In a speech, delivered earlier this week at the Stellenbosch Business School, Mbeki seems to argue from a philosophical position that tries to marry very valid post-colonial concerns about the dominance of the world by Western-generated ideas promoted by a Western-centric media and Western military and political power, with insights from post-modern philosophy (in a decidedly Foucauldian turn) about the way in which our thoughts and actions are constrained by what we know and have the intellectual tools to think.

Mbeki quotes Donald Rumsfeld, who famously said:

Reports that say something hasn’t happened are always interesting to me because as we know, there are known knows: there are things we know we know. We also know there are known unknowns: that is to say there are some things [we know] we do not know. But there are also unknown unknowns – the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tends to be the difficult one.

Of course, it is difficult not to read the speech as an intellectual justification for some of Mbeki’s more disastrous interventions during his time as President of South Africa, most notably his dabbling in Aids dissidence, which we all know did not turn out too well for the former President or for all those who subsequently died of Aids related illnesses after choosing not to take live-prolonging anti-retroviral drugs (or did not have money to obtain such drugs in the private health care sector).

Mbeki seems to believe that one can distinguish between three types of knowledge. First, he seems to believe in something he calls “objective reality” or “objective truths” – that which “can logically and independently be established as ‘the truth’”. This kind of knowledge, he argues, “might very well be at variance with what we as Africans know to be the ‘knowledge’ at our disposal”. In other words, what is generally accepted as “true” (HIV causes Aids; Gadaffi was a tyrant; South Africa has a high crime rate), might differ from what Africans experience to be true.

Second, the knowledge we think are at our disposal may very well constitute “false knowledge” which may not be in accordance with the “objective truth” – independently established as the truth. We nevertheless may think it is true because we are told that it is true by those who control the discourse through control of the media, the culture and the political landscape. Thus we may believe that Gaddafi was on the brink of slaughtering many civilians because he was reported to have warned those who resisted his rule that patriotic Libyans would “cleanse” Libya “house by house” from the rats and cockroaches supporting the uprising against him, but this is a “false knowledge” as he would not have followed through on his threats.

As I understand Mbeki’s speech, he believes that there is also a third kind of knowledge. This is knowledge that ordinary people have about their lives or that is being explored by “outside-the-box” thinkers (like Mbeki!), but which have neither been accepted as “objective truths” nor exposed as “false knowledge” yet. (I imagine for Mbeki this would include the idea that many young people die in South Africa in part because they are poor and malnourished, not necessarily because they have the HI virus – which, after all, cannot cause a syndrome.)

Regardless of whether one agrees with this taxonomy of truth and falsehood, it is difficult to find fault with Mbeki’s contention that knowledge is contested and that the terrain is intensely political – especially for us Africans who live in a world profoundly affected by the consequences of colonialism and the traces of colonialist thinking. It is also difficult to disagree with his plea for more openness and a more critical approach to knowledge production. Only a fool will form firm opinions about world affairs by only watching CNN or Sky News.

Mbeki argues that the “false knowledge”, the kind of knowledge that we just know we know but has not been independently established as true, is produced by those who control the media and the means of knowledge production. That is why “it matters who has the capacity and ability to persuade the public about which ‘knowledge’ is ‘true’, and which ‘false’!” It is only when we democratise knowledge and let a thousand ideas bloom that false knowledge will be exposed and other kinds of knowledge will become accepted and, who knows, even accepted as “objective truth”.

This dialogue, says Mbeki, is important as it may also affect our understanding of what is “objectively truth”. Such truths can be overturned. This is because discovery of “the truth”, and therefore the accumulation of “knowledge”, constitutes an unending journey of discovery and what we consider to be truths today may well turn out to be false tomorrow as our understanding of the world around us change and hopefully deepens.

But how do we distinguish between (tentatively established) “objective truths” and “false knowledge”? And how do we distinguish between valuable truth and quackery? If all “objective truths” may well one day be falsified, why are they true now while “false knowledge” is not? Is it just true or false because powerful people said so? It seems that it is at this point that Mbeki’s valid argument about the intensely ideological nature about the production of knowledge deteriorates into mild paranoia and incoherence. Thus Mbeki warns against the destructive potential of the abuse of “knowledge” by those who exercise power, but does so in rather stark terms:

I say this because of the frightening reality contemporary society faces, of the capacity of a small but powerful minority of humanity, to determine what society should ‘know’, which passes as ‘knowledge’.

Is there really a grand conspiracy to fabricate some kinds of knowledge and suppress other kinds of knowledge to further the interests of those who dominate the world? I am not saying this never happens. After all, facts were twisted and intelligence reports manipulated to try and convince the world that Saddam Hussein had weapons of mass destruction and had to be stopped. But surely, more often than not people are the prisoners of their own world views and actually believe the things that they say and do (just like Mbeki is the prisoner of his own world view and believes the things he says and does.) This might produce tainted knowledge, but seldom because of some grand conspiracy.

Of course, the national and international media selectively report on news events and ignore some events and highlight others. That is why my Cape Times yesterday reported in a screaming front page headline that Baboons have invaded the houses of upper middle class residents, but said nothing about similar trials and tribulations experienced by inhabitants of poor areas of Cape Town. And scientists selectively investigate those problems that they find interesting or that that they think would bring them fame and money. Hence, lots of money is poured into medical research about heart disease and Alzheimer’s and very little on curing malaria. But it is not clear how this is part of a deliberate conspiracy to keep the rest of us ignorant and to push a nefarious agenda.

A second problem is that Mbeki does not consider the possibility that he may be part of the very system that produces “false knowledge” and that he might be producing such knowledge himself to further his own interests. After all, he is a powerful person (and used to be President of the most powerful country on the continent and what he said and did had enormous consequences – sometimes good and sometimes bad) for millions of people inside and outside South Africa. Mbeki somehow seems to exempt himself from the rules of the game that he is critiquing. Only other people fall into the trap of embracing “false knowledge” and only other people deploy such “knowledge” to advance their own interests.

While the rest of us are engaged in a never ending struggle to determine what the “objective truth” might be and while we are continuously duped by powerful dark forces into believing things that are just plain wrong, Mbeki alone (in his own mind) is far too clever to do so and therefore has the ability to identify “false knowledge” and “objective truths” properly. And when he does so, his own self-interests never come into play.

Yeah right.

Has Mbeki not, in the past, perpetuated “false knowledge” to advance what he believed to be his own interests and the interests of the government which he led? Thus, a few years ago Mbeki said in a TV interview that it was just a perception that crime was out of control in South Africa: “It’s not as if someone will walk here to the TV studio in Auckland Park and get shot. That doesn’t happen and it won’t happen.” Within days a CNN journalist and his pregnant wife were held up at gunpoint and robbed outside the very same building. He was defending his government and was trying to persuade us of something that was clearly not true.

And when he started questioning the link between HIV and Aids (“a virus cannot cause a syndrome”) and made statements warning against the toxicity of anti-retroviral drugs, he was using his power as President of the country to create a kind of knowledge (sadly accepted as “true” by many South Africans) that turned out to be very false and very deadly. Just ask Parks Mankahlana who reportedly died of an Aids related illness because he had stopped taking the live-prolonging anti-retroviral drugs that his boss had warned against.

The big problem is that Mbeki does not seem to heed the warning of Albert Einstein which he quotes in his speech. Einstein reportedly said: “Whoever undertakes to set himself up as a judge of Truth and Knowledge is shipwrecked by the laughter of the gods.” He correctly identifies a problem – namely that the construction of knowledge is not free of ideology and the influences of powerful interests. But he then seems to exempt himself from the rules of the game and sets himself up as the final judge of what is “true” and “false” knowledge, something that is impossible to do in terms of Mbeki’s own previous argument about the construction of knowledge.

When Mbeki pontificates about “objective truths” and “false knowledge” he is not free from ideology and self-interest and in this case the self-interest that runs like a golden thread through this speech is his need to justify his deadly dabbling in Aids dissidence and medical quackery. His tragedy is that – brilliant as he might be – he cannot see the contradiction in his own position.

If I have time in the next few days, I will critique former President Mbeki’s latest attempt at justifying his flirtation with Aids denialism and his unique interpretation of Muammar Gadaffi’s “peaceful” nature.  Recall for the time being that Gadaffi had warned Libyans rising up against his rule (people he called “rats and cats”, who were “drugged cockroaches”),  to hand over  weapons or “we will announce the holy march, I will call on millions from one desert to another to cleanse Libya house by house…”

But today I wish to raise an interesting point of constitutional law. Although it is never going to happen, I have been asked what would the legal position be if Thabo Mbeki is re-elected as ANC President at the end of the year. Would he be able to return as President of the country, given the fact that he never served a full second term as President?

Section 88(2) of the Constitution states that no person may hold office as President for more than two terms. The section does not say that a President cannot serve more than two consecutive terms, which means the Putin option is not available to a South African President who has served two full terms. A President can therefore not serve two terms, then do something else for five years, only to return to serve as the President for another 10 years after that.

But here is where things get murky. The ban on serving more than two terms as President is qualified by a sub-clause contained in section 88(2), which states that when a person is elected to fill a vacancy in the office of President, the period between that election and the next election of a President is not regarded as a term. Where a President is therefore elected as President after a general election, but then resigns or is fired by the National Assembly and is replaced by another President, the new President will serve the rest of the five year term without that part of the term counting as one of his two terms in terms of section 88(2).

This means that although Kgalema Motlanthe served as President after the removal of Mbeki, he did so to fill a vacancy in the office of the President and he would thus still be able to serve two full terms as President — were he ever to be elected as President of the ANC.

Although Mbeki did not serve a full second term, the wording of section 88(2) seems to be rather specific and does not allow a President who was elected after a general election and was then removed as President during his second term or resigned as President during his second term, to serve another (in effect, third) term later on.

There is a good reason for this. A President is not directly elected, but is rather elected by the members of the National Assembly. In terms of section 102(2) of the Constitution, the majority of members of the National Assembly can also fire a President and his or her cabinet for any reason they wish. For example, they can fire an aloof President who had lost the election for the ANC leadership — as they would have done with Mbeki if he had not resigned after being “recalled” by the ANC.

The majority party in the National Assembly can therefore dictate who must serve as President and had section 88(2) been phrased differently, the leader of that party would have been able to manipulate the support of his party MP’s to hold on to the Presidency indefinitely by a bit of crookery. If section 88(2) had provided that a President who had resigned before the end of his or her term would be assumed not to have served a term as President for the purposes of section 88, it would have opened the door for a President to serve for as long as his party wished him to serve as President.

All that a serving President would have had to do to achieve this, would have been to resign one month before the end of his or her second term — only to be re-elected for another “second” term after the next election. This is why section 88(2) disregards the part of a Presidential term served by a President taking over from an elected President during the five year life of a Parliament, but does not allow a President elected right after an election to discount his or her term served if he or she resigned or was fired before the expiry of a second term. However, the system can still be tricked, as a President who wished to serve more than two terms and who planned ahead could have another person elected as Presdident after the general election, only to replace that President after a month or two. This would, however, require blind support from his or her party and some foresight.

All this means that Mbeki can never serve as President of the country again — unless the Constitution is amended. This seems very unlikely, not only because the ANC would probably not agree to it, but also because the party does not have a two-thirds majority in Parliament (unlike in the days of Mbeki) and would probably not be able to persuade smaller parties to support such an amendment.

This does not mean, of course, that theoretically speaking, Mbeki could not be re-elected as President of the ANC. The ANC Constitution does not prohibit this. Neither does the Constitution require the President of the country also to be the leader of the majority party in Parliament (a situation that seems to differ from that of the Leader of the Opposition).

Of course, where the President of the majority party does not serve as President of the country (even when he or she is entitled to do so), the authority of the President and his or her executive may well be fatally compromised and the constitutional system may well take severe strain. In such a situation, the danger is that very little real power will be exercised within the formal constitutional structures like the Presidency and the executive. As we all know after the firing of Mbeki, it is the President of the majority party and the other leaders of the majority party who decide who serves as President, then instructs the members of the National Assembly to elect or fire whomever is necessary to give effect to this decision.

This situation will aggravate a problem that is inherent in our constitutional design. Although the President is supposedly accountable to Parliament and is elected and can be fired by the Assembly, in reality the President is accountable only to his or her political party and it’s leadership, who can decide who serves in Parliament and can also fire the members of their party as members of Parliament if they refuse to follow instructions from the party leadership. Where a President is not the leader of his or her party, the party will almost certainly try to remote-control the President and this might well lead to a further conflation of the ruling party, constitutional institutions like the Presidency, and the state.

This is also why I am no great fan of the current DA arrangement where its leader serves as the Premier of a province and a member of the Assembly is elected by the party to serve as Leader of the Opposition. Section 57(2)(d) of the Constitution states that the rules of the National Assembly must provide for “the recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition”.

Helen Zille is the “leader of the largest opposition party in the Assembly”, yet Lindiwe Mazibuko serves as Leader of the Opposition. There are two problems with this. First, it is unclear to what extent Zille controls the Leader of the Opposition (and to what extent she did so with the two previous DA “leaders” who had served as Leader of the Opposition in Parliament). Second, it is far from clear that somebody who is not the leader of the largest opposition party in parliament can serve as Leader of the Opposition at all.

Section 57(2)(d) of the Constitution can be read as prohibiting anyone other than the actual leader of the largest political party in the Assembly serving in the role Mazibuko is serving in. Mazibuko might therefore very well not officially and lawfully be Leader of the Opposition at all as that title and role might well be reserved by the Constitution for the actual leader of the DA – Helen Zille.

In any event, these issues once again remind us that our Constitution has failed to regulate the relationship between political parties and their elected representatives in the legislature and the executives (at both national and provincial levels). This means that the power of the President or of Premiers vis-a-vis that of the leadership of the political parties they lead, will differ widely, depending on how tight a grip the President or a Premier has on his party. Where the President has no grip whatsoever — as seems the case with Jacob Zuma – the party leadership (in the case of the ANC that would often be Gwede Mantashe) will often act as the power behind the throne, but without having to worry about any of the checks and balances built into the constitutional system.

Today, in the judgment of Selebi v S, 5 judges of the Supreme Court of Appeal (SCA) confirmed that former Police Commissioner Jackie Selebi (the very Selebi who showed the NIE to Glen Agliotti after Agliotti had given him money) is guilty of corruption in terms of section  4(1)(a)(i)(bb) of the Prevention and Combating of Corrupt Activities Act  which states that:

Any public officer who . . . accepts . . . any gratification from any other person . . . in order to act, . . . in a manner that amounts to the . . . misuse or selling of information or material acquired in the course of the, exercise, carrying out or performance of any powers, duties or functions arising out of a constitutional, statutory, contractual or any other legal obligation; . . . is guilty of the offence of corrupt activities relating to public officers.

In the main judgment, Deputy President of the SCA (Mr Justice Khayelihle Kenneth Mthiyane) pointed out that leave to appeal was only granted to consider two issues. First, the court had to decide whether the High Court was correct when it found that the state has proven beyond reasonable doubt that Mr Selebi had received payment from Agliotti. Second, it had to consider the question whether the State has proven that Selebi has provided Agliotti with any favours as a result of money paid by him to Selebi.

All the judges agreed that the State had indeed done so.

It is clear that Mr Selebi’s legal strategy hinged on denying that he ever received any money or other favours from Agliotti. This was a high risk strategy because once the court found that money did change hands and favours were done, it inevitably led to the conclusion that Selebi had a corrupt intention when he received the money, This is so because Mr Selebi had admitted during his testimony that he believed Agliotti was a “hustler” and that if a “hustler” like Agliotti gave him anything he would immediately know that it was for an illegal purpose. He added that if Agliotti made any payment to him he would know that he intended to induce him to afford him some favours in one way or another.

This strategy might have worked if all the state had to rely on was the testimony of Mr Agliotti, who was found by the court not to be a credible witness. Unfortunately for Mr Selebi, the state provided ample corroborating evidence of payments made and benefits given by Mr Agliotti to Selebi and where it did the court found that there was sufficient evidence to find that payments were indeed made.

The corroborating evidence included that of Agliotti’s former girlfriend Dianne Muller who was found to have been an impressive witness. The “bizarre spending patterns” of Mr Selebi, which showed that for several months he hardly spent any of his salary, also added corroboration.

Most damning for Mr Selebi was perhaps the finding that he had shown a National Intelligence Estimate (NIE report) to Agliotti. The court found that Selebi shared this information with Agliotti to enable Agliotti and the Kebbles to take steps to protect themselves. Accordingly, the portion of the NIE document was shown to Agliotti for the benefit of Agliotti and the Kebbles. The fact that Selebi had admitted to showing a document to Agliotti provides, in itself, corroboration for Agliotti’s evidence that Selebi.

In a separate concurring judgment Suretta Snyders emphasised that the trial court, faced with the absence of reliable, detailed evidence from Agliotti, “exercised what can only be described as extreme caution and only convicted the appellant on the basis of a few payments for which clear corroboration existed” and continued:

Insofar as the general corroboration relied on by the trial court is concerned, I am of the view that the trial court, in applying the rules of caution and seeking corroboration, was benevolent to the appellant and preferred to refrain from convicting the appellant in relation to a specific payment when the faintest doubt was raised. Thus the appellant was not convicted in relation to four more cheques that reflected inscriptions that could be interpreted as references to the appellant.

Snyders, in concluding that the relationship between Agliotti and Selebi was neither a pure friendship or a professional one concluded that:

One does not expect the National Commissioner of Police to take his friend along on police business; to take his friend and informer along to the very meeting where the verification of the informer’s information is to take place; to meet his friend to shop together during office hours; to favour his friend by attending to minor complaints for which structures exist to be dealt with; and to divulge information regarding police operations to his friend’s friends. If the relationship was so close to have made these occurrences ordinary, one would have expected it to spill over to the families of the appellant and Agliotti, which did not happen.

How did the appellant explain this unusual relationship? It was repeatedly put to state witnesses on his behalf that he had an innocent friendship with Agliotti. I have already illustrated that to have been highly improbable, to the point of being unbelievable. During his own evidence, however, the appellant dramatically changed this version and described the relationship as one between informer and handler. This explanation is equally inherently improbable. Their relationship was a public one. Agliotti was previously, from the beginning of 2002 for a period of one year, registered as a police informer and had an official handler, not the appellant. He lost that status within a year and was deregistered as an informer. The appellant’s mendacity in this regard, dealt with extensively by the trial court, is yet another indication that the relationship between them was extraordinary, not one of friendship, nor one between informer and handler.

The appeal did not deal with constitutional issues dealing with allegations that the trial judge had to recuse himself and that conduct by the prosecutors had rendered the trial unfair as no leave to appeal the findings of the trial court on these matters were granted by the trial court or the SCA. This will make an appeal to the Constitutional Court more difficult (if not impossible) to sustain. In S v Boesak the Constitutional Court found that:

A challenge to a decision of the SCA on the basis only that it is wrong on the facts is not a constitutional matter. In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory. There is a need for finality in criminal matters. The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises. Disagreement with the SCA’s assessment of the facts is not sufficient to constitute a breach of the right to a fair trial. An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.

Unless the Constitutional Court is prepared to entertain the arguments of Mr Selebi’s lawyers that he did not have a fair trial — something explicitly rejected by the trial court and which the SCA refused even to entertain — this is the end of the road for Mr Selebi.

This case is remarkable in many ways. It has demonstrated that even the South African Police Commissioner was corruptible and dented trust in the police. Nevertheless, at the same time it is remarkable that the Police Commissioner was successfully prosecuted — something that would happen in very few countries in the world as it is notoriously difficult to investigate and prosecute members of the police leadership who usually have the resources to derail any such investigation. It would never have happened in the absence of the Scorpions, a relatively independent corruption fighting unit situated in the Prosecuting Authority.

It is also remarkable that the Police Commissioner will now spend time behind bars while the person who bribed him will not — despite the fact that he was not a truthful witness and never received indemnity from prosecution. There might be good reasons why the Scorpions went after Selebi and in effect let Agliotti off the hook (who was later unsuccessfully prosecuted for his alleged involvement in the Kebble murder while those who confessed to having committed the murder were granted indemnity). This would be that a crooked head cop subverts the law and undermines respect for the Rule of Law in a way that the actions of an ordinary gangster could never do. But it does leave a bad aftertaste that Selebi is going to jail while Agliotti is a free man.

Lastly, the case is remarkable because it once again reminds us of the mendacity of former President Thabo Mbeki and his strange behaviour around the Selebi matter. On 9 November 2006, then President Mbeki wrote a letter to Pieter Groenewald, in which he stated that:

Up to now nobody within the state structures has informed me that there are any investigations affecting National Commissioner Selebi that are being conducted by anybody, including the DSO, (the Scorpions). I am certain that if there was such an investigation, or such an investigation was contemplated, I would have been informed accordingly. In this regard. I must emphasise that if any of our law enforcement or intelligence agencies felt that they had information that justified such an investigation, I would encourage them to do their work without let or hindrance, in keeping with their legal mandate….I have the greatest confidence in National Commissioner Selebi. I am certain that whatever the rumour mill is saying about him, he will continue to do his critically important work with the same diligence, dedication and selflessness he has shown ever since we appointed him as National Commissioner of the SAPS.

As I noted before, it is not clear how this claim could have been true. As the Ginwala Enquiry Report found:

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

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

The SCA’s confirmation of the conviction of Selebi — based on some of the evidence provided to President Mbeki at the time, which he claimed never to have seen  — thus underlines once again that for some reason unknown to us the former President had not believed the information provided to him (unlike the High Court and the SCA who found that it proved Selebi’s guilt beyond reasonable doubt) and had then misled the public about receiving any such information. Why he did this, will probably remain the biggest mystery of this sad saga.

Most people who request access to information do not have the resources to approach a court to challenge this culture of secrecy which is deeply entrenched in our society (in both public and private institutions). When an individual or institution therefore approaches a court to challenge the denial of access to important information held by the state or a private body, the court should be careful not to bend over backwards to assist state officials in denying access to information, information which is the lifeblood of any democracy.

Unfortunately today a majority of judges of the Constitutional Court handed down a judgment in the case of President of the RSA and Others v Mail & Guardian Media Ltd, in which they came to the assistance of the Presidency who had utterly failed to make out a case for why a report prepared by two judges sent to Zimbabwe by then President Thabo Mbeki to look into that country’s troubled election should not be made public.

This was a close run affair with 5 judges (including an acting judge who might still one day be appointed to the highest court) overturning the High Court and Supreme Court of Appeal judgment, and 4 judges supporting a strong dissent. The majority judgment, authored by former Chief Justice Sandile Ngcobo (and concurred in by Froneman J, Mogoeng J, Mthiyane AJ and Yacoob J), makes all the right noises about the dangers of state secrecy by emphasising the importance of the right of access to information, stating that the importance of this right in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid.

It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.

The majority also correctly points out that PAIA places an evidentiary burden on the party denying access to information to demonstrate that its denial of the information is justified. The Presidency had argued that the denial was justified, first, because the report would reveal information supplied in confidence by or on behalf of another state or an international organisation. This explanation merely recounted the wording of section 41(1)(b)(i). Secondly, the Presidency argued that stated that the record contains an opinion, advice, report or recommendation obtained or prepared for the purpose of assisting to formulate a policy or take a decision in the exercise of a power or performance of a duty conferred or imposed by law. This likewise recounted the wording of section 44(1)(a).

The Presidency failed to produced any plausible evidence by those directly involved in the matter, namely the President (at the time, this was Thabo Mbeki), or the two judges (Justices Moseneke and Khampepe, who both recused themselves from hearing the case), all of which could have confirmed the bold (but unsubstantiated) assertions made by the Presidency about why they were justified in denying access to the report. As an afterthought, so it seems, the Presidency argued that it could not provide a more persuasive justification for its refusal, as section 25(3)(b) and section 77(5)(b) of PAIA provide that a person who refuses access must exclude from the reasons stated “any reference to the content of the record”.

In order to give the Presidency another bite at the cherry to justify that which it had failed to justify before the High Court, the Supreme Court of Appeal and the Constitutional Court, the majority relied on section 80 of PAIA which allows a court to call for additional evidence in the form of the document to which access was denied to have a secret “judicial peek” at that document itself. Section 80 allows the court to conduct a secret review of the document to determine whether the justification for the denial of access was valid or not.

The majority warned that courts should exercise their discretion to call for additional evidence in the form of the contested record only where there is “the potential for injustice as a result of the unique constraints placed upon the parties in access to information disputes”. This injustice may arise, said the court, “because either the requester or the holder of information is prevented by factors beyond its control from presenting the evidence necessary to make its case”.

Because the officials in the Presidency who made submission to the court were not directly involved in the commissioning or production of the report, the majority found that they were required to study the report itself and come to a conclusion about whether it should be made public. The state was therefore “hamstrung” from presenting further evidence in support of its claim to the exemptions. The majority therefore found that the High Court and the SCA should have demanded to have a “judicial peek” at the document to decide whether the refusal was justified in terms of the provisions of PAIA relied upon. The majority therefore referred the matter back to the High Court to do just that. This means the process will start afresh – if the Mail & Guardian has sufficient funds to fight the whole battle anew.

As I read the majority judgment, it assumed — without any credible evidence being presented by the Presidency to that effect — that the Presidency was unable to make a proper case for secrecy because its officials could not quote directly from the report. This did not wash with the minority.

The strongly worded minority judgment, authored by Justice Edwin Cameron (Jafta J, Nkabinde J and Van der Westhuizen J concurring), provides cogent arguments for why the Presidency had to hand over the report immediately. The minority argued that the Presidency had failed to justify its refusal of the record under PAIA, and further failed to provide a plausible basis for a plea that the statute made it impossible for it to provide adequate reasons for its refusal.

The Presidency’s information officer had made no reference in his reasons to the provisions of the statute that prohibit a decision-maker from making any reference to the content of the record when giving reasons for a refusal. Moreover, the pivotal submission by Frank Chikane contained no more than “bald assertions” — which did not constitute evidence at all. Chikane did not state why he claimed to have personal knowledge of the issue. Justice Cameron then proceeded to argue as follows:

As the Supreme Court of Appeal pointed out, one can gain personal knowledge of an event in three very different ways: by experiencing it directly; by receiving a report that it happened (which is hearsay); or by deducing from other signs that it took place. Mr Chikane does not tell us in which of these ways he acquired personal knowledge. This leaves a court unable to perform its most elementary function, which is to assess the quality, strength and reliability of his knowledge in determining whether the fact to which he deposes is true. The mere assertion that he has personal knowledge gives no help in that duty. It follows that his assertion is without value as evidence of the fact in issue. …

The Court rightly noted that the Presidency‘s case amounts to “little more than rote recitation of the relevant sections and bald assertions that the report falls within their terms”. The witnesses offered not reasons, but perfunctory conclusions. This, the Court said, provided a stark contrast with the culture of accountability and transparency that our constitutional era promised. Indeed, the Supreme Court of Appeal likened the approach in the affidavits of the Presidency‘s witnesses to that under apartheid, where government officials exercising wide powers were able simply to assert that they had fulfilled the requirements of the statute, without offering any evidential basis for this.

The minority further pointed out that it was inexplicable that neither the President at the time, or any of the judges involved provided evidence that would support the denial of access to the document.

Neither former President Motlanthe nor President Zuma could cast light on the judges‘ mission. President Mbeki could, but there was no affidavit from him. So the question is — why did President Mbeki not testify? Was he asked or not asked? If asked, did he refuse? Or if not asked, why?

Perhaps even more telling was the absence of evidence from the two judges. They, like former President Mbeki, are living and seemingly available. Why did they not testify? Were they asked? If not, why? A simple affidavit from any of them may have put a quick end to the issues.

The Presidency‘s hands were not tied. It could have obtained direct evidence from any one of the three people most intimately involved in the mission. It failed to do so. More even, it failed to explain why.

The minority also cautions against the use of section 80 of PAIA that would allow the court to have a secret “judicial peek” at the document. It should only be as a last resort that judges should demand to have a “judicial peek” at the document to which access is being denied, said the minority. Moreover this section “should not be used to help government make its case when it has failed to discharge the burden the statute rightly places on it”.

There are good reasons for a court to avoid reliance on section 80 to have a secret peek at the document being denied to come to a secret conclusion based on a secret process. Although it might be necessary to do so, the risks inherent in resorting to secret judicial examination are so grave that it should be avoided if at all possible. Quoting from the Supreme Court of Appeal judgment, Cameron pointed out the dangers of the majority’s approach:

Courts earn the trust of the public by conducting their business openly and with reasons for their decisions. I think a court should be hesitant to become a party to secrecy with its potential to dissipate that accumulated store of trust. There will no doubt be cases where a court might properly make use of those powers but they are no substitute for the public body laying a proper basis for its refusal.

Nor should the public ever fear that courts may assist in suppressing information to which the Constitution says they are entitled. To give secret judicial examination of disputed records a central place in deciding claims to exemption, instead of enforcing the burden government rightly bears to justify withholding information, is in my view a grave error.

The minority would therefore have ordered the immediate release of the document as the Presidency had utterly failed to justify it being kept secret.

The two judgments handed down today present starkly different attitudes towards secrecy and the role of the executive in keeping secrets. The majority bent over backwards to find ways of not ordering the immediate release of the report, despite the fact that the executive had utterly failed to make a plausible case for keeping the document secret. The minority looked at the evidence provided by the Presidency, determined that it had not provided any cogent reasons for keeping the report secret and would have ordered its release.

The first judgment can therefore be read as displaying a rather touching (or perhaps naive) trust in the inherent honesty and probity of the executive and its commitment to an open and democratic society based on openness, transparency and accountability. The minority looked at the facts and applied the law as it relates to the facts presented to the court. It took the law at face value and interpreted and applied it in a manner that would inhibit state officials from denying access to important documents and then justifying it by making bald and unsubstantiated assertions of their right to do so.

(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.

Today is World Aids Day. It’s a time to remember all the people in South Africa and elsewhere in the world who have died needlessly because of the greed of pharmaceutical companies, the ignorance, hatred, prejudice and fear of people and the wilful stubbornness and cold-hearted arrogance of politicians like former President Thabo Mbeki. It is a time to reflect on whether one is in a position to be tested and to go for voluntary counselling and testing if one is indeed in a position to do so.

Earlier this year as I re-read the Constitutional Court judgment in Hoffmann v South African Airways which was handed down in 2000 by the present Chief Justice Sandile Ngcobo, it struck me that at the time when then President Thabo Mbeki was questioning the link between HIV and AIDS and the efficacy of anti-retroviral (ARV) drugs to treat HIV, our Constitutional Court definitively came out on the right side of the argument. While the President was tilting at windmills, the Constitutional Court made a definitive finding that should have put a stop to the President’s questioning of the science of HIV and AIDS. Unfortunately it never did.

Legally at least, President Mbeki’s wild goose chase was irrelevant. Unfortunately for hundreds of thousands of South Africans who died of AIDS related illnesses during this time, it was not. Let me quote three passages from the judgment without further comment. It speaks for itself.

First extract:

[T]his case tells us the following about HIV/AIDS: it is a progressive disease of the immune system that is caused by the Human Immunodeficiency Virus, or HIV. HIV is a human retrovirus that affects essential white blood cells, called CD4+ lymphocytes. These cells play an essential part in the proper functioning of the human immune system. When all the interdependent parts of the immune system are functioning properly, a human being is able to fight off a variety of viruses and bacteria that are commonly present in our daily environment. When the body’s immune system becomes suppressed or debilitated, these organisms are able to flourish unimpeded. Professor Schoub identifies four stages in the progression of untreated HIV infection:

(a) Acute stage — this stage begins shortly after infection. During this stage the infected individual experiences flu-like symptoms which last for some weeks. The immune system during this stage is depressed. However, this is a temporary phase and the immune system will revert to normal activity once the individual recovers clinically. This is called the window period. During this window period, individuals may test negative for HIV when in fact they are already infected with the virus.
(b) Asymptomatic immunocompetent stage — this follows the acute stage. During this stage the individual functions completely normally, and is unaware of any symptoms of the infection. The infection is clinically silent and the immune system is not yet materially affected.
(c) Asymptomatic immunosuppressed stage — this occurs when there is a progressive increase in the amount of virus in the body which has materially eroded the immune system. At this stage the body is unable to replenish the vast number of CD4+ lymphocytes that are destroyed by the actively replicating virus. The beginning of this stage is marked by a drop in the CD4+ count to below 500 cells per microlitre of blood. However, it is only when the count drops below 350 cells per microlitre of blood that an individual cannot be effectively vaccinated against yellow fever. Below 300 cells per microlitre of blood, the individual becomes vulnerable to secondary infections and needs to take prophylactic antibiotics and anti-microbials. Although the individual’s immune system is now significantly depressed, the individual may still be completely free of symptoms and be unaware of the progress of the disease in the body.
(d) AIDS (Acquired Immune Deficiency Syndrome) stage — this is the end stage of the gradual deterioration of the immune system. The immune system is so profoundly depleted that the individual becomes prone to opportunistic infections that may prove fatal because of the inability of the body to fight them.

Second extract:

The natural progression of HIV has been dramatically altered in consequence of recent advances in the available medication. There are now combinations of drugs that are capable of completely suppressing the replication of the virus within an HIV+ individual. This combination of drugs has been described as Highly Active Antiretroviral Therapy…. They are available in South Africa and are increasingly accessible. With successful [ARV] treatment, the individual’s immune system recovers, together with a very marked improvement in the CD4+ lymphocyte count. A significant improvement in survival rates and life expectancy results.

Third extract:

Prejudice can never justify unfair discrimination. This country has recently emerged from institutionalised prejudice. Our law reports are replete with cases in which prejudice was taken into consideration in denying the rights that we now take for granted. Our constitutional democracy has ushered in a new era — it is an era characterised by respect for human dignity for all human beings. In this era, prejudice and stereotyping have no place. Indeed, if as a nation we are to achieve the goal of equality that we have fashioned in our Constitution we must never tolerate prejudice, either directly or indirectly. SAA, as a state organ that has a constitutional duty to uphold the Constitution, may not avoid its constitutional duty by bowing to prejudice and stereotyping.

People who are living with HIV must be treated with compassion and understanding. We must show ubuntu towards them. They must not be condemned to “economic death” by the denial of equal opportunity in employment. This is particularly true in our country, where the incidence of HIV infection is said to be disturbingly high. In regard to the ability of people with HIV to perform employment duties, and in particular the work of a cabin attendant, the minute records that: With the advent of [ARV] treatment, individuals are capable of living normal lives and they can perform any employment tasks for which they are otherwise qualified.

For those of us living with HIV or are otherwise affected by HIV, these words can only make us proud of our highest court. No, let me rephrase that: I would say that every single South African — even those who believe they are HIV negative or those that believe they do not know anyone who is HIV positive — should be proud of our court for these sane findings based on scientific evidence and the ringing words that endorses respect for all people, regardless of their HIV status.

They warned that he would be required to serve two masters at the same time. Although both masters were members of an alliance, these masters did not always take the same position on a particular issue. Nzimande would then be forced either to defy the cabinet in breach of the Constitution when, as its leader, he would be required to put forward the official SACP position, or he would be forced to abide by cabinet decisions and thus would become incapable of diligently performing his function as leader of the SACP.

As I pointed out earlier this week, South Africa has adopted a system of political party government in which strict party discipline is enforced in the legislature and individual and collective cabinet responsibility for the executive is mandated by sections 92 and 96 of the Constitution. 

This means that ordinary MPs may debate an issue vigorously within the ANC until the caucus has made a decision on it, after which they were obliged to toe the party line or face the consequences (the most severe of which would be to be redeployed out of a job, as happened with Andrew Feinstein when he refused to follow instructions from the ANC - and especially Essop Pahad a.k.a Essops Fables – to stop his vigorous pursuit of arms deal corruption as a member of SCOPA). 

If ANC MP’s in Parliament also happened to be SACP leaders or COSATU leaders they would find themselves in a difficult position as they would be required to vote in favour of measures which their parties did not support. Other MP’s would also face such difficulties – as was the case with the adoption of the Termination of Pregnancy Act and the Civil Union Act.

Similarly, a cabinet minister could forcefully argue his or her position inside and outside cabinet until the cabinet had taken a position on that issue, after which the cabinet minister had to abide by that decision or had to resign. What the cabinet minister cannot do is stay in the cabinet but criticise a decision of that cabinet in his or her capacity as leader of Cosatu or the SACP because this would undermine cohesive government and collective cabinet responsibility.

It also undertmines the authority of the President, who is the  leader of the cabinet. In some jurisdictions the Prime Minister or the President fires Ministers who show too much dissent – often when the President or the Prime Minister is insecure and paranoid about his or her future or has a vindictive streak beyond that which politicians are known for.

This suggests that those in the SACP who expresssed disquiet with Nzimande’s duel role might have had a point: being the leader of the SACP or COSATU is probably incompatible with membership of the Cabinet or the National Assembly. Blade Nzimande sees things differently, of course. If all cabinet Ministers followed his example the cabinet would become even more dysfunctional and cabinet government would run the risk of breaking down completely, in which case service delivery would suffer a further blow. Policy would be made and amended on the trot (something former cabinet Minister Kader Asmal warned against earlier this year) and the system of individual and collective accountability of cabinet ministers provided for in the Constitution would break down.

Are there ways to deal with this and to save Minister Nzimande from having to choose which master he is serving? Could he hold on to his R1.1 million BMW and the perks associated with being a Minister (including occasional two week stays at the Mount Nelson Hotel) while also holding on to his job as general secretary of the SACP?

Murray and Stacey, in their Chapter in Constitutional Law of South Africa, suggest a few options. One would be for a Minister to use the “unattributable leak”. A Minister could leak his opposition to a specific cabinet decision to the media on condition that he or she not be named. Cabinet Ministers in the United Kingdom are masters of this ploy. It allows one to have one’s views known to those sections of the public whose support one wishes to retain (always a good thing when one has to stand for a leadership position), without officially breaking the rules of collective cabinet responsibility. Given the fact that such unattributable leaks are one of the reasons advanced by Nzimande and others for the establishment of a Media Appeals Tribunal, Minister Nzimande might not find this option appealing.

Another option would be to release carefully crafted statements that hint at dissent without actually defying the President and cabinet colleagues. Those who support Nzimande’s statement on behalf of the SACP about the strike argue that this is exactly what he did. I am far from convinced that they are correct, but judge for yourself. According to its spokesperson, Themba Maseko, cabinet had agreed as follows on the strike:

Cabinet is disappointed with the public sector unions’ rejection of the state’s offer of a 7% annual increase and the R700.00 a month housing allowance for public servants. The offer is already way above the inflation rate of 4.5 %. The state’s final offer represented a move from the original offer of 5.2 % and a R500.00 a month housing allowance. This is a clear demonstration that Government was negotiating in good faith in an attempt to meet the demands of our employees.  While Government fully understands and appreciates the plight of all the public servants regarding low wages, it has to be mindful of its responsibilities to all South Africans as the final offer already places a huge burden on the fiscus. We had to make a choice between increasing the salary bill to unaffordable levels by meeting the union demands and cutting other urgently needed services.It’s a choice between improving the wages of state employees and continuing to address the service delivery needs of poor communities and the unemployed.

Nzimande’s statement on behalf of the SACP reads partly as follows:

The CC calls on government and the unions to ensure that there is a very speedy resolution to the strike. It is about to enter its third week now and the longer it is prolonged the more everyone suffers and the danger of unbridgeable positions becoming entrenched increases. The SACP once more reiterates its conviction that the demands of the public service workers are legitimate and we support them in their struggle for just remuneration. In particular, we note that the wage gap in the public sector between the highest paid echelons and the lowest is 91 to 1. Although the gap in the private sector is even wider, we cannot deny that the public sector wage gap is shameful, and every effort must be made to progressively close this unacceptable gap. In this regard, the CC calls on government to set an example by ensuring that there is a collective moratorium on salary increases in the upper echelons of government.

I guess if one parses words one could argue that the two underlined sections are not in direct opposition to one another, but it would take some nifty verbal gymnastics and would stretch the meaning of words a bit further than any ordinary person would be able to do – at least while keeping a straight face. Can one at the same time be disappointed with the actions of strikers who rejected an offer of government and decided to strike and support their strike? I guess its a matter of interpretation (as is almost everything else in life) but my head feels like bursting just trying to reconcile those two statements.

And what about the poor ordinary MP’s who are far more vulnerable as they are not in leadership positions and have not been directly elected so can lose their seats in parliament at the whim of the leadership? What must they do when their party takes a position with which they vehemently disagrees, but which they cannot defy by voting against it for fear of losing their seats in Parliament?

One option would be to take a leaf out of the book of Schabir Shaik and to develop a serious illness on the day that a vote is to take place. But this will not signal to one’s constituents that one really did not like what the party did. Another would be to leak news of one’s opposition to a specific decision to the media on condition that one’s name is not mentioned and then to vote for the bloody measure (or against it – if that is what one’s party had decreed) in any case. Political party leaders and whips hate this kind of thing, but it does happen all the time. Andrew Feinstein did it in protest against President Thabo Mbeki’s speech to the caucus in which he argued that HIV and Aids was part of a CIA plot. It builds some flexibility into the system while retaining a semblance of discipline.

Where a political party leader is at the top of his or her game and wields power confidently or, in some cases, ruthlessly, there is less of this kind of ill discipline. With the exception of Pregs Govender and Andrew Feinstein, for example, few ANC MP’s ever dared to go against the party line once Thabo Mbeki had spoken and had indicated what the official line was going to be (sometime after vigorous “debate”). Of course, because of this in the end the seething resentment against King Thabo built up to such a degree that he was thrown out of office at Polokwane.

The fact that Ministers are leaking stuff left right and centre, that Blade Nzimande issues statements that seem to contradict the official cabinet position and that ordinary ANC MP’s are gossiping and leaking to the media like over-excited school boys and girls, suggests that President Jacob Zuma does not nearly have the same stranglehold on his Parliamentary party as Thabo Mbeki did.

But ironically, it might save Zuma’s bacon – at least for now – because all the factions in the party feel that they have a chance to have their side of the story heard and even to have their view prevail because the King is so weak and not nearly as ruthless – at least not on the surface – as that other guy whats-is-name who used to strike terror into the hearts of MPs and cabinet ministers to such a degree that they were all too scared even to admit to journalists that they believed that HIV was a virus that caused Aids.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the Marx Brothers might have put it, ‘this man may look like a corrupt idiot and act like a corrupt idiot, but don’t let that deceive you – he is a corrupt idiot.’ – Slavoj Žižek

On 30 May 2003 then President Thabo Mbeki published one of his politically and analytically most brilliant internet letters. The missive, which became one of his most famous, attempted to challenge the widespread perception that had taken hold (and remains to this day) that the government arms deal had been riddled with corruption.

The letter laid bare some of the deeply problematic ideological assumptions underlying the discourse on corruption in post apartheid South Africa. It then used this insight – which was not only spot on, but also tapped into a widespread resentment amongst members of the newly emerging post-apartheid elite – to defend what seemed to be indefensible.

(This was a tactic often used by Mbeki in his letters: correctly expose and analyze widespread racist or Afro-pessimistic assumptions, then use the insight to deny the existence of obvious problems or to discredit the valid criticism of progressive voices in our society. He used the same tactic against the so-called “ultra left” in Cosatu and the SACP and against those who pointed out the folly of his HIV stance.)

In the letter Mbeki wrote (and I am quoting at length):

In the Biblical Gospel according to St Matthew, it is said that Jesus Christ saw Simon Peter and his brother Andrew fishing in the Sea of Galilee. And He said to them: “Follow Me, and I will make you fishers of men.” Perhaps taking a cue from this, some in our country have appointed themselves as “fishers of corrupt men”. Our governance system is the sea in which they have chosen to exercise their craft. From everything they say, it is clear that they know it as a matter of fact that they are bound to return from their fishing expeditions with huge catches of corrupt men (and women)….

[W]e should not, and will not abandon the offensive to defeat the insulting campaigns further to entrench a stereotype that has, for centuries, sought to portray Africans as a people that is corrupt, given to telling lies, prone to theft and self-enrichment by immoral means, a people that is otherwise contemptible in the eyes of the “civilised”. We must expect that, as usual, our opponents will accuse us of “playing the race card”, to stop us confronting the challenge of racism.

The fishers of corrupt men are determined to prove everything in the anti-African stereotype. They rely on their capacity to produce long shadows and innumerable allegations around the effort of our government to supply the South African National Defence Force with the means to discharge its constitutional and continental obligations. They are confident that these long shadows and allegations without number will engulf and suffocate the forces that fought for and lead our process of democratisation, reconstruction and development. However, what our country needs is substance and not shadows, facts instead of allegations, and the eradication of racism. The struggle continues.

Re-reading this letter, it seems almost inevitable that Mbeki would have attempted at first to protect  former Police Commissioner Jackie Selebi. It also explains (better than anything anyone else may have written) why he refused to believe the evidence of Selebi’s corruption provided to him by the Prosecuting Authority and even continued to claim that nobody had provided him with any information that Selebi did anything wrong – even after Vusi Pikolu had briefed him on ten different occasions on the evidence against Selebi.

For Mbeki, his (often perceptive and accurate) ideological insights often trumped the proven facts. His tragedy (if you are sympathetic to the former President) or his evil genius (if you are not) was that these general ideological insights were often brilliant and perceptive, but blinded him to the specific facts and the valid criticism of individuals and about particular problems facing the government and the country and its people.

Which brings me to the set of questions I want to try and address in this post: why did an obviously brilliant, courageous and seemingly deeply principled struggle hero like Jackie Selebi became corrupt? Why are we confronted almost every day by news of crooked cops, Home Affairs officials and tenderpreneurs? Why does it sometime feel as if we are being engulfed in a tidal wave (or is it a Tsunami) of sleaze and corruption in South Africa?

The easy answer would be to blame everything on the racist stereotypes that Mbeki rightly warned against and to deny the very facts before our eyes. But this approach would not help us to understand the root causes of the problem and neither would it help to eradicate them. Although the Afro-pessimistic master narrative which Mbeki warned us against may well have helped to exaggerate the perception of corruption in our society, it cannot explain away the problem, which is very real and very dangerous for the long term well-being of our country.

For the same reason we should reject with contempt the racist and offensive claim that there is something in the DNA of the ANC and the government it leads that predisposes it and its members to corruption.

I would like to suggest that the problem can at least partly be attributed to the nature of our transition to democracy. South Africa did not experience a true revolution, but a managed transition. The state remained in tact and the private sector was largely left untouched. During the transition period the crony capitalists and the opportunists, who had exploited the conditions created by apartheid to make vast amounts of money, went to work to capture the new elite in order to protect their own financial interests.

Thus some of the big mining houses and other big business institutions who had resolutely supported apartheid, jumped ship and went to work to woo the members of the incoming government in order to protect their profits and their vested interests. They donated money to the ANC, forged close personal ties with some ANC leaders by wining and dining them and by providing them with all kinds of material “assistance”. They claimed they were doing this out of altruism or out of a deep sense of shock about the horrors of apartheid which – so they laughably claimed – they had only belatedly become aware of.

In essence, what large sections of the big business community did, was to offer legal bribes to the ANC as a movement as well as to individual ANC members to ensure that their own financial interests would be secured. They would offer fantastic riches to a few lucky well-connected individuals through BEE deals and directorships with the understanding that there would not be any fundamental transformation of the economic system in South Africa. Workers would still work and die for a pittance, while bosses would be allowed to continue to draw huge salaries and bonuses and subvent profits to London and New York.

Was it then not all too human and understandable that some (but not all) members of the new elite – who had not benefited from these legalized bribes – began to feel hard done by and tried to do something about it? Thus the mutually beneficial relationship between crony capitalism and some members of the new elite became firmly enrenched. In the feeding frenzy that followed, the lines between the legalized bribes paid by the apartheid capitalists and the criminal bribes paid by people like Schabir Shaik and Glen Agliotti became somewhat blurred.

And as more and more people seem to get fabulously rich (perhaps not as rich as those who exploited the apartheid system) and the culture of accumulation and consumption firmly took hold, it was perhaps inevitable that somebody like poor Jackie Selebi would begin to think that there was not really anything wrong with a gangster buying your very own child a nice pair of shoes. Ironically, it is exactly against this new kind of colonization that Mbeki himself warned in his Nelson Mandela Lecture when he said:

Thus, everyday, and during every hour of our time beyond sleep, the demons embedded in our society, that stalk us at every minute, seem always to beckon each one of us towards a realizable dream and nightmare. With every passing second, they advise, with rhythmic and hypnotic regularity – get rich! get rich! get rich! And thus has it come about that many of us accept that our common natural instinct to escape from poverty is but the other side of the same coin on whose reverse side are written the words – at all costs, get rich!

Is it too late to turn around this ship? Well, extraordinary political and moral leadership is required to address the capturing of our hearts and minds by the crony capitalists. We have the perfect Constitution and the perfect laws to fight the good fight and to stop the rot, but without the political leadership there will be no success. That is why the fight raging currently inside the ANC between the tenderpreneurs and those who believe in the creation of a more fair and just society is pivotal for the long-term well-being of our society.

Sadly, because he is himself compromised and implicated in the culture of greed through his association with the fraudster Schabir Shaik, President Jacob Zuma is probably not the best leader to lead the fight. Time for a change in ANC leadership perhaps?

Writing to then leader of the opposition, Tony Leon, Mbeki said the following in 2000:

In your letter to me of June 19, you make the extraordinary statement that AZT boosts the immune system. Not even the manufacturer of this drug makes this profoundly unscientific claim. The reality is the precise opposite of what you say, this being that AZT is immuno-suppressive. Contrary to the claims you make in promotion of AZT, all responsible medical authorities repeatedly issue serious warnings about the toxicity of antiretroviral drugs, which include AZT.

On 28 October 1999, Mbeki told the members of the National Council of Provinces:

Two matters in this regard [the demand to make AZT available in the public health service] have been brought to our attention. One of these is that there are legal cases pending in this country, the United Kingdom and the United States against AZT on the basis that this drug is harmful to health. [This claim was untrue.] There also exists a large volume of scientific literature alleging that, among other things, the toxicity of this drug is such that it is in fact a danger to health. These are matters of great concern to the Government as it would be irresponsible for us not to heed the dire warnings which medical researchers have been making. I have therefore asked the Minister of Health, as a matter of urgency, to go into all these matters so that, to the extent that is possible, we ourselves, including our country’s medical authorities, are certain of where the truth lies.

And of course the later Minister of Health also had rather dangerous and bizarre views on the matter. Dr Tshabalala-Msimang, launching an anti-TB campaign on 15 March 2003 said the following:

In my heart I believe it is not right to hand them [AZT and other ARV drugs] out to my people.

The late Peter Mokaba, who died tragically under the influence of this denialism told The Star the following on 4 April 2002:

We have seen colonization, we have seen imperialism, we have seen apartheid … and all of them used against us as a people. [Africans have] won their liberation and now they are fighting another war and they are being psychologically terrorised once more because people want to sell [ARV drugs] and make profits. And there is no benefit in those products. The only thing that can really happen is that once you touch the antiretrovirals you can go one way.

This is the story behind the advert.

° What Would Mbeki say.