Selebi’s Zuma option
ETV news reports that lawyers for Jackie Selebi is to approach Menzi Simelane, National Director of Public Prosecutions (NDPP) in order to have his trial stopped. They report that Selebi will argue that there was a conspiracy against him and that the prosecution was tainted by prosecutorial misconduct.
Details are still sketchy, but the initial legal question is clearly whether Simelane has the power to stop the trial half way through the prosecution. Section 179(5)(d) of the Constitution allows the NDPP to drop charges against an accused, but only when this is allowed in terms of the prosecution policy agreed to between the NDPP and the Minister of Justice. I might be missing something, but section 179(5)(d) of the Constitution does not seem to allow the NDPP to stop a trial already in progress.
However, the prosecutor (not the NDPP) is empowered to stop the trial after a plea has already been entered, but only in very limited circumstances. The prosecution policy states as follows:
Criminal proceedings may sometimes be stopped after a plea has already been entered. This would normally only occur when it becomes clear during the course of the trial that it would be impossible for the State to prove its case or where other exceptional circumstances have arisen which make the continuation of the prosecution undesirable.
If a prosecution is stopped, an accused will be acquitted and may not be charged again on the same set of facts. A prosecutor may therefore not stop a prosecution, unless the Director of Public Prosecutions or his or her delegate has consented thereto. Such decisions should therefore be made with circumspection.
The prosecutor may therefore stop the case in “exceptional circumstances”. One imagines this is rather unlikely as prosecutors are usually prosecuting a case because they think it is winnable. A prosecutor is also unlikely to agree that there was prosecutorial misconduct in a case run by him or her and would – correctly, in my view – defer to the judge on whether there was any misconduct and if there was, whether it fundamentally affected the fairness of the trial.
However, section 179(5)(c) states that the NDPP “may intervene in the prosecution process when policy directives are not complied with”. If Simelane thus wants to stop the Selebi trail he will have to rely on this section and such a move will have to be based on evidence that the prosecuting policy was flouted. The relevant section of the prosecution policy states that:
prosecutors should present the facts of a case to a court fairly. They should disclose information favourable to the defence (even though it may be adverse to the prosecution case) and, where necessary, assist in putting the version of an un-represented accused before court.
A credible submission by Selebi’s lawyers will have to provide hard evidence that demonstrates prosecutorial misconduct. A fabrication of evidence by prosecutors will obviously constitute such misconduct. As the Supreme Court of Appeal has made clear evidence that a prosecution was brought for an ulterior purpose would not constitute such conduct as long as the prosecutor always had the intention to secure a conviction.
Even then, given the fact that the trial is already underway and given the question mark hanging over Simelane’s credibility and independence, it would be advisable for Simelane not to intervene in this case. If evidence of misconduct exist, the honest option would be to put this before the court and to argue that it would be impossible for Selebi to get a fair trial. It is always better in such cases for a court – and not for a tainted political appointee – to make a decision about the ability of Selebi to get a fair trial. That way the credibility of the criminal justice system would not be placed under undue stress.
If the ETV repot is correct, it would represent Simelane with his first real test. Will he act in the interest of justice with an eye towards securing the credibility of the NPA and the criminal justice system or will other factors persuade him to intervene in this matter? Only time will tell.
“Just trust me?” Maybe not….
Adv Menzi Simelane, who was recently “appointed” as National Director of Public Prosecutions (NDPP), has a rather eccentric view of democracy which can be summed up in one short phrase: “Just trust us.” This is not a view I share or, I would contend, that anyone who loves or supports democracy should share.
Last night I took part in a panel discussion with Simelane, former Chief Justice Arthur Chaskalson, and ID leader Patricia de Lille on whether the judiciary is capable of holding high ranking public officials to account. The discussion formed part of the UCT Constitution Week. Sadly it confirmed the grave doubts I have about Adv Simelane’s fitness to serve in the position of NDPP.
Simelane seemed to be quite an affable guy. When I told the story of how an apartheid Minister had complained about judges who, once appointed, thought they were there on merit and started thinking for themselves and expressed the hope that Adv Simelane would similarly now start thinking for himself, he even laughed. But he is nevertheless dangerously misguided.
Adv Simlene said that because we live in a highly politicized society (by which, I think, he meant a society divided along racial lines) the notion of justice itself was contested. Although he did not expressly use racial terms, it was clear that he was arguing that what was fair and just for a black person would not be fair and just for a white person and visa versa. For the system to work better we needed to be less distrustful, he said. We thus needed to be more trusting of the system and, by implication, more trusting of public officials and politicians (like Simelane himself).
I agree with Simelane that we live in a highly divided society with high levels of distrust. I can also concede that high levels of distrust are at least partly caused by racial divisions and by racially influenced assumptions about insincerity, dishonesty and partisanship of politicians and public officials. There is a need for everyone to reflect critically on their own (often unexamined or unidentified) assumptions about others who do not share their race, class and gender.
Yet, when a politician like Simelane (for he is a politician) says that the problems in our criminal justice system is based on a lack of trust and calls on us to be more trusting of politicians and other public officials, it make my hair stand on end. Clearly on a personal level South Africans should try and build bridges across race, glass and gender lines and should not always assume the worst about someone else merely because that person happens to be of a different race.
However, it would be foolhardy and dangerous for citizens blindly to trust our politicians and public officials (no matter what their race), as Simelane wants us to. When they ask us to trust them, they are really saying that we should not ask questions, we should not think for ourselves, we should not scrutinize their actions. Rather we should believe everything they say and support everything they do because, like mommy and daddy, they know best. We should also trust that, like mommy and daddy, they have only our best interests at heart.
This view is profoundly paternalistic, anti-democraticand dangerous. It aims to deprive ordinary citizens of any agency, and hence aims to rob them of their dignity and their ability meaningfully to take part in our democracy. A claim that the powerful politicians, public officials and business leaders know what is best for all of us and should thus be left alone to get on with the job, is a claim against participatory democracy. “Just trust us,” they say, “and we will look after you. Do not worry about the rest.”
Fat chance.
It is exactly because we have learnt the hard way that it would be extremely foolish to place our blind trust in those who exercise power over us, that we have devised various forms of constitutional democracy and have created elaborate regulatory states in order to try and check the potential abuse of power of those who claim to have only our best interest at heart. If we blindly trust the powerful we give them absolute power over us and as Lord Acton said: “Power corrupts, and absolute power corrupts absolutely.”
In a modern open and democratic society – like the one established by our Constitution – we build in mechanisms to hold the powerful (the politicians, the public officials, the business leaders) to account exactly because we know we would be rather stupid to blindly trust that they would always do the right thing.
I for one, would not trust Adv Simelane. This is not because he is black, nor because he is an ANC politician. (If he was a white DA member I would have felt exactly the same.) It is because he has demonstrated that he has only the interests of a small band of politicians at heart. As the Ginwala report shows, he lied under oath to try and mislead the Inquiry and also drafted a letter containing an illegal instruction to the then NDPP – all because he was trying to protect his boss and/or because he was instructed to do so by his boss.
Trust is earned in a democracy. If Simelane grows into the role of NDPP, if he starts believing he is there on merit and begins to think for himself, if he refuses to be bullied by the Minister of Justice or the President, if he demonstrates that he is willing always to act without fear, favor or prejudice in prosecuting even the most well connected politician, then and only then will I begin to trust him.
It is our duty and our right as citizens to distrust politicians like Simelane until they prove us wrong. And even then we should always keep a beady eye on them to make sure they continue to serve us.
What now for Shaik and De Kock?
The Constitutional Court today found that the President had erred and had acted irrationally by not affording the victims of “politically motivated crimes” a hearing before making a decision on whether to pardon the perpetrators of those crimes. In Albutt and Others vs President of the RSA and Others Chief Justice Ngcobo, writing for a unanimous court, upheld the decision of the High Court. The High Court interdicted the President from pardoning these prisoners before affording the victims a hearing about the matter.
In this case the stated purpose of pardoning the prisoners for their “political crimes” was nation-building and national reconciliation. The court thus held that the participation of victims was crucial for the achievement of these objectives. It could therefore not be suggested that the exclusion of the victims from the special dispensation process was rationally related to the achievement of the objectives of the special dispensation process.
The court made it clear that the judgment only applied to the group of prisoners who were going to be pardoned as part of a special process to deal with the “unfinished business” of the Truth and Reconciliation Commission. What distinguished this category of prisoners from others not before the court was:
that the crimes in respect of which pardons are sought are alleged to have been committed with a political motive; the objective of these pardons is to promote national unity and reconciliation; and the crimes concerned were committed in a particular historical context. Different considerations may very well apply to other categories of applications for pardon. This judgment does not therefore decide the question whether victims of other categories of applications for pardon are entitled to be heard. That question is left open.
The judgment therefore makes it clear that it would not necessarily require the President to afford the victims of Eugene de Kock or Schabir Shaik a hearing before pardoning them. However, it confirms that the President does not have an unfettered discretion to pardon prisoners. The President is bound by the principle of legality, which is part of the rule of law, when exercising his power to pardon prisoners.
This means two things. First, the exercise of the power to grant pardons must be rationally related to the purpose sought to be achieved by the exercise of that power. In other words, there must be a rational link between the purpose that the President wishes to achieve by granting a specific pardon and the actual granting of that pardon. A President is therefore obliged to identify the purpose he wishes to achieve by granting a pardon and to make a case for why there is a rational relationship between that purpose and the granting of said pardon.
Thus, if the President were to pardon Shaik and De Kock, he will have to say why he did so. A court will then be allowed to determine whether the identified purpose is rationally related to the granting of the pardon.
If Shaik were to be pardoned for the purpose of advancing national reconciliation, say, it would be rather difficult to show that there was a rational connection between this pardon and the achievement of national reconciliation because Shaik was not convicted of a “political” crime. Shaik is an ordinary criminal who happened to have bribed the President, so pardoning him could not be said to have anything to do with the achievement of national reconciliation. Instead it would have everything to do with the granting of a political favour to a friend. As the Court explains:
The executive has a wide discretion in selecting the means to achieve its constitutionally permissible objectives. Courts may not interfere with the means selected simply because they do not like them, or because there are other more appropriate means that could have been selected. But, where the decision is challenged on the grounds of rationality, courts are obliged to examine the means selected to determine whether they are rationally related to the objective sought to be achieved.
What must be stressed is that the purpose of the enquiry is to determine not whether there are other means that could have been used, but whether the means selected are rationally related to the objective sought to be achieved. And if objectively speaking they are not, they fall short of the standard demanded by the Constitution.
This brings us to the second requirement for a valid granting of a pardon. The pardon must be granted for a constitutionally valid purpose. If the pardon was granted merely to do a friend a favour, or to prevent that friend from spilling the beans about your own involvement in criminality, or because that friend happened to have paid you bribes worth millions, it would not constitute a “constitutionally valid” purpose for pardoning the friend.
The judgment underlines the fact that the President does have a relatively wide – but not unfettered – discretion to pardon prisoners. But it also reminds us that the rule of law requires the President to act rationally when doing so. The President thus has a constitutional duty to state clearly what the purpose of the granting of the pardon might be. That purpose had to be a legitimate purpose. It could not have the purpose merely to advance the personal interests of the President himself or the party he happens to lead.
If De Kock and Shaik are pardoned, the presidency will therefore have to concoct a very good excuse – otherwise the decision could very well be set aside by a court.
Sue? Nah, never
Julius Malema said today that he “will take legal action against the Star newspaper and consider doing the same with other newspapers” because they defamed him. I will donate one months salary to the ANC Youth League if Malema’s defamation suit against The Star is ever heard in court. Unless Malema is really stupid – which I do not think he is – he will never actually follow through on this threat.
The reason is very simple.
If he sues The Star, the central questions in such a case will be whether The Star defamed him, whether the defamatory allegations were untrue, and whether the newspaper was negligent in publishing incorrect and defamatory statements about him. This will be rather traumatic for Juju and will become one of the most sensational trials in South Africa’s history.
Usually it will not be defamatory to claim that someone has paid cash for his home or that he only earns R20 000 per month. Alleging that Patrice Mosthepe, say, or one of the Oppemheimers, paid cash for a house would not be defamatory because paying cash for a house is not a crime and neither does it say anything about the character of that person.
It could be considered defamatory if a court found that the report wrongly implied that Malema was corrupt or that he was a liar by having claimed on TV that his only source of income was his ANC salarywhen it was not. The Star report does imply that he has access to funds over and above his salary, so whether he has other sources of income will become a central matter in the trial.
The defamation trial will then become a very public lifestyle audit of Malema who will be forced to reveal all his sources of income. His bank statements and his lifestyle will go on trial and under cross examination he will have to answer questions about how he can afford a R250 000 watch on an ordinary ANC salary.
The newspaper’s lawyers would request to access to all of Malema’s financial dealings – his salary, his other sources of income, his expenses – which will all be laid bare in court. Malema will be cross examined about his R250 000 watch, his business dealings, his interactions with Polokwane politicians and municipal administrators.
As Oscar Wilde, Jeffrey Archer and Ronald Suresh Roberts found to their detriment, a defamation case can expose one to serious scrutiny and can expose the existence of facts which may well prove the very defamatory allegations which one had approached the court to challenge and disprove and could really destroy one’s reputation
Unless Julius is therefore absolutely clean and really only live on an ANC salary (something very few people would believe) , bringing a defamation case would be a gamble of such irresponsible proportions that Malema, or at least his legal advisor (will he employ black council?), would not want to take that chance. A litigant who sues for defamation better have clean hands. If he does not, he risks losing everything. Even if he does not lose everything, his lifestyle – warts and all – will be exposed in court and very few litigants will emerge with their integrity in tact.
The threat of legal action reminds one of the threat to sue for defamation which was made by Jacob Zuma and Judge President John Hlophe. In both cases these threats were publicity stunts. We all knew the cases would never go to trial but those making the threats hoped that making such threats would create the impression that they had nothing to hide. It’s an old trick, but I wonder how many still fall for that.
In any event, it has now emerged that Malema has been less than truthful when he claimed yesterday that he has given instructions to lawyers when he became ANC President to deregister his directorships of companies. One company of which Malema is a director was only registered a year after he became Youth League President. He could therefore not have done what he claimed to have done.
In any case, this is not the issue, as one can still benefit financially from a company even if one is not a director. The question is not whether he is a director of companies, but whether he benefits financially from these companies and whether these companies have fairly – without corruption – obtained the government tenders.
To come clean Malema will have to show that these companies tendered in an open and transparent process for government work and obtained the tenders because it was best placed to deliver the work at the most competitive price. I for one would be surprised if this was the case. Given Malema’s political influence, it is not unreasonable to suspect that he used his connections to get the tenders – which would constitute a criminal offense. That is why the allegations are so damning and why Juju is fighting so hard to try and address them. The newspaper reports have now tainted Malema because the stench of corruption hangs over him.
If Malema wants to clear his name he will have to bring evidence that the tenders were awarded to the company with the best track record who offered to do the work at a reasonable price. This he has not attempted to do. His silence on this score, will lead many to draw their own conclusions.
Whatever happens, The Star is safe. They will never have to meet Malema inside a courtroom as Malema cannot afford to have his finances and lifestyle exposed
Julius: So many questions and so few answers
The ANC is correct to point out that in principle, it is not illegal or in contravention of any code of conduct for a company in which Julius Malema is involved, to receive government tenders. Malema is not an elected member of any legislature and neither is he a member of the executive. He is “merely” the President of the ANC Youth League and if he happens to be a director of a company that has been awarded lucrative government tenders, so be it. It might be unwise, but it is not illegal.
As Malema has often pointed out, some of the criticism aimed at him and other black South Africans who have become rich overnight, must surely be based on envy and on a racially-based double standard which holds that black people are not entitled to the same ostentatious lifestyle and love of bling than white people.
One hardly reads any negative comments about the manner in which rich white South Africans splurge money on cars, holidays and designer labels and nights of drinking at hip hotspots. Nor does one hear anyone questions being posed about where this money comes from and whether it was made with the help of an old school tie network of friends and family (which, after all, is a kind of affirmative action for whites).
However, recognising this fact does not mean that we should ignore allegations that Malema has been involved in a company that has received more than R130 million in tenders from impoverished Limpopo municipalities. First, if this is true, it would expose Julius as a blatant liar. He told Debora Patta in a recent interview that he had no business interests. “I am not even rich,” he said “I am poor. I am paid by the ANC… I do not have any business interests.” When Patta asked him “Do you only get money from ANC?” he answered “yes.” The video is on You Tube, so one might want to check it out.
If Julius is indeed involved in a company who has received such lucrative tenders from Limpopo municipalities, a second set of questions arise. Were these contracts legally awarded after an open and transparent tendering process? On what basis was the company Julius is allegedly involved in awarded the tenders and did his Presidency of the ANC Youth League play any role in the awarding of the contracts?
Were these contracts competitively priced or were prices inflated and already impoverished municipalities required to pay far more for the work than they ought to have done? Was the quality of the work up to scratch and did the contractors actually do what they were contracted to do? Did the company and Julius pay taxes on the profits?
Today Julius said that he had resigned from all companies he was involved in when he assumed his position as president of the ANCYL in 2008, and has not been involved in any illegal tender processes. He did not say that he does not receive money from these companies or from anyone else. Someone should ask him.
However, if it is correct that he has resigned from the companies and do not benefit financially from them or from any other payments, another set of questions arise. If he is merely paid by the ANC, how can he afford a R250 000 watch and R50 000 repayments to the bank? Surely the ANC cannot pay him more than we pay the President of the country? If it does, why would it pay him so much?
Clearly, there are still far more questions than answers.
Another set of questions comes to mind. How did the newspapers get hold of the information about his lifestyle? Who tipped them off and why? Do they have anything to hide or are they gunning for Julius because of principled reasons?
Julius has now dared the journalists to find some answers to these questions. Could it be the beginning of the end for him?
PS: The important point here is not that Julius might be rich, that he lives a lavish lifestyle and wears expensive clothes. In a capitalist country such things are allowed and even celebrated. The issue is whether his money comes from crooked contracts. Such contracts – while upsetting members of the chattering classes – are really a kind of theft from the poor. This is because where government contracts are inflated and handed out to people without expertise it leads to a lack of service delivery.
While many people might therefore think that there is not that much wrong with corruption because it is a victimless crime, they are dead wrong. The victims of corruption are the citizens of the country – especially the poor – who rely on the state to provide it with basic services and to help improve their lives. Where a contract is given to a crony at inflated prices that crony in effect steals from the poor. Roads are not built; houses leak or fall down, water is never purified, pavements are not upgraded, refuse not removed: and our quality of life suffer. All while well-connected individuals drive around in expensive cars, wearing R250 000 watches, while living in huge houses where they throw lavish parties for their friends.
Julius Malema and the non-denial
The story published in The Star yesterday about Julius Malema’s alleged lavish lifestyle has truly set the cat amongst the pigeons. The reason is that it goes to the heart of the titanic struggle within the ANC for access to state power and the legal and illegal tenders and benefits that flow from holding such power.
The Star alleged on Friday that Malema owns a R3,6m house in Sandown and a R1m mansion in Polokwane, both of which he paid cash. According to the report, Malema also owns a black Mercedes-Benz AMG, which retails at R734 000, and reportedlydrives an Aston Martin and a red Range Rover Sport. On Thursday night Malema went to a lecture at Wits University in a brand-new white Range Rover – with no number plates – which sells for R1,2m. Malema is reported to earn a net salary of R20 000 per month.
The Times, using the Standard Bank’s bond calculator, estimates that Maelma’s bond repayments would amount to R32,953.87 per month. His car repayment on a R734 000 Merc, according to Wesbank’s Vehicle Repayment Calculator, with a ten percent deposit, would come to R16,307.78 a month for 4.5 years.
The response to the article has been telling, to say the least. Malema hit back by saying:”Those who are calling for lifestyle audits, let them be the first ones to be audited… I know of a national leader of a union who stays in a R6-million house.” These words echo the extraordinary statement made by Jacob Zuma outside court after one if his appearances that if he was prosecuted others in the ANC would also go down. In effect, Juju is implying that if he is pursued others will also be exposed for corruption.
On a close reading the statement of the ANC and the ANC Youth League, “denying” the allegations against Malema amounts to no denial at. It is far too vague to amount to a denial and looks suspiciously like an admission of guilt. The statement reads in part:
The first untrue fabrication (sic) in the report is that Cde Julius has bought houses for cash. Cde Julius Malema has not at any stage bought any house for cash. Like every body else, he has purchased whatever houses or property registered in his name through banks. The second untrue fabrication (sic) is an impression created through the report that Cde Julius owns four expensive cars. We like to state on record that Cde Julius has one car in his name. The third untruth is the reported twenty thousand rands monthly salary that Cde Julius earns from the ANC. This is again very far from the truth.
So, Malema purchased his house through banks? Does this mean he took out a bond on the house or merely that the (cash) payment was arranged through a bank? The fact that the statement vaguely speaks about the purchase of a house through banks suggests there is no bond. In any event, if he took out a bond, how is he able to service the repayments on his house and his car on an ordinary salary?
Second, the Star never said Malema owned four cars, merely that he drove four cars, a claim not disputed by the ANC and its Youth League. The question is really how can Malema afford such an expensive car and who owns the three other cars he drives around in? On what basis does Malema have access to these cars? Are the cars registered in the name of one of his businesses or are they owned by someone else. If the latter, why are others allowing Malema to drive around in their cars? What are they getting for their generosity? And why is he driving around in a car without number plates? The last time a checked that was illegal?
The third question is, if Malema does not earn R20 000 a month as Youth League President, how much does he earn? Does he earn so much that he could afford bond and car repayments of almost R50 000 a month? If the answer is yes, how come the ANC is paying him such a huge salary? If not, where is the money coming from.
Like President Zuma’s infidelities and the alleged infidelities of Lennit Max, this is surely a public issue. Malema has enormous influence in the ANC and if he is living beyond his means and is being bankrolled by others, the question will arise as to why others are paying him? What are they getting in return for their money? Tenders, perhaps? Or are they paying Malema so that he can punt the nationalization of the mines which would allow those who own unprofitable mines to save their investments through a government handout?
So many questions, so few answers.
Radebe (LLM Leipzig) strikes again
Minister of Justice, Jeff Radebe, is a learned man. He obtained a B Iuris degree at the University of Zululand, and finished an LLM in International Law at the Karl Marx University in Leipzig in 1981. He also studied at the Lenin International School, Moscow in 1985, but it is unclear what qualification he obtained there.
It might be of no consequence that Radebe obtained most of his legal qualifications in a communist country. After all, the constitutions of most communist states described their political system as a form of democracy. On paper such states recognized the sovereignty of the people as embodied in a series of representative parliamentary institutions.
But here is the rub: Communist states such as that of East Germany and the USSR did not adhere to the principle of the separation of powers. Instead, they had one national legislative body (such as the Supreme Soviet in the Soviet Union or the Volkskammer in East Germany) which was considered the highest organ of state power and which was legally superior to the executive and judicial branches of government.
No wonder, then, that Radebe has some difficulty with concepts such as an independent and impartial judiciary and the separation of powers. They obviously did not teach that stuff in Leipzig or Moscow. Yesterday, Radebe got into a terrible muddle when he tried to defend the appointment of Adv. Mokotedi Mpshe as an acting judge. First he claimed that the appointment of a member of the NPA would not compromise the independence of the judiciary, amongst other reasons because:
Members of the NPA are paid by the government. The GCB makes a convenient omission which undoubtedly advances its course (sic) by not referring to instances where advocates and attorneys in private practice take positions as judges. These are legal practitioners who get briefed to appear on behalf of government and get paid by govt…who during their acting stints may have to adjudicate matters that involve govt.
Apart from the fact that Radebe confuses the government and the state (maybe because in Leipzig and Moscow in those days there was no distinction between the two?) his argument about payment of acting judges completely misses the point. Full time judges are also paid by the state, but no one has suggested that they are not independent because their institutional independence is safeguarded. The fact that members of the NPA are paid by the state is therefore not the reason why the appointment of Mpshe (or any other member of the NPA) as acting judge would infringe on the independence of the judiciary.
Rather the problem is that NPA members are state employees and are subject to the authority of the head of the NPA – unlike advocates who work for themselves (and are not answerable to the Minister or the head of the NPA) and university lecturers who are subject to the authority of their universities (not to the Minister or the head of the NPA). A member of the NPA appointed as acting judge will be required to serve two masters by being both subject to the authority of the head of the NPA and subject only to the Constitution and the law which he must apply without fear, favour or prejudice.
As the Lesotho court of appeals warned, where a member of the prosecuting authority is appointed as acting judge his or her “official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors”. Such a person will not be independent as required by the law because he or she will be accountable to someone with a direct stake in the outcome of criminal cases.
Which brings me to Radebe’s second brilliant argument. He says the Constitution guarantees the independence of the NPA, so an employee of the NPA could therefore not be said not to be independent when acting as a judge. Oh dear, they must have forgotten to teach either logic or reason in Leipzig and Moscow.
First, it’s great to hear the Minister has had a change of heart and now believes in the independence of the NPA. When he defended the appointment of Menzi Simelane a mere three months ago he made it clear that he did not believe in such independence. It is also great that he has now corrected his boss, President Jacob Zuma, who said two months ago that the government is the NPA’s boss. Now that he has changed his mind and believes the NPA is independent, he will obviously ask the President to fire Simelane, who has a different view.
Second, Radebe seems to have a bit of difficulty to understand the concept of independence. Even if the NPA is independent from the government, it prosecutes cases to court. An independent member of the NPA who acts as a judge may therefore be asked to hear a case prosecuted by one of his colleagues. Such an acting judge could therefore not possibly be independent AS A JUDGE because he will not be independent from the NPA who is prosecuting the case before him or her – if he is still employed by the NPA.
Radebe seems to be unaware that an independent member of the NPA cannot at the same time be independent FROM the NPA.
In any event, Radebe also announced that Mpshe had resigned from the NPA. If he had any sense he would have focused on that fact to answer his critics. But he could not do so, because that would have amounted to an admission that serving NPA staff should not be appointed as acting judges and that, in turn, might have required him to admit (gasp!) that he was wrong. And I am told people who studied in Leipzig in the eighties do not like doubt and very much hate being wrong.
Road rage drivers beware
The Sowetan reported yesterday that a Cape Town student, Chumani Maxwele, 25,was arrested last week on charges of crimen injuria for “waving away” President Jacob Zuma’s noisy, blue-light convoy. Maxwele says he ”waved away” the President’s blue light convoy “as if to say ‘hamba’” because of the noise. The police claim that Maxwele had shown his middle finger to the convoy in that time honoured but slightly rude gesture so beloved in South Africa by drivers with road rage. According to Maxwele:
After that a black BMW X5 pulled up and three guys jumped out, pointing guns at me. They pushed me into their car and shouted at me that I had disrespected the president. They pulled a bag over my head and drove me to Zuma’s residence.
He claims Mowbray police accused him of saying that Zuma had seven wives. They claimed he insulted Zuma – and told him “intelligence” agents would deal with him. The next morning, people whom he believed to be intelligence agents arrived to interrogate him, asking him for his opinion of Zuma and which faction of the ANC he supported at Polokwane. Maxwele said the agents told him “be careful what you do when a convoy passes because people are sensitive. Don’t touch your head or your waist”. In the meantime, plain-clothes officers raided his house, going through his personal diaries and notebooks. Maxwele spent the day in holding cells underneath Wynberg magistrate’s court and was only released 24 hours later.
If any of this is true, the police behaved in a rather shocking and outrageous manner which threatens the dignity and freedom of every South African citizen.
It is true that the crime of crimen injuria does exist in South African law. Traditionally, the crime has been defined as one where a person intentionally and unlawfully impairs the dignity of another person. This means that where someone subjects another person to offensive or degrading treatment, or exposes that person to ridicule or contempt to such a degree that, objectively considered in the light of prevailing norms of society, it is criminally insulting, he or she commits a crime.
Of course, the prevailing norms of society must be judged against the values and norms enshrined in the Constitution. Given the commitment in the Constitution to democratic values, political contestation, the right to vote and free and fair elections, the right to quality and freedom of expression – which includes the freedom to receive and impart ideas and views - hurling racial abuse at another person will probably constitute crimen injuria. Shouting “Jou ma se…..” at your employee might also reach the level of a crime.
However showing the middle finger to a politician or ridiculing a politician in some other way will almost never constitute unlawful behaviour because the prevailing norms in a constitutional democracy allows for robust debate and political contestation. To hold otherwise would be absurd. Imagine in what trouble members of the ANC Youth League would have been for flashing their buttocks at opponents at the Youth league conference, if the court decided that flashing a mere middle finger at someone was unlawful.
In any case, even if a court found that showing someone the middle finger was unlawful, such a person will never be convicted of a crime on the basis of the maxim, de minimis non curat lex (”the law does not concern itself with trifles”). To hold otherwise would be to invite the opening of the floodgates of crimen injuria prosecutions. How many drivers would not find themselves in jail because they lost their tempers? Half the ANC Youth League would have had to be locked up and yours truly would definitely not be a free man for long. A successful prosecution of this case would also invite abuse, as powerful politicians and the police may be tempted to use the crime – as it allegedly did in this case – to stifle legitimate debate and criticism, something that would be in breach of the Bill of Rights.
Maxwele will never be successfully prosecuted. If the allegations are true, he was clearly harassed and intimidated in an unlawful manner by ridiculously overzealous cops. In a constitutional democracy based, inter alia, on the Rule of Law, the President is not entitled to more protection of his dignity than any ordinary person. On the contrary, the President is usually the leader of the majority party in Parliament and as such he should be entitled to less protection of his dignity. If we cannot ridicule the President or flash rude signs at him, our ability to express our feelings as citizens about those who govern us would be severely curtailed. This will infringe on the human dignity of all of us because it will prevent us from expressing our strong opinions about politicians and will thus limit our ability to form and express opinions that are unpopular.
If it is true that the people who interrogated Maxwele asked him about his political views, the police officers or security agents acted in a brazenly partisan manner by asking party political questions with no bearing on the case. This would suggest that the officers were in breach of the provisions of section 199(7) of the Constitution which prohibits any member of the security services from furthering, in a partisan manner, the interests of a particular political party. Maxwele’s political views about Polokwane or his membership of a political party had absolutely nothing to do with the crime he was alleged to have committed. Whether he was a Freedom Front Plus member or a member of Azapo should be of no concern to the police or intelligence services.
The last time I checked, showing someone – especially the President – the middle finger cannot be equated with undermining state security or with a wish to overthrow the state. Instead it shows a healthy disregard for the pomposity and self-importance associated with politicians. A person who flashes a middle finger at the President (or at Julius Malema or Helen Zille, for that matter) might be considered rude by many of us, but such a person is really a good citizen because he is demonstrating an active interest in our political system and the way the country is being run as well as a willingness to express himself about it.
Helen Zille responds
Helen Zille is trying to dig herself out of the hole she got herself into by claiming the Lennit Max sex scandal was a private matter. She responded to my criticism of her and I posted her response here. My short response, pointing out the similarities between the Max case and the Manto Tshabalala-Msimang cases is here. Judge for yourself whether she had dug herself deeper into a ditch or has shown principled and courageous leadership….
