I see the newspapers report that Muzi Wilfred Mkhize, the advocate tipped to be South Africa’s new prosecutions boss – and who could ultimately decide the fate of presidential aspirant Jacob Zuma – was an active member of the ANC leader’s legal team when he was first charged with corruption. Moreover, in 2005 he had previously pleaded guilty to professional misconduct and had paid a R10 000 fine to the KwaZulu-Natal Society of Advocates because of his unethical behaviour during a disciplinary hearing he chaired. This amount was the maximum fine under the society’s rules.
I am sure these reports are just malicious speculations by dark forces in the unpatriotic media hell bent on discrediting Jacob Zuma and the ANC. Surely, the ANC would not appoint Adv Mkhize to such an important position at the pinnacle of the indpendent Prosecuting Authority? So, I will have to assume that these reports are not true. Viscious lies, they are (as Yoda would have said).
The Durban newspapers report that Mkhize’s ethical misconduct related to his chairing of an internal disciplinary inquiry at the Ubuhlebezwe (Ixopo) municipality, in which he found the chief financial officer guilty of misconduct and recommended his immediate dismissal.
It later emerged that prior to the hearing, he had provided the municipality with written legal opinion on the issue, recommending what charges should be laid and stating that “on those charges he will be found guilty and be dismissed”. Mkhize’s ruling was overturned on review before the Natal Provincial Division, and he was admonished and fined by the KwaZulu-Natal Society of Advocates.
Under our Constitution the President has the authority to appoint the National Director of Public Prosecutions (NDPP). This means the President can appoint someone he believes will share the government’s views on the fight against crime and on the prosecutions policies that must be agreed upon between the NDPP and the Minister of Justice.
At the same time the President cannot appoint a party hack who will obey orders from the executive or the legislature to prosecute or not to prosecute any individuals, because the Constitution requires the DNPP to act without fear, favour or prejudice.
The Constitutional Court in the First Certification Case made clear that these provisions mean that the NPA is an independent body and that its independence is implictly protected in the Constitution. (Sadly, this is a judgment that some of the ANC members of Parliament is not familiar with, so some of them have said there is confusion about the independence of the NPA – despite this clear statement from the highest court in our land.)
The National Prosecuting Authority Act must give effect to this constitutional independence and does so in many ways. One is by prescribing the qualifications that any person appointed by the President as NDPP must posess. Section 9 of the Act states:
9(1) Any person to be appointed as National Director, Deputy National Director must:
(a) possess legal qualifications that would entitle him or her to practise in all courts in the Republic; and
(b) be a fit and proper person, with due regard to his or her experience, conscientiousness and integrity, to be entrusted with the responsibilities of the office concerned.
These provisions have to be interpreted with reference to the constitutional guarantee of the independence of the NPA – as confirmed by the Constitutional Court. The requirements set out in article 9 of the NPA Act must therefore be interpreted – if they are reasonably capable of such a meaning – of complying with the requirements for an independent NPA. If they cannot be so interpreted, they are unconstitutional.
The Constitutional Court has said that in evaluating whether a judicial officer will exercise his or her powers impartially one will have to ask whether a reasonable, well-informed, person, armed with all the relevant facts, would have a reasonable apprehension that the relevant officer would potentially be biased in his or her decision making. Context is all important. Although different judicial officers will be evaluated differently – depending on what body they serve on and the powers they have – this test will apply to all of them with due regard to the different roles played by such officers.
I would argue the same kind of test will thus also apply to the head of the NPA – taking due regard that the NDPP must implement the prosecuting policy of the government and can therefore be someone that is broadly trusted by the President of the day to implement that policy.
But where informed and reasonable persons will have a reasonable apprehension that the person appointed as NDPP was appointed with an ulterior purpose, namely appointed not merely to implement the broad prosecution policies of the government, but to make decisions of a specific kind in a specific case that would benefit specific politicians – the leader of the same party that the President hails from say - the letter and spirit of the NPA Act and the Constitution would have been breached. The decision of the President to appoint such a person will then become reviewable because then the President would have acted ultra vires.
The Constitution and the NPA Act does not empower the President to undermine the independence of the NPA by appointing a person for an ulterior motive. Where reasonable, well-informed individuals will have a real apprehension that the DNPP was appointed for an unlterior purpose and that he or she would not act in an independent manner, the appointee will not be a fit and proper person as required by the NPA Act.
In the case of Mr Mkhize, the mere fact that he appeared for Mr. Zuma in one of his many cases will probably not trigger this apprehension of bias. Lawyers appear for many different accused all the time – it does not mean they are friends with or support the accused. In any case, as a good, ethically sound, lawyer Adv Mkhize will surely recuse himself when decisions regarding his previous clients are made by the NPA.
But one must look at all the facts to form an opinion whether a reasonable apprehension of bias can be found. Adv Mkhize has pleaded guilty to serious misconduct. He therefore has admitted that at least on one occassion he lacked the integrity and conscientiousness required for the job of NDPP.
Taken together, these two factors will make it very difficult for the President to show that he had not acted with an ulterior motive in appointing Adv Mkhize. This decision would then become challengable in court. Any reasonable person, faced with all these facts, would have a reasonable apprehension that Adv Mkhize may not always act without fear, favour or prejudice, but may well act to protect Mr Zuma from prosecution.
That is why I am sure these news reports are just scurrilous rumours spread by dark forces (Lord Sauron perhaps?) who want to discredit the ANC, President Kgalema Motlanthe, Jacob Zuma and Adv Mkhize.
Besides, Cosatu and the SACP has long argued that the NDPP should be an independent person, free from political interference by the executive, so their leaders will obviously strongly argue against the appointment of someone like Adv Mkhize. This is not because he is a bad person or because he will be biased – merely because many reasonable and informed people will have a very strong (and quite reasonable) fear that he will be biased. If there is indeed talk amongst the President’s advisors of appointing Adv Mkhize, I am sure those principled defenders of the NPA’s independence like Cosatu and the SACP will make a lot of noise to dissuade the President from appointing such a person.
No, I am sure President Motlanthe will appoint an independent-minded professional lawyer who will act in the best interest of the NPA at all times. Surely that is what the Constitution requires him to do. That is what Mr Zuma and his defenders have demanded all along and as principled people they will not change their minds merely to score a short term political advantage. Besides the President would never act in a way contrary to the letter and spirit of the Constitution, now would he.
LOL
“I am sure these reports are just malicious speculations by dark forces in the unpatriotic media hell bent on discrediting Jacob Zuma and the ANC.”
Perhaps they are just worried that he would not be conducting off-the-record briefings with them anymore or perhaps he may even fire those moles in the Scorpions that keeps on leaking sensitive details of investigations to them. God forbid that the mutually beneficial symbioses between the office of the NPA and the media should come to an end.
Or perhaps they are just worried that the director of the NPA would start abusing his powers against the “wrong” people, start persecuting the “business-friendly” section of the political spectrum ?
A brilliant expositon of what could become a very tricky situation if………………
…..if Pikoli takes this to the court. As he has been found to be fit and proper and DID not ABUSE power nor BREACHED secuirty to warrent for him being FIRED
Pierre thank you for dong an article on this.
Facts about Muzi Wilfred Mkhize
1) Orginally part of Zuma’s Legal team in the start of corruption case
2) A complaint was laid against him with the KwaZulu-Natal Society of Advocates in2005 related to a disciplinary hearing he chaired.
3) He was admonished and fined R10 000, the maximum fine under the society’s rules
on top of that he seems to think the job is much lower standerds than what he is used to, well excuse MR High and Mighty
All hope on Pikoli to fight a lonely battle against corruption and has threatend legal action against the president
Pikoli stands a good chance on winning his case, any court in any country will blantenly see that Pikoli’s firing is political motivated and with out reason.
It will have to be proved he has BREACHED security and the report does not mention that.
Most of his reasons for being fired are after thoughts and will not count
the appointment of Wilfred Mkhize is/ will be illegal becuase of him pleading guilty on misconduct
It would appear that Zuma is playing all cards appointing someone who has direct interaction with his corruption case to be throwen out.
The ANC gunning for the review of the NPA Act and to be more accountable to the Minister already braking the Constitutional Law.
The ANC Chair of Vusi Pikoli
Zuma will appear in the Pietermaritzburg High Court next Wednesday, when a date for his corruption trial will be set, this is the countries only hope of ending this matter
R10m well spend to watch the africa’s roman empire fall
Moreover, in 2005 he had previously pleaded guilty to professional misconduct and had paid a R10 000 fine to the KwaZulu-Natal Society of Advocates because of his unethical behaviour during a disciplinary hearing he chaired.
So technically he’s not even eligible for the NEC. Case closed. Next candidate, please!
I presume that a “wrongful” appointment would be actionable. Which court would have to be approached, and who would be entitled to make the approach?
Similarly, if the NDPP (whoever he may be at the time) were to decide “in the national interest” to drop charges against Mr Zuma, who would have standing to contest this in court?
I would really like to see a court hearing arguments on the “national interest” issue (like when Mr Selebi was NOT charged with crimen injuria).
It must be one of the funniest threads Pierre has posted in a long time. But some of the most precious bits come from newspaper report he quoted:
“University of Western Cape law professor Pierre de Vos said the Constitution required the NDPP to be someone who acted independently and was seen to be independent.
“There would be serious question marks over the independence of the National Prosecuting Authority (NPA) if the director was in the pocket of a politician or could be seen to be in the pocket of a politician.”"
“In the pocket” of a politician – LOL ! Just imagine the endless supply of improvised dirty jokes if we applied that to Bulelani and sweetheart Phumzile Mlambo Ngcuka.
Did Pierre ever have a problem with that one ?
One also seems to forget and I think the ANC needs to employ people who now the constitution and international law.
The NPA is monitured by the IPS which in turned the NPA is also accountable in respect the UN guidlines of Prosecution.
UNODC ROSAF has been involved with various anti-corruption initiatives in the Southern African region. Its programming has, within the framework of the CICP/UNICRI Global Programme against Corruption (GPAC), focussed on supporting the national anti-corruption programme to assist Governments in the region in efforts to prevent, detect and fight corruption and promote integrity, transparency, accountability and the rule of law within the country. The programme initiatives are intended to provide institution building and direct support to the Governments.
If the ANC is so blindly oblivious to the UN mandate of a independent NPA and start putting in puppets, they going to find themselfs in hot water very soon.
Becuase if the ANC is going to start to review the NPA Act and hand over more accountability the the Justice Minster in clear violation of the constituion and annual report by parliment needs to be submited to the UN. The UN is going to question why the NPA is not Independent anymore losing south africa more crediblity
Say these rumours are true…how very un-ANCish to appoint someone who is not fit and proper for a position;)
chris mcdaniel // Jan 29, 2009 at 11:24 am
‘…UN is going to question why the NPA is not Independent anymore losing south africa more crediblity…’
Chris, do you not think that objections by the UN will once again be written of as colonialists trying to have a say in how South Africa is run?
The long and the short of it is the best candidate for the job is Pikoli himself. And this candidate has shown himself to be able to quite easily detach his party political partisan from his responsbilities as the Independent head of the NPA.
I actually think that appointing Pikoli from the Department of Justice was great, because then there were no pending cases before the Courts that he had been instructed on. Picking an Advocate from the ranks who is not as similarly tainted as Mkhize will be hard, unless they came from within the NPA.
Mpho
I totaly agree with you, why dont they actually do that appoint some one from within the ranks of the NPA
Pikoli has proven himself hell he even got an internation award for it, there is a clear vandetta against him. This guy has got to be one of my new heros hands down
Mili // Jan 29, 2009 at 12:03 pm
“Chris, do you not think that objections by the UN will once again be written of as colonialists trying to have a say in how South Africa is run?”
Not necessarily if they are seen to act with equal enthusiasm and resolve against multinational companies and governments of the UK, Germany, France and the US. As many of us bloggers have noted bribery and corruption is a bilateral crime.
Mili um do you know that South africa is part of the UN and rules need to be followed if south africa wants to continualy enjoy its membership with the UN?
These very rules that are in the NPA Act come direct from the UN guidlines tough titties, they most be followed, and im sorry cant see how the UN can be viewed as colonialists? lol wtf
Mili another thing if africa will view UN as being colonialist ont he matter go have a look at what the AU has to say on the NPA
@Mpho:
I agree with you wholeheartedly. Pikoli has the Ginwala commission that clearly states he is fit for the job. If Jackie Selebi managed to get his contract renewed with criminal charges hanging over his head, national security is clearly not a good enough reason to fire someone who is fit and proper.
Bring back Vusi Pikoli!
How about we replace Mkhize with Harms on this thread and see if the same principles stick?
Realistically speaking Harms has never been found guilty where as Mkhize pleaded guitly
Realisticallyspeaking // Jan 29, 2009 at 1:10 pm
In fact Harms would be even a better appointment as Ngcuka as director of the NDP. He is after all a firm favorite with “the people”, nor can it be said that a “reasonable apprehension of bias can be found” and he has shown in the past that he can not recognize an ex CCB operative (perhaps cleverly disguised as a Scorpion informant) even when the latter is busy attaching electrodes to his genitals.
I wonder if it is in any way significant that he hails from KZN, Zuma’s back yard as it were? From what I have read, the learned Advocate is ethically tainted and unfit in the light of teh statutory requirements.
Pikoli is clearly setting up his case as the letter writing has already started. I can just see the paragraphs in his affidavit “Nothwithstanding being advised of the Applicant’s position in writing on XXX, the Respondent nonetheles proceeded to appoint a successor knowing full well that the applicants dismissal would be the subject of a court challenge.”
Given that the ANC does not have any other options for Zuma (under their control, at least), having ruled out a constitutional amendment iro not prosecuting a head of state, then I would say that this is the “legal solution” that Mr Niehaus has been going on about (except that the term “legal” is a synonym for “political” here).
In other words, the get-out-of-jail-card…
Mike thats spot on actually……….and let the ANC do this, the court will swing in favour of Pikoli. Then what?
I would like to see the ANC have a back up plan for pikoli when he goes to court.
This is were the ANC messed up, chairing an ad hoc commette dominated by the ANC. WHO have PUBLICALLY announced that they back up the firing of Pikoli
Pikoli can easily show that the committe was a farce and has every right to call all MP’s on that committe as witness’s and have them all red faced sitting in the dock for political interference
The opposition will take Pikolis side on this matter as they have all expressed their views on this window dressing bananza as the ANC has already decided Pikoli’s fate.
Then the court will have a look at the allegedly flauting security risk.
The legal eagles amongst us and PRO ZUMA supporters…….Where in the report does it say Pikoli Breached security? Hence this is the reason why Pikoli was fired because of National Security.
Where is the actual proof he breached protocal?
anyone?
and why did Zuma miss his appointment to make representation with the NPA….Christ the guy spent
Millions of rand taxpayers money demanding to make representation? then given the chance then doesnt bother with submission?
The only jail out card for Zuma would be to turn state witness and deliver the so called “DIRT” that he has on other senior politicians this will give him immunity if all of his tricks fail and for him to still become president.
This happens im afriad im getting my ticket and im back of to the states, cos your country is going to burn with a selfish back stabbing save your own ass leader. No thank you
Mike Atkins // Jan 29, 2009 at 1:44 pm
I think you should be careful not to start clinging on to some dark conspiracy theories, and always remember the president has the constitutional right to appoint a director to the NPA guided by his own infallible and politically neutered judgment.
Some interesting developments on the web folks – the ANC now has an election website at:
http://www.myanc.org
and isn’t Jacob Zuma just as quite as a baby ?
And for the Anti-ANC this site has been running some time now to show that when it comes to electioneering the Yanks have shown us you don’t need a policy you just need to focus on and attack the ruling party:
realanctoday.wordpress.com
“and isn’t Jacob Zuma just as quite as a baby ?”
oops – that should have been cute.
Ozoneblue, yes I have had a problem with that. See http://constitutionallyspeaking.co.za/?p=531.
Mike, decisions by the President can be reviewd in the High Court, but if it finds the President acted unconstitutionally this must be confirmed by the Constitutional Court. However the Constitutional Court has exclusive jurisdiction to decide whether the President has failed to fulfil a constitutional obligation. So one the one hand, one could argue only the CC can hear such a case as the appointment of a fit and proper person as NDPP is a constitutional obligation because the Constitution says the President appoints the NDPP and further requires that legislation should give effect to the provision that the NPA shoul act without fear favour or prejudice. Or (probably better view) is that this power of the President is exercised ito the NPA Act so a High Court can decide whether the President acted ultra vires (by appointing someone that is not fit and proper while the law requires him to do so), but that any decision will have to be confirmed by the CC. Given that factual issues might come into play and given the CC’s view that it is better not to run to them immediately and for High Courts first to sort out the factual issues, I would guess the CC would send a direct application for review back to the High Court.
Pierre De Vos // Jan 29, 2009 at 5:38 pm
Thanks for clarifying that Pierre – nice to see some even handedness.
On the button editorial in noseweek – free access:
http://www.noseweek.co.za/article.php?current_article=1922
While I’ve heard nothing to corroborate these reports in the media, the scary thing is that based on past experience with the ANC, it actually might happen – it’s entirely plausible that someone like the Advocate (be it him or not), with more than dubious credentials, is appointed to a post that the previous guy was found to be doing a pretty good job in. Anyone remember a guy named Jake White?
While there may be legal remedy available for Pikoli, which I sincerely hope he utilises to the full, these things take time – and all the while a critical facet of our democracy, the NPA, is left in limbo, with morale already crumbling. And leaving the NPA in limbo now, just after having had the Scorpions carved out of it, is probably as close to perfect as the ANC will get it, without appointing somebody like Julius Malema to be the NDPP.
Ozone – as far as I’m aware, there are ongoing investigations in Britain and France into the companies involved in the Arms Deal. Requests for co-operation from foreign investigative bodies were flatly refused by the South African government, naturally.
Peter // Jan 29, 2009 at 7:17 pm
Thanks Peter. That opinion piece substantiates quite emphatically my argument on another thread regarding the capricious and unregulated nature of BEE in the 90′s :
“In 1992 – yes, the arms dealers were then already closing in – Schabir Shaik and Thomson (“The French”) drafted a memorandum of understanding according to which all Thomson’s interests in South Africa were to be held and controlled through a new company called Nkobi Holdings, in which the Shaiks, the French and the ANC (or a faction of it) would be shareholders. Contemporaneous notes made by Shaik suggest that, even at that point, the plan was to have Zuma as a ghost or “occult” stakeholder, entitling him to a percentage of the profits.
When, however, soon thereafter, the French got warnings from people close to Nelson Mandela (such as silk-shirt/arms-trader Yussuf Surtee) that the Shaiks’ Nkobi Holdings was not a “suitable” partner, Thomson CSF bought a stake in South African arms company ADS, in preparation for its part of the arms deal – leaving Nkobi and the Shaiks out in the cold.”
So what gave “people close to Nelson Mandela” in this case the “tailor” the authority to decide who were and who were not “suitable partners” for BEE deals. Perhaps it was a free-for-all and the the Zulu boy who “surrounded himself with Indians” as Ngcuka put it was stepping on somebody else’s toes or jumping the queue?
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=vn20060604081649745C158226
ozoneblue – you may have something of an argument there, but I don’t think it is one that will hold legal water….
I believe, as Weltz puts it, his defence, to show that he was not aware of the criminal nature of his actions, will have to be based on insanity or mental retardation.
The Big Slipper // Jan 29, 2009 at 7:37 pm
“Requests for co-operation from foreign investigative bodies were flatly refused by the South African government, naturally.”
Oh really – I thought the NPA are/were supposed to act independently from government without any fear, favor or prejudice ? Or was it in fact the NPA that refused cooperation?
International requests for assistance must be dealt with by government in terms of approval, as far as my understanding goes. Diplomatic relations, and all that. Open to correction, but this is my understanding.
TBS & Ozoneblue International requests are dealt striclty with government. The relationship with the NPA and government is co-operation.
infact its our justice minister and Justice Director-General, Adv. Menzi Simelane that have blocked or ceased cooperation with germany and birtian under the mutual legal assistance agreement (MLA) the Arms Deals.