

If Shaik were to be pardoned for the purpose of advancing national reconciliation, say, it would be rather difficult to show that there was a rational connection between this pardon and the achievement of national reconciliation because Shaik was not convicted of a “political” crime. Shaik is an ordinary criminal who happened to have bribed the President, so pardoning him could not be said to have anything to do with the achievement of national reconciliation. Instead it would have everything to do with the granting of a political favour to a friend. As the Court explains:

The executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.

What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.

This brings us to the second requirement for a valid granting of a pardon. The pardon must be granted for a constitutionally valid purpose. If the pardon was granted merely to do a friend a favour, or to prevent that friend from spilling the beans about your own involvement in criminality, or because that friend happened to have paid you bribes worth millions, it would not constitute a “constitutionally valid” purpose for pardoning the friend.

The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners. But it also reminds us that the rule of law requires the President to act rationally when doing so. The President thus has a constitutional duty to state clearly what the purpose of the granting of the pardon might be. That purpose had to be a legitimate purpose. It could not have the purpose merely to advance the personal interests of the President himself or the party he happens to lead.

If De Kock and Shaik are pardoned, the presidency will therefore have to concoct a very good excuse – otherwise the decision could very well be set aside by a court.

Why no investigation of the “abuse of power” by NPA

Jan 18th, 2010
by Pierre De Vos.
17 comments

When President Jacob Zuma was still being investigated by the National Prosecuting Authority (NPA), his supporters often claimed with some conviction that there was a conspiracy against him.  Although they never claimed that the evidence – on which basis his then financial advisor,  Schabir Shaik, was convicted of bribing him – was in fact fabricated, they did claim that the NPA were being abused by President Thabo Mbeki or those close to him to neutralise Zuma politically. 

Although no hard evidence exist about the alleged abuse of power, circumstantial evidence suggest that there may very well have been some political interference in the NPA, first to ensure that Zuma was not prosecuted, then to ensure that he would be prosecuted and then finally to have the charges against him dropped.

After all, Shaik, who has recently risen like Jesus from his death bed (perhaps with the assistance of Goji berries), was prosecuted while Mr Zuma was at first not prosecuted. Later Zuma was prosecuted while many others implicated in the arms deal scandal (include Shaik’s brother Chippy) were not pursued.

When charges were dropped against Zuma after edited snippets of illegally obtained transcripts of telephone conversations between the head of the Scorpions and a former National Director of the NPA were submitted to the NPA by Zuma’s lawyer, many Zuma supporters demanded that the alleged abuses of power by NPA be investigated. The SACP, for example, demanded that:

  • All those found to have been responsible for abuse of state institutions must be immediately brought to book, irrespective of the position they occupy or may have occupied, even if the highest office in the land, in order to ensure that such things never ever happen again in our country.
  • Parliament must call the NPA and any other state institutions that may be found to have transgressed the law to fully account for their actions.

One of President Zuma’s key supporters, Mathews Phosa, made a similar demand. As the Mail & Guardian reported at the time, Phosa said:

“I call on the NPA to immediately institute an objective review, not a witch hunt … in cases within which similar actions might have negatively impacted on the rights of innocent South Africans,” Phosa told a breakfast hosted by the Progressive Business Forum at Gallagher Estate in Midrand.

“There exists a strong perception that Mr Zuma is not the only victim of this vicious, vicious misuse of power and authority, and this perception should be clarified forthwith,” Phosa said. He appealed to South Africans to “move on” however he added that in order to move forward as a nation the country could not “sweep the misuse of power under the carpet”.

I was therefore shocked when President Zuma said during his disastrous interview on ETV last week that he would not call for any investigation into a claimed abuse of power within the NPA relating to the corruption case against him. He claimed that as he was involved in the case it would not be proper for him to make any decision on an investigation and tried (rather clumsily and in an embarrassing manner) to pass the buck by saying that this was not his problem but the previous President’s problem: “These are the questions you should have asked the president then.”

A few questions arise from this response.

First, when will the SACP and Phosa issue angry statements condemning President Zuma for wanting to sweep the alleged abuse of power by the NPA under the carpet? Will Phosa and Blade Nzimande resign from the cabinet in disgust at this implicit condonation of abuse of power by the NPA? If they do not, would we be justified in concluding that they have no principles?

Second, why has the President now decided not to have the charges of an abuse of power by the NPA investigated? Surely, as President, he should be concerned about such things and about the possible breaking of the law? Might it be because he had purported to appoint Menzi Simelane as NDPP and thus now believes that Simelane will protect him and do his bidding (as Simelane has himself said he would). Does the President now believe that the alleged abuse of power by the NPA is not such a bad thing – as long as it occurs to protect him and his supporters and not to prosecute him?

Third, if the President really believes, as he claimed, that he cannot order an investigation because he was personally involved in the case of alleged abuse of power by the NPA, how come he then appointed Simelane as NDPP? Should he not have recused himself from making a decision about who should serve as NDPP, seeing that Simelane might well still be involved in a decision about his case? Will he apply the same principle that he has now enunciated when he is called upon to decide on granting a pardon to the man who was convicted of bribing him and if he would not, would we be justified in concluding that our President has no principles whatsoever?

Lastly, if the President really believes that his government should not or cannot take any action regarding anything that happened during the time of a predecessor (as he claimed on ETV), how on earth would his government ever be able to correct the mistakes of the previous government? Surely he was elected at Polokwane exactly to correct the mistakes of the Mbeki era? Now he claims his government cannot deal with something that happened under Mbeki, which seems like an extraordinary abdication of responsibility. Does this mean he is fundamentally reneging on the promises made to all the delegates who voted for him at Polokwane?

It seems to me some kind of inquiry into the alleged abuses of power by the NPA is drastically needed so that we can find out – as the SACP rightly said – whether such abuses did occur and (perhaps more importantly) how we can prevent such abuses from happening again. Without an investigation trust in the NPA would not be restored.

The reluctance of the President to launch such an independent investigation will give credence to the views of those who believe that the “abuse of power” claim was something cooked up by Zuma to avoid the fate of his former financial advisor. It will also leave South Africans with the serious worry that Zuma might not in principle be opposed to the abuse of the NPA for political purposes, and that he will engage in the same kind of abuse of the NPA that he accused former President Mbeki of. 

A short lesson on Presidential pardons

Jan 13th, 2010
by Pierre De Vos.
27 comments

Ok class, listen up. A short lesson on Presidential pardons seems to be called for. The lesson is required because seldom has so much nonsense been spoken by so many different people with different political convictions, than recently on the granting of Presidential pardons.

First the President claimed wrongly that Schabir Shaik had not applied for a pardon, then his office claimed that a decision by the President to pardon anyone could not be reviewed. And today the DA’s James Selfe said it was currently not clear whether a Presidential pardon could be taken to court for review.

The DA has proposed a private members Bill that would require the Minister of Justice to make a written recommendation to the President on whether to pardon an applicant and would require the President “to take into account” the recommendation before granting a pardon. The Bill would require the minister to have regard to a list of guidelines before making a recommendation  to the President. These guidelines are currently non-biding guidelines used by the ministry of justice to process pardons and to advise the President and include:

* The age of the offender at the time of the commission of the offence;
* Whether a reasonable period has lapsed since the conviction;
* Circumstances surrounding the commission of the offence;
* The nature and seriousness of the offence;
* Personal circumstances of the offender at time of application;
* The interest of the State and the community; and
* The interests of the victim, if any.

Currently the President is not bound by these guidelines or by the recommendation of the Minister of Justice and a decision to pardon anyone is his alone. Both the Presidency and the DA seems blissfully unaware of the existence of a Constitutional Court judgment in the case of President of the Republic of South Africa v Hugo in which it confirmed that any decision by the President to pardon anyone had to conform to the Constitution and could be reviewed by a court.

If Mr Selfe had taken the time to have a quick look at this case, he would have realized that his draft Bill, if passed, might well run into serious constitutional difficulties. Writing about an almost identical provision in the interim Constitution, Justice Goldstone stated that:

The powers of the President under section 82(1) are expressed in wide and unqualified terms. Unlike most other presidential powers they can be exercised without the concurrence of the Cabinet…. his discretion is unfettered, in the sense that it is not expressly limited by the interim Constitution.

A law that would require the President to consult the Minister of Justice and to take into account a recommendation of the Minister will either be utterly irrelevant and useless (if the President could ignore the guidelines or the recommendations of the Minister altogether) or it would fetter the discretion of the President as it would force him to make a decision based on the guidelines set out in the Bill and the recommendations of the Minister made in terms of the guidelines.

In the latter case – which seems a more likely reading as the Bill would require the President to apply his mind to the recommendations and if he failed to do so a court would be able to set aside his decision – the provisions of the Bill would probably not pass constitutional muster. An ordinary law cannot limit the almost unfettered powers granted to the President by the Constitution. This is an inevitable consequence of the supremacy of the Constitution. Mr Selfe seems sadly unaware of this rather obvious fact.

This does not mean that where the President pardons an individual, that decision cannot be reviewed by a Court. As Goldstone stated in the Hugo case:

In cases where the President pardons or reprieves a single prisoner it is difficult, (save in an unlikely situation where a course of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power… This does not mean that if a president were to abuse this power vested in him or her under section 82(1)(k) a court would be powerless, for it is implicit in the interim Constitution that the President will exercise that power in good faith. If, for instance, a president were to abuse his or her powers by acting in bad faith I can see no reason why a court should not intervene to correct such action and to declare it to be unconstitutional. For example, a decision to grant a pardon in consideration for a bribe, could no doubt be set aside by a court. So, too, if a president were to misconstrue his or her powers I can see no objection to a court correcting such an error, though it could not exercise the discretion itself.

So if the President pardons Schabir Shaik because he fears that Shaik will spill the beans on the mutually symbiotic (and corrupt) relationship between himself and the President or because Shaik had deposited a million bucks into his bank account, the decision could be set aside by a court.

But what would happen in this case where Shaik was convicted of bribing the President? If the President now pardoned Shaik would a court find that this decision was taken in bad faith because it was irrevocably tainted by the previously corrupt relationship between him and Shaik? I might be wrong, but I suspect the Constitutional Court will not declare the granting of such a pardon an act of bad faith as there is no evidence that the previously corrupt  relationship between the President and Shaik had continued after Shaik went to hospital… err I mean prison.

This does not mean it would be wise for the President to pardon Shaik. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.

No one has presented a plausible argument that Shaik was wrongly convicted. It would manifestly also not be in the public benefit to pardon Shaik as it would send a signal that all are not equal before the law and that if one happens to be a friend of the President one could escape just punishment for corruption merely because of one’s connections to the head of state. This would undermine respect for the rule of law and would surely send a signal that in South Africa who one knows is far more important than what one did or did not do.

Herewith ends the lesson.

Medical Miracles (ad infinitum)

Dec 14th, 2009
by Pierre De Vos.
30 comments

Schabir Shaik, who was convicted of bribing President Jacob Zuma and sentenced to 15 years imprisonment for bribing our President, was unlawfully released from prison on 3 March 2009 on medical parole “to die a dignified death” because he was supposedly in the last stages of a terminal illness. Mr Shaik has now been a free man for more than 250 days after being released for supposedly being at death’s door, which just goes to show that he was released based on lies and deception.

Of course, we know Shaik was not at deaths door (because we saw the report prepared by the doctors who never said that he was in the last stages of a terminal illness), and we thus know for a fact that the parole board released Shaik unlawfully as Shaik did not meet the legal criteria for release.

Meanwhile Shaik has been spotted playing golf (but not – yet – doing what that other famous golfer seems to have been doing over the past few years). A medical miracle indeed.

In a written reply to a parliamentary question by the Democratic Alliance, Correctional Services Minister Nosiviwe Mapisa-Nqakula said  last week Shaik was authorised to attend physiotherapy from 10.30am to 12.30pm on the Wednesday when he was spotted on the golf course, which prompts one to wonder whether his physiotherapist might not be an avid golfer.

The newspaper article about him allegedly being spotted playing golf at a club in Durban was brought to his attention and an explanation was requested from him. ”Mr Shaik submitted a statement in this regard wherein he refuted the allegation,” Mapisa-Nqakula said.

So, let’s get this straight. The Minister is taking at his word, a man who was convicted of fraud and corruption and was found by the trial judge to lack any honesty and credibility. I really have a nice piece of lush forest land in the Karoo I want to sell to the Minister along with shares in a pyramid scheme. Come to think of it, maybe I can get the Minister to ask Father Christmas to bring me a Porsche. (I have always been envious of the Judge President because he drives a Porsche while claiming to care about transformation and the poor.) If she believes Shaik, she must surely also believe in Father Christmas, the tooth fairly and the integrity of the arms deal.

Mapisa-Nqakula also said she had no evidence that the doctors erred in their recommendation to grant Shaik medical parole, nor that the Correctional Supervision and Parole Board erred in its decision. Well, this is unfortunately not true. The Act states that a person has to be in the last stages of a terminal illness and THEN the parole board can consider him or her for release. The doctors never said that Shaik was in the last stages of a terminal illness, hence the parole board erred. The Minister’s claim that there is no evidence that it erred is so preposterous and laughable that it really casts a very dark shadow over the integrity and honesty of our Minister.

It is amazing how some among us would not play fast and loose with the truth in order to ingratiate yourself with The Leader.

We all know Shaik was released because that is what President Zuma wanted. The fact that the release was illegal is just by the by. It has been more than 250 days now since the parole board has first acted unlawfully and since various Ministers have condoned this unlawful actions by providing ridiculous and untrue explanations for the release, for the legal basis of the release and for the reasons not to refer the matter to the parole appeals board.

Nothing will of course be done about this flagrant disregard of the law in order to benefit the man who bribed our President, because in the world of some people the law only applies to ordinary people – not to friends of the President (especially not friends of the President who bribed that President) and definitely not to her holy highness the Minister of Correctional Services.

Wonder how long before we spot Shaik having tea with President Zuma and Julius Malema? Another 250 days perhaps?

Shaik pardon: unwise but not illegal?

Oct 20th, 2009
by Pierre De Vos.
59 comments

The news that “terminally ill” Schabir Shaik, who was released from prison on medical parole “to die a dignified death” at home, has applied for a Presidential pardon does not come as a surprise. Shaik is not an ordinary criminal. He is a criminal convicted of bribing the President of the country. He gave more than R1 million to the President and managed to convince the President to do favours for him in return. He also solicited a bribe from an arms deal company executive on behalf of the President. This is the same executive whom the President himself has met on at least two occasions – although the President unfortunately misled Parliament about at least one of these meetings, denying that it took place.

Moreover, Shaik’s brother is the newly appointed head of the South African Secret Service (SASS). He is also the brother of Chippy Shaik, who was fingered in the report of the NPA and the Auditor General into arms deal corruption and who later fled to Australia to avoid prosecution for arms deal corruption (and perhaps to avoid further embarrassment which resulted from the revelation that he had plagiarised his doctoral thesis).

I imagine Shaik would fancy his chances to be granted a full pardon by President Jacob Zuma long before that mysterious “terminal illness” brought an untimely end to his life. Shaik, after all, might have some rather damaging secrets (or at least gossip) that he would be happy to keep for himself in return for a pardon.

Opposition parties are of course rightly outraged by the prospect of Shaik receiving a pardon from the very person whom Shaik had bribed. Democratic Alliance spokesperson James Selfe was predictably hysterical and over the top, saying that if President Jacob Zuma granted Shaik’s application it would constitute a decisive step toward the “complete corruption of the South African soul”.

Patricia de Lille “pointed out” that the law said that an applicant should meet certain criteria to qualify for a pardon - he should have served a significant part of his sentence, for example, or have shown remorse for his crime. “One of the pardon conditions is that you must have served a substantial part of your sentence and on that basis alone Shaik fails hopelessly,” said De Lille.

A pardon would, of course, be shocking and would make a complete mockery of the statements by President Zuma that his government was tough on corruption. If our President pardons Shaik, I for one would laugh hysterically and derisively every time anyone in the government talks about the evils of corruption. Not that our President would be alone in this. Bill Clinton also pardoned some foul crooks who donated money to his political campaign and although he was rightly vilified for this cynical use (or is it abuse?) of his power, the American soul was probably not completely corrupted by his shifty move. Clinton was “merely” exposed as the slimy politician he was.

I am also not sure that Patricia de Lille is correct and I would be surprised if any court found that a pardon for Shaik was unlawful. Section 84(1)(j) of the Constitution states that the President is responsible for “pardoning or reprieving offenders and remitting any fines, penalties or forfeitures”.

The Constitutional Court has confirmed that this section conferred a very broad discretion on the President. It originates from the prerogative powers that have been traditionally vested in the English monarch, but now vests in the Constitution and an exercise in terms of this provision can therefore be reviewed by the courts. Though there is no right to be pardoned, every applicant had the right to have their pardon application considered and decided upon rationally, in good faith, in accordance with the principle of legality, diligently and without delay.  

In President of the Republic of South Africa and Another v Hugo the Constitutional Court stated this power was granted to the President “to determine when in his view the public welfare will be better served by granting a remission of sentence or some other form of pardon”. According to the Hugo case there are at least two situations in which this executive act of the power to pardon may be important. Firstly, it may be used to correct mistaken convictions or reduce excessive sentences and secondly, it may be used to confer mercy upon, inter alia, individuals when the President thinks it will be in the public benefit for that to happen.

The Constitutional Court was also very cautious to note that “the power of pardon is not subject to cabinet concurrence or to legislative control, but is conferred upon the President directly by the … Constitution.” The exercise of this power is reviewable but, said the Court in the Hugo case “in cases where the President pardons a single prisoner, it is difficult, (save in an unlikely situation where a cause of conduct gives rise to an inference of unconstitutional conduct), to conceive of a case where a constitutional attack could be mounted against such an exercise of the presidential power.” The pardon will thus be reviewable is limited to very narrow grounds, like whether the President acted in good faith or was bribed.

During the saga surrounding the pardoning of Allan Boesak, the Presidency stated that when the Department of Justice considers an application for pardon to advise the President, the following factors, as contained in internal policy guidelines, are taken into consideration:

  • The age of the offender at the time of the commission of the offence; 
  • Whether a reasonable period has lapsed since the conviction; 
  • Circumstances surrounding the commission of the offence; 
  • The nature and seriousness of the offence; 
  • Personal circumstances of the offender at time of application; 
  • The interest of the State and the community; and 
  • The interests of the victim, if any.

I guess if Shaik is granted a pardon, the President will argue that a pardon was granted because of the personal circumstances of Shaik, him being at deaths door and all. This will constitute an outrageous act of political expediency and cynicism for which President Zuma will sadly pay a very small political price in the long run. It will remind the chattering classes and the media elites of the fact that although our President is a charmer, he has had some very dodgy dealings with crooks in the past. Although the print media and the non-state TV channel might criticise Zuma, people have short memories so come the next election it would probably not have any effect on the ANC’s electoral performance.

But for those of us with long memories such a pardon – if granted – would remain as a permanent stain on our President’s name, much like the name of President Clinton was permanently sullied by the pardons he granted in the last hours of his Presidency to some serious crooks who had given money to his political campaigns.

Medical Miracles (IV)

Sep 24th, 2009
by Pierre De Vos.
86 comments

It has now been 205 days since Schabir Shaik was released on medical parole because he was allegedly “in the final phase of a terminal disease or condition” and was sent home in order “to die a consolatory and dignified death”. (These are nor my words, but the words used in section 79 of the Correctional Services Act.)

Of course, we know that an individual can only be released in terms of section 79 after a medical practitioner treating the criminal had indeed diagnosed that criminal as being in the final stages of a terminal illness. We have also known for a long time that Shaik’s doctors never diagnosed him as being in the final stages of a terminal illness and that he was therefore released unlawfully.

After 205 days as a free man, Shaik remains very much alive. This is no surprise as he never was at deaths door when he was released. Despite the clear evidence that the release was unlawful, the Minister has steadfastly refused to refer the case the the Parole Appeals Board as he was obliged to do, claiming there was no evidence of wrongdoing. (Like the apartheid government who always claimed there was no evidence that the Police tortured and killed the opponents of apartheid, our Minister refuses to see what is before his very own eyes.)

The miracle here is of course not really a medical one at all. The miracle is that Shaik is getting away with this because he once upon a time paid bribes worth millions of Rands to our President, something our society does not seem to care about too much. Who cares that some animals are more equal than others? Who cares that poor, black criminals languish in jail and die there while well connected people like Shaik escape their punishment. Who cares about the principle of equality before the law. After all, there was no equality before the law during the apartheid era, so why should there now be such a thing?

Let us forgive and forget, I say! After all, this is the kind of thing the apartheid government did, so why should we be any better than they were. We have learnt well from our oppressors.

No Shaiking the truth

Aug 11th, 2009
by Pierre De Vos.
79 comments

Someone at the Correctional Services Department must have been taking a course in creative fiction writing. How else to explain their  most recent press statement which argues there is no basis to review the decision to free fraudster Schabir Shaik on medical parole?

Shaik – who was released because he was supposedly in the last stages of a terminal illness because he allegedly suffers from high blood pressure – was reportedly seen driving around Durban in his fancy BMW this weekend. His usually garrulous family declined to comment on his health, giving a little more credence to the report that a DA councilor spotted Shaik this weekend buying party balloons and looking in excellent health. The DA councilor claims he then followed Shaik to his house, but the security allowed Shaik to enter for a well deserved rest without the DA councilor getting the opportunity to inquire after Shaik’s health.

Perhaps this medical miracle was the result of Shaik taking part in a medical trial in Melbourne. The Science Daily reports that the clinical trial showed significant improvement in blood pressure of participants who were given a new catheter-based treatment where blood pressure lowering medication had failed. I can only hope that if Shaik is not on this treatment yet, he would immediately get access to this treatment to save his life. Driving when one is terminally ill must surely be very dangerous to one’s health!

In any case, the Department said despite the reports of Mr Shaik’s miraculous recovery, there was no basis for a review of the decision. According to a report in the Mail & Guardian the Department said:

“It must be remembered that Mr Shaik was examined by three medical doctors who concurred that he qualified for placement on parole in terms of Section 79 of Correctional Services Act,” the department said in a statement.

In terms of the Act, offenders who were in the final phases of a terminal illness could be placed on parole to die a consolatory death. The decision of the three medical doctors was also subjected to scrutiny by the Health Professions Council of South Africa, which actually cleared them of any wrong doing, the department said.

It was also crucial to note that the Act made no provision for re-incarceration of parolees who might have recovered or not died within a given period of time.

Now, this statement is, I am sad to say, untrue. First, three doctors did not – I repeat NOT – concur that Shaik qualified for placement on parole in terms of Section 79 of Correctional Services Act. It is worth recalling that section 79 states as follows:

Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of a terminal disease or condition maybe considered for placement under correctional supervision or on parole… to die a consolatory and dignified death.

We know that the doctors did not diagnose Shaik as being in the final phase of a terminal illness or condition. Instead what the doctors did say was that:

We cannot keep him in hospital indefinitely and since the prison authorities are reluctant to manage him at the prison hospital, where conditions are suboptimal, we recommend that he be considered for medical parole.

Although the doctors recommended Shaik for medical parole, they did not do so in accordance with section 79 as they did not find that he was in the final stages of a terminal illness as required by section 79. Legally, the effect of the doctors reports and recommendation was therefore utterly irrelevant and cannot be used to justify Shaik’s release. It had the same legal effect as a recommendation from a doctor to release Shaik because Shaik was a swell fellow, had a mean taste in cigars and was a friend of the President.

The factual basis for the recommendation did not conform to the requirements of section 79 and the Board was legally required to ignore the recommendation as it did not provide the factual basis required by section 79 for release. The fact that it nevertheless released Shaik, means that the Board did not act in terms of section 79 when it ordered Shaik’s release and hence, the Board most probably acted unlawfully.

That decision can be reviewed by a Court and set aside as it was not a legally valid decision. The principle of legality requires a public body exercising power in terms of legislation to act in accordance with that legislation. Where a public body ignores the requirements of the law when exercising a discretion it acts unlawfully and as such the unlawful decision can be reviewed and set aside by a court, which would mean Shaik was unlawfully released and that he should immediately be returned to prison where he belongs with the other 100 000 criminals duly convicted of terrible crimes.

In any case, the Minister has decided not to refer the matter the Parole Review Board despite the overwhelming evidence that the decision to release Shaik was taken unlawfully. The decision by the Minister can therefore also be taken on review on the basis that it was irrational or taken in bad faith, given the fact that the Minister was appointed by Shaik’s old friend and a benefactor of Shaik’s considerable (corrupting) generosity, President Jacob Zuma.

To be fair, if I was the Minister I might not have referred the matter to the Parole Review Board either. Driving a R1 million car and enjoying the other perks of being a Minister must surely weigh more heavily than any duty to adhere to the law. Who cares about the law? After all, the law is for poor people; for strikers and teachers and other sods who have not managed to ingratiate themselves with the powers that be.

If the matter had been referred to the Parole Review Board – as it should have been – and the Board had overturned the unlawful decision by the Parole Board, Shaik would have had to go back to prison where he belongs. The Department of Correctional Services are therefore not sticking to the truth when it says there is nothing to be done now that we seem to have come close to confirming that Shaik is not terminally ill and that he was released from prison because he happens to be a friend of the First Dude.

From Shaik’s perspective this is not a bad thing. After all, he is finally getting a return on his considerable investment in President Zuma. All those “loans” to Zuma, the sucking up, the payment of school fees and the soliciting of a bribe on behalf of Zuma is finally paying off! Who says crime does not pay – eventually.

Medical Miracles (III)

Jul 20th, 2009
by Pierre De Vos.
34 comments

It has now been 142 days since Schabir Shaik was released from prison on medical parole in order to die a dignified death in terms of the appropriate legislation. Shaik, however, is still very much alive. Newspapers even published a claim that Shaik was spotted in a fancy Durban Restaurant at the end of last month. Is this a medical miracle in the making?

Just a reminder that section 79 of the Act states that:

Any person serving any sentence in a prison and who, based on the written evidence of the medical practitioner treating that person, is diagnosed as being in the final phase of any terminal disease or condition may be considered for placement under correctional supervision or on parole, by the Commissioner, Correctional Supervision and Parole Board or the court, as the case may be, to die a consolatory and dignified death.

The fact that Shaik is still alive almost five months after being released on medical parole, means that either his doctors made a terrible mistake when they diagnosed him as being in the final stages of a terminal illness, or they never really diagnosed him as being in the final stages of a terminal illness but the parole board nevertheless unlawfully ordered his release and the then Minister of Correctional Services lied to the nation about the true state of affairs. (Well, either that or divine intervention is creating a medical miracle in front of our eyes.)

I will continue to remind readers every 30 days that Shaik is still alive. I really do not want Shaik to die. I just want him to go back to prison where the law seemingly requires him to be.

Every 30 days that Shaik remains alive provides more proof that the medical parole board released Shaik unlawfully and that the government (and specifically the Minister of Correctional Services at the time) lied about his condition. If he had been terminally ill when released – as required by the Correctional Services Act – Shaik would surely have been dead by now. With the passing of every month, the scandal of his release grows bigger. We should not forget this.

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