Constitutional Hill

Scorpions

Why did this happen?

Jul 15th, 2011
by Pierre De Vos.
122 comments

The report by the Public Protector into the attempted leasing of a building by the Police in Durban from Mr Roux Shabangu’s company (the guy who first claimed that he was good friends with President Jacob Zuma before inexplicably claiming that he was not good friends with Zuma), leaves one big question unanswered.

That question is: why? 

Why would the Police, who only a few months earlier had indicated that they wanted to have a new building built to house the KwaZulu/Natal headquarters of the Police, now rush to conclude an unlawful lease with Mr Shabangu’s company at tripple the market value? Why would the Police Management ignore the warning by SAPS KZN Head: Property Management, Colonel AT Ngema, not to enage directly with Mr Shabangu? Why would they ignore Ngema’s second warning, which reads in part: 

I would like to advise the management to refrain from engaging with the prospective landlords i.e. 477 Smith Street as this will jeopardise the tender processes, create false hope or give unfair advantage to them. I would like to end by committing my support to my management with whatever decisions they take but also ensuring that they are protected from the bad publicity and unnecessary media attention which might be raised by matters like this.

Why – according to documentation reproduced in the Public Protector’s report - did the National Police Commissioner first instruct his underlings not to renew any leases without his approval and then indicate that he had identified the Roux Shabangu Building for leasing? Why did the Police Commissioner deny this – despite the documentary and other evidence which confirmed this fact?

Why was Commissioner Cele so upset when an official in the Public Works Department correctly pointed out that the Police were acting in an unlawful manner by directly negotiating with Mr Shabangu and why was she then removed from her post? Why does the Police Commissioner now maintain that he knew almost nothing about the leases and that he signed documents that were placed before him on advice of others? Is he merely incompetent and reckless about the spending of public funds or is he not being entirely truthful?

Why was Minister Geoff Doidge removed from his position by President Jacob Zuma after he and the Director General launched an investigation into procurement activities of the Department and after he had instructed that the two leases relating to Mr Shabangu be suspended?  Why was the new Minister Gwen Mahlangu-Nkabinde so anxious that the leases proceed?

She even obtained a two paragraph “opinion” from the State Law Advisor to contradict the real opinions of several senior advocates in order to ensure that the leases are concluded. Was the reason for this that, as Mr Shabangu reportedly claimed, she was like Mr Shabangu’s “elder sister”? Is it true that Mr Shabangu stormed into the Director General’s Office and threatened him and if so, why did the Minister not do anything about this?

Why did Minister Mahlangu-Nkabinde not co-operate fully with the Public Protector and why did she refuse to answer some of the questions pertaining to these leases put to her by the Public Protector? What did she have to hide and was she hiding something on someone else’s behalf? Why did the Minister meet with Mr Shabangu on several occassions and why did they have frequent contact on the phone? Given the fact that her predecessor was fired, was she not afraid that President Zuma would fire her and if not, why would she believe that the President would protect her?

The Public Protector’s report found that the Police Commissioner and the Minister had acted unlawfully and were guilty of maladministration. But because the “why” question had not been answered, it found that it could not say for certain that any criminal activity took place. Once we know why this all happened, we would also know whether anyone should be prosecuted for corruption. 

The behaviour of the various role players is very difficult to explain in the absence of corruption of some sort. No one has been able to explain why the rules were broken so flagrantly and with such vehemence. If there were no inappropriate relationship between Mr Shabangu and some role players (the Commissioner, the Minister, the President or the ANC), the whole saga makes no sense whatsoever.

Such an inappropriate relationship could have come about because of payment of money, the provision of other favours or because of another kind of inappropriate personal relationship between any number of the parties. At this point we therefore do not know whether Mr Shabangu corrupted anyone and if he did, who was corrupted. Usually, the Police would be able to follow up on such serious questions by investigating the links between the parties and where prima facie evidence of corruption is procured by getting search warrants to search the relevant premises associated with the relevant role players (Mr Shabangu, Mr Cele, Ms Mahlangu-Nkabinde, Mr Zuma, the ANC) in order to determine whether money had changed hands.

But as the Police themselves are implicated in this scandal, this will not happen. As the Constitutional Court found in the Glennister case, the Hawks, who reports directly to the Police Commissioner, is not independent enough to conduct such an investigation. In the absence of the Scorpions or a similarly independent body, no proper criminal investigation will be conducted. The situation which has now arisen therefore vindicates the majority judgment in the Glennister case and underlines, again, the urgent need for the creation of a truly independent corruption fighting unit.

But when such a unit is finally set up, it will probably be too late to investigate the allegations of corruption linked to the Police leasing scandal. And who knows how many billions of Rand would have been lost to other forms of corruption by the time this happens? 

Mduli’s conspiracy claim vindicates ConCourt

Apr 4th, 2011
by Pierre De Vos.
22 comments

The front page of The New Age (if you did not know, it’s a newspaper bankrolled by President Jacob Zuma’s good friends – the Gupta family) contains a story that would have sent shockwaves through the media and the political establishment a few years ago. Perhaps because the story appeared in The New Age (which is not widely read, either because it’s lay-out is ugly and cheap-looking, because it usually contains a high number of bone-grindingly boring stories, or because it has not built up much credibility amongst those people who buy newspapers carrying “serious news”) it has not yet – as far as I know – been commented upon or taken up by other publications.

The story “reveals” that supporters of President Jacob Zuma are being “undermined” to weaken them before the ANC’s next elective conference - all apparently part of a move to oust Zuma at said conference. I quote (no link provided on The New Age site):

Beleaguered crime-intelligence boss Gen Richard Mduli discovered – before his arrest – a “plot” by certain elements within the Hawks to discredit politicians who are close to President Jacob Zuma….The New Age has learnt that the targeted pro-Zuma supporters in the ANC and its alliance partners include among others SA Communist Party secretary-general and Higher Education Minister Blade Nzimande, ANC secretary-general Gwede Mantashe, MKMVA chairperson Kebby Maphatsoe and the military veteran’s secretary-general, Ayanda Dlodlo…. [A crime intelligence source] said this included the leaking of damaging information by certain members of the Hawks and the police to the media that they were corrupt and benefited from lucrative deals because of their open support for Zuma.

Of course, the story sounds rather familiar. Last time Jacob Zuma and some of his supporters were targeted by a corruption-fighting unit (the now defunct Scorpions), the allegations of political conspiracies also did the rounds. Many people believed it too, perhaps because even some people who were not great supporters of Jacob Zuma suspected that then President Thabo Mbeki could not be trusted and that he and his allies might very well have been using the Scorpions to get rid of Zuma so that Mbeki could become President of the ANC for life. (A suspicion given some credence, one might add, by the release of edited versions of taped phone conversations which suggested that Mbeki allies wanted to time the arrest of Zuma with one eye on the Polokwane election.)

This time around the claims of a political conspiracy might be slightly less plausible as the head of the Hawks was appointed by President Jacob Zuma himself. Moreover, the head of the Hawks reports to “General” Bheki Cele, who was himself appointed to his post by President Zuma. Claiming that these two gentlemen are now plotting to assist with the defeat of President Zuma at the next ANC conference or that they might be turning a blind eye to such plots, seem rather implausible – and not only because the allegations were published in The New Age.

Nevertheless, questions will be asked by the more credulous among us – even when the allegations of Mduli seem less than plausible – exactly because those involved in Mduli’s case is supposed to be – like Ceasar’s wife – beyond reproach (which they can never be, given the political nature of the leadership of the Hawks, the crime intelligence and of the Police Service).

Mduli was, of course, not arrested for corruption but for allegedly being involved in a murder. But the Hawks were involved in this case as it is apparently a “priority crime” to murder one’s former lover’s boyfriend. Regardless of whether this case deals with corruption or not, it does illustrate the problem that can be created when a police unit is not perceived to be free from possible political interference.

The story therefore underlines just how correct the Glenister judgment of the Constitutional Court was and how important it is for the fight against corruption that South Africa gets a truly independent corruption-fighting body free from political interference and free from any perception that the body is open to political interference. It also illustrates why the recent practice of appointing political party hacks like Selebi and Cele as Police Commissioner is a very bad idea. Politicising the police leadership serves as an open invitation to crooks, scoundrels, charlatans and the odd innocent person to try and discredit the police because of the alleged political agenda’s of the police leadership.

We know that whenever the word gets out that individuals (whether they are politicians, businessmen or full time crooks) are being investigated for corruption or whenever anybody is arrested after being implicated in corruption, the first thing the person and all his supporters inside and outside the ANC Youth League will invariably say (whether he or she is as guilty as Jackie Selebi and Schabir Shaik or as innocent as a heavenly angel) is that he or she is being persecuted and that the investigation or arrest is all part of a political plot by enemies of the ANC/the State/the National Democratic Revolution/the Truth/the Leader/God/Father Christmas. (I slipped in that last option just to check whether you, my dear readers, are still awake.)

This has become a political cliché and, quite frankly, a bit of a joke: as if every crook and charlatan has gone to the same public relations school and has been told that when arrested they have to allege a political conspiracy. Of course, some of us are now so cynical about these laughably stupid claims of political conspiracies that we might not be able to spot the few individuals who might be innocent (or might be less guilty than claimed). Who knows, as we speak some people might indeed be targeted for investigation and arrest as part of a political conspiracy and we might not know this because we would now never believe anyone making that claim.

Although most of us might be cynical about such claims and might laugh at the absurdity of it all (having heard it all before), quite a few South Africans (and a few journalists at The New Age, it seems) are prone to believe such allegations. The reason why anyone would still believe this kind of allegation is because those who investigate corruption and those who arrest people for allegedly being corrupt are not part of an independent body completely free from political influence. They are appointed by politicians and report to politicians and – let’s face it – when politicians are involved in such matters it is entirely plausible to believe that plots and backstabbing is to blame for the arrest of a person rather than to believe that the person’s own greed and corrupt activities led to his or her demise.

Even when individual members of the police or the Hawks act absolutely according to the book, the perception amongst some people will remain that political appointed corruption busters and police leaders, who are accountable to politicians and whose brief is determined by politicians (as is the case with the Hawks), can never be independent.  This leaves open the door for people like Mduli to claim that he is a victim of a political conspiracy to unseat the President of the ANC at its next elective conference.

If Mduli had been investigated and arrested by a truly independent body or by police officers led not by a politician who happens to be a close friend of the President, but by a professional and a career police officer, it would have been far more difficult for him to make allegations of a political plot. And maybe then even the journalists at The New Age might have thought twice before publishing these allegations of a conspiracy as if this was proven fact.

Scorpions was not truly independent

Mar 22nd, 2011
by Pierre De Vos.
75 comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Why the Hawks?

Aug 14th, 2010
by Pierre De Vos.
43 comments

Last week members of the Directorate for Priority Crime Investigation (also known as the Hawks) swooped on the offices of the Sunday Times and arrested Mzilikazi wa Africa. Reports suggest that he was arrested for fraud, uttering and defeating the ends of justice for being in possession of a letter purporting to be a resignation letter from the Premier of Mpumalanga. This was already rather odd and disturbing, as being in possession of a fraudulent letter does not constitute a criminal offense.

But throughout the affair something else has been bothering me. Why would the Hawks investigate a matter of fraud and defeating the ends of justice against anyone? Remember, the Hawks was created after the tenderpreneurs like Brett Kebble, the fraudsters like Jackie Selebi, and the politicians like Jacob Zuma and Ngoako Ramatlhodi (who were both targeted by the Scorpions for allegedly being involved in corruption) got their way to abolish that unit.

According to the South African Police Services Act, the Hawks is empowered to investigate “priority crimes”. The Act defines “priority crimes” as “organised crime, crime that requires national prevention or investigation, or crime which requires specialized skills in the prevention and investigation thereof”. It is far from clear that being in possession of a forged letter (which, as I have noted above, is not a criminal offense in our law) would constitute a priority crime as defined by section 17A of the Act.

If a crime was committed at all, it is clearly not an organised crime to possess a forged letter of resignation or even to be involved in the forging of that letter. This is also not an alleged crime that requires national prevention as it is not part of a larger network of crimes that are so embedded in our society and so endemic that ordinary members of the police cannot deal with it because of the sheer scope of the criminality across the country.

It is also rather difficult to see how one would be able to argue that the alleged crime requires specialised skills to investigate. One surely does not need specialised skills as a police unit to read a fraudulent letter and distil its meaning, to trace the origins of the letter by asking Telkom where the fax machine from which the letter was faxed was situated, to impound the relevant computer equipment, and to get experts to analyse the computer equipment to see if the letter was written on a specific computer.

Unless the ability of ordinary police officers to investigate crime is so catastrophically absent as to make them utterly useless, one would be hard pressed to claim that this was a crime requiring specialised skills to investigate. This case therefore does not seem like a “priority crime” at all.

Does this mean the Hawks illegally got involved in the investigation of this alleged crime and the arrest of Wa Africa? Maybe it did, but then maybe it did not.

Section 17D(1)(a) of the South African Police Services Act states that the Hawks can usually only investigate priority crimes. However, section 17D(1)(b) of the same Act states that the Hawks can also investigate “any other offence or category of offences referred to it from time to time by the National Commissioner”.

Ahhh, I hear you say, so the National Commissioner could have asked the Hawks to investigate this pressing matter of a journalist being in possession of a fraudulent letter. Good on our Police Commissioner for being so on top of his job and being so diligent and eager to address the terrible problem of fraudulent resignation letters that is eating away – like a cancer, I tell you –  at the very heart of our democracy!

There is only a small little problem with this kind of analysis. The problem is that the National Commissioner is Bheki Cele, the same Bheki Cele whom Wa Africa had reported on in the previous week’s issue of the Sunday Times for signing some document which might or might not have been a lease for the renting of a building – without the tender for that lease being issued as required by the law. Wa Africa had therefore co-authored a newspaper story which implicated Cele in alleged corrupt activities and a week later the Hawks arrested him. This is a rather surprising coincidence, to say the least.

Does this mean that after the Sunday Times published the story suggesting that Cele was involved in corrupt activity, Bheki Cele (with disturbing images of his predecessor, Jackie Selebi, being sent to prison for 15 years for corruption fresh in his mind) pro-actively decided to teach this journalist a lesson and ordered the Hawks to investigate and arrest Wa Africa for being in possession of a fraudulent letter (which, I repeat, is not normally a criminal offence)?

So, at least two distinct but perhaps interrelated questions arise. First, does it mean that there is more to the Sunday Times story than we know and that the Police Commissioner is a thoroughly corrupt man (following in the proud footsteps of his predecessor) and that he may have received some money or other benefits for signing off on the lease of a new Police Headquarters building? Second, did the Police Commissioner abuse the power bestowed on him by the Act by ordering the Hawks to arrest the journalist who had gotten too close to the truth on his corrupt activities?

Of course, these are questions – not assertions. Although this whole story smells very messy, we do not have enough information to know what really happened here.

Yet, a third question does, of course, also arise. If the Police Commissioner was indeed corrupt (hey, it has happened before, but I am not claiming at this stage that I believe he is) and if he is the one who can order the Hawks to investigate (and one presumes also not to investigate) certain crimes, does this mean that we will never really know about the Police Commissioner’s alleged illegal activities? Who will investigate any credible evidence of corruption against the Police Commissioner now that the Scorpions have been abolished? (The Sunday Times story is not very clear, so it is not possible to say from the available evidence whether credible evidence of corruption by the Commissioner actually exists.)

Testimony at the Glen Agliotti trial suggests that Brett Kebble and other crooks were paying the then Police Commissioner and now convicted fraudster, Jackie Selebi, (and who knows who else in the ANC?) to make sure that the Scorpions would be killed off. They did this because they feared the Scorpions. They feared the Scorpions because it sometimes actually did its work properly and was at arms length from the police, whose commissioner was a crook, could therefore be bought, and could therefore make investigations go away.

Can any reasonable person still argue that abolishing the Scorpions was not done – at least, in part – for an ulterior purpose? I would like to hear from that lone voices (the usual suspects who never fail to take a gallant stab at defending the indefensible) who will be prepared to argue that ulterior motives had nothing to do with the demise of the Scorpions. If anyone can convince me of that, he or she could probably convince any parent to send their ten year old son on a one month camping trip in the wild with a group of Catholic Priests.

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. 

The Scorpions saga continues, but to no avail?

Apr 30th, 2009
by Pierre De Vos.
52 comments

Hugh Glenister is lodging yet another court application to try and have the legislation abolishing the Scorpions overturned. After reading the papers submitted to the Court I am rather skeptical that this new application will be successful. Glenister’s main argument is that the legislation was passed because the Scorpions “has been too effective when it comes to investigating various high-profile members of the ANC”. He contends that the decision was taken “in order to protect various ANC members from current and future investigations by the DSO [Scorpions]“.

If he could show this to be true, so the argument goes, the decision would be in conflict with the Rule of Law which requires that legislation has to be “rationally connected to a legitimate governmental purpose” and could be declared invalid by a court of law. This is because a decision solely aimed at protecting ANC members from investigation and prosecution would not qualify as a “legitimate governmental purpose”.

This is a good constitutional argument but the problem is that it would be almost impossible to show that there was no legitimate governmental purpose for abolishing the Scorpions. The legal test is not whether the decision was wise. Even a catastrophically stupid decision will be constitutionally valid unless it could be shown that the only reason it was made was for an ulterior purpose.

The government has provided several legitimate – if rather unconvincing reasons – for the abolition of the Scorpions and a court will not be able to second guess these reasons in the absence of “smoking gun” evidence showing that the only reasons for this decision was to protect Mr Zuma or other criminals within the ANC. The separation of powers requires a court to be circumspect when considering declaring legislation invalid on the basis that it was in contravention of the Rule of Law.

After all, judges are not democratically elected while members of Parliament are. It is therefore not for a court to correct the mistakes made by the legislature. It is for the electorate to correct the mistakes by throwing out the incumbent government who made the disastrously stupid decisions which will make us all suffer more from corruption.

A more promising line of argument presented in the papers is that some of the members of Parliament who passed the legislation should not have taken part in the decision because they had been investigated – and in some cases prosecuted – by the Scorpions for their role in the Travelgate scandal. This, so Glenister argues, constitutes a conflict of interest.

It is clear that it would have been wise for those MP’s with a conflict of interest to have recused themselves from the proceedings. The decision would have had more legitimacy if they had done so and it was clearly tainted by the presence of some of these people in Parliament. But it is not clear whether the Constitution requires those MPs who had a conflict of interest to recuse themselves. One could argue that MPs passing legislation cannot be equated with state officials taking an administrative decision. They are exercising a legislative function and in terms of our system of party discipline follow the dictates of the party leadership.

I for one would be surprised if a judge agree that on this basis alone legislation that would otherwise have been passed validly became invalid. Once again, the separation of powers question would be uppermost in the mind of a judge confronted with this question.

What Glenister’s papers do highlight is the complex and problematic nature of the relationship between the government of the day and the ruling party. Our Constitution is silent on what exactly this relationship should be. The new ANC seems to have a rather troubling view of this relationship as it seems to feel that the government is accountable to the NEC and not to Parliament. The papers note that in January last year Mr Matthews Phosa stated that:

  • “The president of the country takes guidelines, mandates and instructions from the ANC …There is only one centre of power and that is the highest decision-making structure of the ANC”.
  • “The NEC, including the President of the ANC, in effect becomes the representative of the majority of voters between elections. Its task therefore is to instruct the executive and legislative organ of government on issues of policy.”
  • “The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does”

This view of the party seems deeply problematic for our constitutional democracy as it seems to want to bypass the constitutional institutions such as Parliament when it comes to the accountability of the executive. But it must be conceded that this is a complex question as our electoral system and our system of party discipline clearly require some interaction between the leadership of the majority party and the government.

A balance need to be struck. President Mbeki seemed to have gone too far to the one side and if Mr Phosa has his way the ANC will now go too far to the other side. The NEC of the ANC has a duty to set policy but must then allow the executive to implement that policy as best it can. The ANC NEC must also allow Parliament to do its oversight job over the executive and must not usurp the powers of the democratically elected members of Parliament. After all, the NEC was elected by 4000 people while the members of Parliament were elected by 17 million people, so for the NEC to want to micro manage the executive would be profoundly undemocratic.

In any event, I will be surprised if this new application has any success. The Scorpions is no more and the voters did not see that this will affect the way in which the state delivers services to them, so they did not punish the ANC for this very dumb decision. If opposition parties had done a better job of linking the demise of the Scorpions to the rise of corruption and the deterioration of service delivery, maybe the ANC would have been punished more at the polls.

But this did not happen and perhaps it is not for a court to “correct” the mistakes of the electorate as this will not be in the interest of democracy.

Curiouser and curiouser in Wonderland

Mar 27th, 2009
by Pierre De Vos.
49 comments

Curiouser and curiouser!” cried Alice…. – From Alice in Wonderland.

You’ve got to love this country. Who needs The Bold and the Beautiful or Generations when you have the Zuma-saga to provide drama, mystery and intrigue? Now we are told (but can we believe this?) that Mr Zuma’s lawyers handed evidence – recordings of tapped phone conversations involving former Scorpions boss Leonard McCarthy and former NPA head Bulelani Ngcuka, among others – to the NPA earlier this year as part of their representations as to why Zuma’s corruption case should be dropped.

According to the Mail & Guardian the recordings “are understood to include” material showing then Scorpions boss, Leonard McCarthy, in a very bad light indeed.

He allegedly makes statements, including “Mbeki is my president, he will always be my president”. After Mbeki’s Polokwane defeat, he allegedly said: “We must wipe the blood off our faces … it is time for a come-back strategy.” Also in the recordings:

  • McCarthy allegedly refers to Mbeki’s instructions that neither Zuma nor police commissioner Jackie Selebi should be charged before Polokwane, as the perception of victimhood would work to their advantage;
  • There was reference to Zuma allegedly reneging on a 2003 deal to retire from politics in exchange for the dropping of the prosecution against him. A Zuma insider told theM&G that there had been such an approach to Zuma, but that it had gone nowhere because he was affronted; and
  • There was reference to Mbeki ordering a third draft of the Scorpions’ “Browse Mole” report, which investigated allegedly illicit foreign funding for Zuma, even though Mbeki’s office publicly condemned the report.

Am I the only one to think that, if this is true, it is very bad news not only for Mbeki and Zuma, but also the NPA? If true, it demonstrates that both camps in the ANC power struggle abused (or are still abusing) state institutions such as the NPA and the police or intelligence services in their fight for power. Good thing the ANC has always maintained that the organisation is unified and that talk of divisions are a “deliberate falsehood” spread by the counter-revolutionary media. Otherwise I might have been worried about the sanity and health of the ANC and the threat the organisation posed to – dare I say – national security.

But let us look at the law. The tapping of phones are regulated by the snappily named Regulation of Interception of Communications and Provision of Communication-Related Information (Act 70 of 2002). This Act prohibits the interception of communications without the consent of the parties – unless specific narrowly defined criteria are met.

In certain emergency situations – where there are  reasonable grounds to believe that a person has caused serious bodily harm or is about to do so, for example – law enforcement officials are authorised to tap phones without obtaining permission from a judge  but only if it is not reasonably practicable to obtain that permission in time – given the urgency of the matter. Even then those officials have a duty to inform a judge after the fact.

In most cases phones can only be tapped where a judge gives permission and then only where the  judge concerned is satisfied that there are reasonable grounds to believe that a serious offense has been or is being or will probably be committed or where national security is threatened. Even then, unless exceptional circumstances exist, a judge can only give such permission if it was demonstrated that:

there are reasonable grounds to believe that the interception will actually obtain the relevant evidence and other investigative procedures have been applied and have failed to produce the required evidence or reasonably appear to be unlikely to succeed if applied or are likely to be too dangerous to apply in order to obtain the required evidence and that the offence therefore cannot adequately be investigated, or the information therefore cannot adequately be obtained, in another appropriate manner.

If these tapes do exist, the first question will therefore be whether a judge has approved the eavesdropping and on what grounds he or she did so. Unless a judge had reason to believe that McCarthy, Ngcuka and others were threatening the security of the state or that Mbeki was planning a coup, for example, I would be surprised if such permission had been granted. There is therefore the very real possibility that the eavesdropping was in contravention of the Act.

Second, it is a criminal offense to hand over such information – even if legally obtained – to private individuals. Unless I missed it, (and let’s face it, the Act is not a model of clarity and simplicity) the Act does not prohibit a private person from receiving such information and being in possession of such information. This does not mean, however, that Mr Zuma’s lawyer and perhaps Mr Zuma may not have contravened the law because in common law it is an offense to assist another person in committing a crime and those who received the information obviously assisted by making it possible for the illegal handing over of the information. They will therefore also be guilty of a criminal offense.

If the reports are true, Mr Hulley (and maybe Zuma) have exposed themselves to criminal prosecution – which would not be a very wise thing to do unless one was sure that one would never be prosecuted because, well, because one had the police who had to investigate the crime in your pocket.

A third question is whether such illegally obtained information could be used in Mr Zuma’s criminal trial. Section 35(5) of the Constitution states that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice. I am not a criminal procedure expert, but the jurisprudence seems pretty clear that such evidence will not be admissible in Mr Zuma’s criminal trial.

But would it be permissible in an application by Mr Zuma for the permanent stay of prosecution? I have no idea, but the question is, will such evidence assist Mr Zuma’s application? After all, Judge Harms recently stated in the Nicholson appeal that an ulterior motive alone will not make an otherwise lawful prosecution unlawful. Even if the tapes therefore show that the Scorpions boss was motivated by his loyalty to Thabo Mbeki, this in itself will not save Zuma from prosecution.

It therefore seems perplexing that Mr Zuma’s high powered legal team would have submitted this perhaps illegally obtained evidence to the NPA, thus exposing themselves to criminal prosecution. Moreover, if this is all true, Zuma and his legal team would have made a monumental political blunder.

In as much as Zuma had the moral high ground – at least in the eyes of some of his supporters – because of the perception that state institutions were abused to prosecute him, the use of illegally obtained evidence would completely undercut this position as it would demonstrate that Zuma was also abusing state institutions to try and avoid his day in court. In the process he would have managed to expose the NPA, but would have also destroyed the credibility and legitimacy of the security services, thus endangering our national security.

This means that all those Zuma supporters who enthusiastically cheered the firing of Vusi Pikoli because he allegedly endangered national security would – if they had even a smidgen of integrity – now have to  call for the removal of Mr Zuma as President of the ANC and for the prosecution of those who leaked the tapes and those who used it.

As I said, curiouser and curiouser, it gets.  Welcome to the mad hatters tea party. “Off with their heads, I say!”

National security? Then why is the President not stepping in?

Feb 19th, 2009
by Pierre De Vos.
21 comments

There seems to be stand-off between the high brass of the police and the National Prosecuting Authority (NPA). Newspapers report that the police tapped the phones of the head of the Scorpions to try and ¨get¨ those who were investigating Police Commisioner, Jackie Selebi, then charged the çlead investigator in the Selebi matter, and now the police leadership is refusing to hand over documents needed for the Selebi case to the NPA.

Now this could get ugly. Surely our security is being threatened? Some would even call this a national security issue. Frene Ginwala say, or those ANC members on the ad hoc committee of Parliament who rubber stamped the decision of the President to get rid of Pikoli to ensure he does not charge the President of the ANC.

As the person who is responsible for national security – ostensibly the reason for the firing of Vusi Pikoli – one would have thought that the President would long ago have stepped in to ensure co-operation between these two organisations. Or to put it more bluntly: the President should long ago have taken steps to ensure that the police leadership does not try and derail the investigation against Selebi.

Yet, as far as we know, nothing is being done. Why? I smell a big, fat, stinking rat.

This suggests, first, that Selebi must be a very powerful man who holds some secrets that some in the ANC would rather not want to see revealed. What does Selebi know and who can he implicate? He must have some choice tidbits of scandal on the ANC that would make the Carl Niehaus scandal look like a sunday school picnic. Maybe he and Mendi Msimang – whose wife is being kept on as Minister who does nothing to ensure he does not sing about the ANC finances – should get together for a drink? Maybe they can invite Glen Agliotti….

Second, it shows just how spurious the reasons for Jackie Selebi`s suspension and ultimate firing have been. Surely, if the prosecuting authority and the police are at war with one another and the police leadership is trying to stop the proper investigation of the Police Commisioner who has admitted to being friends – ¨finish and klaar¨- with a mafia type drug lord and underworld kingpin, then sombody really concerned about so called national security would have stepped in.

But we do not hear a peep from the President and the stand-off between these two institutions continue.

Pikoli is now trying to argue before the High Court that ulterior motives animated his firing. Sadly there is no smoking gun here so although his firing was illegal it will not be that easy to prove because it is not easy to prove the real motive of those who claim a different motive

But
for ordinary citizens with at least two brain cells it must be very clear what is going on here. Pikoli was suspended by Mbeki because he wanted to arrest Selebi and now he was fired because the ANC wants to appoint a new NDPP who will find a ¨political solution¨for the Jacob Zuma case.

This in some weird way is understandable, because if Zuma actually has to face his day in court he will be destroyed when all the damaging evidence is brought to light about all the money he received from Shaik and all the favours he did for Shaik in return. Even if he is acquitted, most sane people will not trust him after a trial. So a trial must be stopped at all cost.

I am holding thumbs for Pikoli because as even that party hack Frene Ginwala found he is a man of the highest integrity. No wonder the ANc wants to get rid of him. Here`s a thought – pity Carl Niehaus does not have a law degree or could not have fabricated one as he could then have been appointed as NDPP. He would surely know how to deal with national security in a way that suits the ANC…

The Concourt’s wise decision on the Scorpions

Oct 22nd, 2008
by Pierre De Vos.
27 comments

For a change a court has handed down a decision just as I had predicted. The Constitutional Court today declined to intervene at this stage to hear arguments about the possible unconstitutionality of the abolition of the Scorpions.

The application, brought by businessman Hugh Glennister and supported by opposition parties and the Centre for Constitutional Rights, requested the Constitutional Court to set aside the decision of the Cabinet to abolish the Scorpions even before the relevant legislation was dealt with and adopted by Parliament. The Constitutional Court did not rule on the merits of the case, but in effect argued that the application was premature as the matter was still being dealt with by Parliament.

In doing so, the Court relied on the doctrine of separation of powers, which is not mentioned explicitly in the Constitution but is assumed to be part of the structure of the Constitution. Although I am not in favour of the scrapping of the Scorpions, the judgement by the Constitutional Court seems wise and astute, as it reflects an appropriate respect by the Court for the other branches of government.

The judgment quoted the following passage from its judgment in Doctors for Life International v Speaker of the National Assembly and Others:

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.

The Court pointed out that it was being asked to consider a matter that is “presently within the sphere of responsibility of Parliament” and pointed out that the Constitution vests Parliament with the primary oversight function of the executive. The Court is thus being asked to intervene before Parliament has concluded its work.

It found that ordinarily a court will not interfere with the functioning of Parliament, but that a court in South Africa “may intervene if there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object”. To be succesful with such an extraordinary application, an applicant will have to show that the resultant harm will be “material and irreversible”. This, the Chief Justice said, was a formidable burden to meet. Cases that would warrant intervention on this approach would be extremely rare.

That burden was not met in this case. Lawyers had argued that because of the large number of resignations from the Scorpions over the past year, by the time the legislation is passed the Scorpions would have been destroyed. But the Constitutional Court pointed out that it was not clear at the time of the application what Parliament would decide to do. Parliament may have chosen to make significant and substantial amendments to the draft legislation or it may have chosen not to enact the legislation at all.

It was also not clear that the members of the Scorpions have been leaving because of the decision to initiate legislation to scrap the Scorpions. The causal relationship, therefore, between the executive decision to introduce the legislation and the fact that many members have left has not been clearly established.

The appropriate time to bring an application would be after Parliament had passed the legislation to disband the Scorpions. It was only then that the Constitutional Court would entertain the merits of the case .(A case which, in my opinion, is also not very strong.)

I am not a great fan of this kind of application as it attempts to legalise a political issue and creates the impression that political debates about the wisdom of scrapping the Scorpions should be circumvented by an (unelected) court. In South Africa we have a tendency to run to the courts to solve political problems – instead of fighting about the merits of the arguments in the political arena.

This is not good for our politics or for our courts, because it treats voters as passive bystanders and ignores the importance of political mobilisation for the health of a democracy. We want the courts to do out dirty work for us – which places the courts in an untenable position and unecessarily exposes them to attack by unscrupulous politicians.

This judgement signals that the Constitutional Court – although ready to defend the Constitution – will not easily interfere with the workings of the democratically elected branches of government. It demonstrates a respect for the electorate and for the democratic institutions created by our Constitution. I just hope that the media reports correctly on this case and do not blame the Constitutional Court for the abolition of the Scorpions.

It’s the ANC who is to blame for this decision and if people do not agree with it, they should organise protest marches or vote for another party come the next election. They should not attack the Constitutional Court.

An “activist” judgment?

Sep 15th, 2008
by Pierre De Vos.
77 comments

The first rumblings are being heard about the judgment handed down last Friday by judge Chris Nicholson in which he found that the NPA should have afforded Mr Jacob Zuma the opportunity to be heard before he was re-charged. Mr Zuma’s supporters might well interpret criticism of the judgment as sour grapes or as more evidence that they are not the only one’s to undermine respect for and the independence of the judiciary through criticism and threats.

But there is of course a huge difference between informed and principled criticism of judgments on the one hand, and personal attacks on the politics of certain judges or threats against the judiciary on the other. So there is nothing wrong with dissecting the Nicholson judgment to see whether an appeal court may not come to a different conclusion. When doing so, critics must be careful though not to suggest that the decision was taken for expedient political reasons.

An analysis in today’s Business Day skirts close to the edge on this score. The article notes as follows:

The legal experts suggested that the reason Nicholson decided to take this interventionist route was in order to find a clear-cut legal solution to a political dilemma crippling the country and threatening the independence of the judiciary.

This was the question of whether the corruption trial against Zuma should go ahead or whether a “political solution” should be found to allow Zuma to assume the role of president without criminal charges hanging over him. Opponents of this approach said it would fatally undermine the rule of law.

The legal experts said the judgment could be understood as a very pragmatic intervention by the judiciary to “make the Zuma trial go away” in order to protect its independence and ensure that it retained the power to intervene in other matters. “If there is a fight between the ANC and judiciary to the bitter end there can only be one winner and that won’t be the judiciary,” one said.

The lawyer said that for short-term political reasons the judgment was clearly good “because it puts a stop to what was becoming very ugly and at least it is a judge who does it, not politicians, and that is probably the best way out”.

“The judicial system has put a stop to the whole trial, which is good and good for the judiciary. The fact that it was a white judge may start getting people to think that the output of the judiciary is not entirely determined by race. Transformation of the bench is a much more complicated matter than the necessary but not sufficient condition of race,” he said.

As someone who really thought the judgment would go the other way – based on the text of the Constitution and the NPA Act – I might not be the best person to evaluate the correctness of the legal arguments in the judgment, but one or two legal moves by judge Nicholson will definitely raise eyebrows amongst those legal eagles who closely follow this kind of thing.

Judge Nicholson found that the decision to prosecute Mr Zuma must be assumed to have been taken by the Scorpions – although the National Director of Public prosecutions (NDPP) clearly was involved with this decision. This is because if the NDPP “was to properly exercise” his powers to review decisions by Provincial Directors of Public prosecution to prosecute or not prosecute anyone, it must be assumed that he did not take part in this decision – otherwise it would nulify his independence required to review the decision later.

This is quite a dexterous and innovative deployment of legal logic to get to where the judge wants to go, and I am not sure a higher court will come to the same conclusion. This is because his “finding” is clearly contradicted by the actual facts as the NDPP did make the decision to prosecute Mr Zuma.

Secondly, because the NPA Act was drafted before the creation of the Scorpions, it does not mention the right of the accused to make representations to the NDPP in the event of him reviewing the decision by the head of the Scorpions or in the event of him reviewing an earlier decision by himself or his predecessor. According to judge Nicholson this was self-contradictory and even absurd because the crimes investigated by the Scorpions are often far more serious than those prosecuted by the Provincial DPP’s.

Even where the original decision was made by the NDPP himself, it would be absurd if a later decision to prosecute or not to prosecute was also not subject to the requirement to afford the accused the opportunity to make representations for the same reasons that the NDPP would only get involved in original decisions of this kind in situations where very serious crimes are involved.

Judge Nicholson therefore read words into the NPA Act to change the meaning of the Act so that from now on whenever the NDPP or the Deputy NDPP (like the one heading the Scorpions) review a decision to prosecute, the accused will also have a right to make representations before a decision is taken.

This is a rather bizarre application of the remedy of reading-in.  The Constitutional Court developed this remedy and has only ever used it in cases where it was found  that there was a clear breach of the Constitution. Only then does it consider whether an appropriate remedy for a breach of the rights of an individual might not be to read words into the Act to remedy the defect in the Act.

But in this judgment words were read into the Act without such a finding of a clear breach of the rights of an accused. It therefore seems to me that judge Nicholson completely overreached in making this move. If his precedent is followed, a judge could read words into any act that seemed contradictory or strange – even where no breach of the Constitution was found. This, to my mind, would pose some serious threats to the principle of separation of powers as it would in effect give the judiciary legislative powers to change legislation which was badly written or did not suit the sensibilities of an individual judge.

If the NPA appeals this judgment, they would have quite a few arguments they could therefore plausibly make before the Constitutional Court and may well have a strong prospect of success. But I guess we might have moved beyond mere legal technical arguments and that for political reasons the NPA might well not appeal the judgment or might decide not to re-institute charges against Zuma.

But I was wrong about the way in  which Nicholson would decide on Friday, so in the present political climate it might be better for me to refrain from any predictions on this score.

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