News that the purported National Director for Public Prosecutions (NDPP), Menzi Simelane, has decided to intervene and to stop attempts by the Asset Forfeiture Unit (AFU) to attach some of the assets of Mr Fana Hlongwane because of suspicions that Hlongwane received his money through corrupt arms deal practices, comes as no surprise. Providing reasons for the decision, Simelane argues that there is not sufficient evidence that Hlongwane indeed broke the law.
Simelane’s view differs from that of his own staff intimately involved in the case. Staff at the AFU maintain that there is good reason to suspect that the R200 million received from successful arms deal bidders was paid as bribes and they have pressed for the case against Hlongwane to go ahead.
Simelane points out correctly that:
if forfeiture process were to be instituted by the NPA, it would require a good basis for doing so as opposed to a simple suspicion. The test though remains lesser than the criminal test of proof beyond a reasonable doubt. It is a civil test of balance of probabilities.
But curiously, he then applies this test in a rather eccentric manner, arguing that because the test is one of probabilities Hlongwane needed:
to show on a balance of probabilities that the money was not obtained from criminal activities. Put another way, they needed to rebut the suspicion of criminal activity. They did not have to prove beyond a reasonable doubt that the money was obtained legally. For this purpose they were advised to submit a formal memorandum supported by annexures, if any.
Simelane seems to argue that the submissions made by Hlongwane’s lawyers cast doubt on the suspicion of criminality and hence necessitated the dropping of the case. Because the source of the money was known, it was for the AFU to provide other evidence to prove that the money was not received as part of an attempt to corrupt the arms deal. This seems strange as the test is one of probabilities and one must ask, what is more probable: the version presented by Hlonwagne’s lawyers or the version presented by the AFU.
Just because Hlongwane provided a story that casts doubt on the version presented by the AFU does not mean that on a balance of probabilities Hlongwane was not involved in corruption. On balance, one has to decide which version is more plausible, not whether the AFU has a watertight case.
AFU lawyers are adamant that on the balance of probabilities there was criminal conduct and thus maintain their version is more plausible and one would have thought that a conscientious and honest NDPP would place sufficient trust in his lawyers to go with their version.
Nevertheless Simelane chose rather to believe Hlongwane. This is strange as BAE who paid the money has entered into a plea bargain on some of the bribery allegations against it while other charges against them were dropped, partly because anti-corruption legislation in the UK is deficient – unlike South Africa who has much stronger anti-corruption legislation.
The crux of the matter is this: there is strong suspicions, based on the available evidence, that BAE paid bribes via Hlongwane to secure arms deal contracts from South Africa. Hlongwane’s lawyers provided a different story. One had to choose either to believe this story of Hlongwane or to believe the mountains of circumstantial evidence pointing the other way. Simelane chose to believe the former and not the latter.
That was a choice his own investigators with intimate knowledge of the details of the case would not have made. The question then arises: why did Simelane believe Hlongwane rather than the lawyers in the AFU? To answer this question one has to remember that the AFU lawyers are not well-connected ANC funders and supporters while Hlongwane is. One also has to remember that Hlongwane is alleged to have paid bribes of millions of Rand to various ANC connected people and recall that Simelane was deployed to the NDPP by the ANC.
If one has strong political loyalties and one is presented with two versions of events, one is likely to believe the version that will be most beneficial to one’s political masters.
Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right. But given Simelane’s track record as a loyal servant of the rich and politically powerful, reasonable people will suspect that Simelane chose to believe one rather than the other side because he was politically required to do so. Was his choice thus a political rather than a legal choice?
A choice for the other version presented by the AFU may have had adverse consequences for many people in the ANC who is alleged to have taken bribes. I for one suspects that this may well have tilted the scales against the AFU in favor of Hlongwane. If Simelane was an honest man and if he had not been exposed at the Ginwala Inquiry as someone who was prepared to act in ways that are both dishonest and perhaps even criminal, I would have given Simelane the benefit of the doubt.
However, given the grave doubts about Simelane’s honesty and integrity, it is impossible to give him the benefit of the doubt. To this observer a reasonable suspicion thus exist that Simelane made a political decision to save the ANC further embarrassment from the arms deal bribery. The AFU lawyers who actually worked on the case agree with me and not with Simelane.
Would Vusi Pikoli have made the same decision as Simelane? I suspect not. No wonder he was fired.
And so the national democratic revolution is producing favorable results for the people.
Next stop the high courts and the CC – with the JSC now “correctly” loaded to pick the “best” candidates.
Why do I always get a sinking feeling in my stomach when I visit this site? Because it hardly ever has good news to report, probably.
The next question is, what do we do? With the ruling powers acting as if they’re beyond the influence of any of the people who elected them – and apparently with good cause to do so – is there anything that citizens can do to change the culture of governance in South Africa, and to arrest and, hey, maybe even reverse the steady decay of our democratic institutions?
Prof,
I will assume that you have personally been informed by the AFU lawyers or at least seen some document emanating from them wherein they express a different view to that of the NDPP. If my assumption is correct, I will agree with you that there appears to be something shady about an NDPP deciding to drop a matter after receiving representations from the defence and overlooking the evidence (circumstantial as it might be) from the NPA’s own investigators.
In the greater scheme of things though, I don’t think we should be suprised to see Adv Simelane pulling up a few political strings – we knew that he would do this before he took office!!
This story reminds me a bit of the movie “The Untouchables” which was loosely based on the story of Eliot Ness and his pursuit of Al Capone. Effectively you had gangsters doing what they wanted because the top ranking police officials and judges had been bribed.
You would think that someone in Simelanes position would extra cautious, as unless there was strong evidence that Hlongwane was not involved, any attempt by Simelane to go against the evidence presented to him by his staff would immediately raise suspicion. For this reason alone I think he deserves to be criticised.
I would personally like to know how many times the AFC has been wrong and has had to return assets they previously confiscated? One would hope it is not something they would do lightly?
What was that big word starting with a T he used not-so-long-ago? Oh yes, TRUST. Trust the NPA. Truuuuuust, and pay no attention to the man behind the curtain. Sigh…
the issue of the late joe modise and mr hlongwane was well known by npa long before even zuma was charged, and it was not on the interest of the then ndpp to proceed since they wanted a bigger fish to fry(jz) it is a public knowledge that the then president and ndpp use to meet and talk about who to be prosecuted or not, so they believed that they did not have a case then,so why now, how strong is the evidence, how long will it take to loose the case(10 years), so we rather use the money to build houses and health care than following political agenda based on nothing but ego and grudge.
kenneth
This matter pased through the desks of President Mbeki, NDPP Ngcuka, Auditor-General Shauket Fakie, NDPP Pikoli, Public Protectors and others. Are we not making Simelane a scapegpoat?? How did our best constitution with all its arms missed this one? If this is a cover up then how did we manage to round up everyone??
Seems like Simelane has ushered in the birth of a new organisation: Executive Outcomes.
The Rule of Law is a myth – at least, with the ANC (and Simelane) in charge thereof.
kenneth says: March 23, 2010 at 15:40 pm
“it is a public knowledge that the then president and ndpp use to meet and talk about who to be prosecuted or not”
I would be very interested to know the source of this information. Care to indulge me!!
Anonymouse says:
March 23, 2010 at 16:30 pm
“The Rule of Law is a myth”
Hmmm.
Careful Mouse – I got roasted for suggesting that the law is the luck of the draw!
Gwebecimele says:
March 23, 2010 at 15:52 pm
“If this is a cover up then how did we manage to round up everyone??”
QED!
Redeployment to suspensions to outright dismissal.
The Sword of Damocles was a powerful weapon indeed.
As is the promise of a better life for some!
@ Maggs
Maggs, I notice you did not quote the second half of Mousie’s sentence:
“at least, with the ANC (and Simelane) in charge thereof.”
Agreed Anonymouse: however, we still wait to know how to effectively challenge and end this ignoble and destructive approach which the ANC appears to have mastered. I have yet to read or hear what can be done legally to right the ongoing abuse of Lady Justice. I have no doubt she awaits our actions to raise her up.
The possible New Democratic Alliance is heartening; however its a political action and will take much time, but legally, what?
Put on the thinking caps, there is something in the law which can be utilized to change this destructive scenario. Where is the creativity from you warriors of the law? Is it lack of courage or will, or are you representing self serving, self protective temptation, those continual billable hours for one’s own comfort?
With our Constitution and Legislation, there is an answer. Why are we paralysed?
Sirjay, the so-called “New Democratic Alliance” will never succeed if it adopts a “liberal” perspective. This is why, as Maggs points out, the DA will never attract the support of the masses. Our people know all too well that the liberals will re-instate capitalism, with its attendant yawning gulf between rich and poor.
I am no great fan of Mr Malema, but I am grateful that he is there to caution us against the siren calls of capitalist inequality!
Michael Osborne says:
March 23, 2010 at 18:27 pm
Hey Michael,
“at least, with the ANC (and Simelane) in charge thereof.”
There’s continuity of sorts it seems: the rule of law was a myth before the ANC (and Simelane) were in charge thereof.
As the saying goes, the more things change …
Mikhail Dworkin Fassbinder says:
March 23, 2010 at 21:05 pm
“This is why, as Maggs points out, the DA will never attract the support of the masses.”
Hey Big D – back to making up tales are we?
Oh well, if Julius can do it so can you – it’s the freedom of speech thingy, say anything to get attention, as long as someone is willing to listen.
Prof says ”Maybe all those lawyers at the AFU are wrong and Simelane – with his limited knowledge of the facts – is right.” I am not sure Simelane has limited knowledge. He knows EVERYTHING about the case, that’s why he’s doing this. See M&G 2008 article http://www.mg.co.za/article/2008-12-12-arms-playboys-accounts-frozen. ”The affidavit also shows that the Scorpions had to wage a battle against their own Justice Department — and specifically justice Director General Menzi Simelane, already the target of the Ginwala inquiry — to be allowed to co-operate with the SFO.”
@MDF
With his penchant for exploiting opportunities to enrich himself and his conspicuous consumption of Western-made bling (no cheap Chinese-made clothes, fake watches or “traditional” alcoholic beverages for him) Malema’s behaviour admirably illustrates the increasing “yawning gulf” between the opportunistic capitalist, and the poor.
Justice,
to spell it out: that is exactly Mikhail Dworkin Fassbinder’s point.
Sirjay, not all the best legal minds in this country are only interested in an issue if they smell money. There are still principled believers who will fight for the Bill of Rights, constitutionalism and the rule of law.
An excellent example is the JASA team which spanked the state when it refused to pay compensation for surrendered firearms, and are about to do so again – the state is again in default in filing its papers.
Then you have the team from Webber Wentzel Bowens who intervened – again, for no money – when the Ministers of Defence and Safety and Security decided to stage a raid for publicity purposes on a war museum which they said contained sufficient arms to raze Soweto – and blinded the curator.
Did you hear Walters being mentioned by ministerial spokesdroids before Pierre spanked them on this blog?
As the efforts gain pace to put alternative structures of government in place where the godless, shameless ANC has destroyed governance, a good place to start looking for solutions is the common law and apartheid-era statutes – which often provided more protection for basic rights to people who kept out of controversial politics than you would find in practice in the constitutional era.
I have brought it up before but no-one cares to debate it: ‘Fraud’ is very widely defined and put to proper use could stamp out the rampant corruption of the kleptocrats. Simelane can act as a bulwark only because most people would rather chirp than get their hands dirty. Ask someone to explain to you how Act 51 of 1977 makes provision for private prosecutions where Simelane makes a decision nolle prosequi. Together with PAJA these are powerful weapons.
@ Sarah
I know, just emphasising it.
And now the Jub Jub case.
Julius Malema visits Jub Jub in the cells.
Next thing Menzi Simelane intructs the chief prosecutor not to oppose bail.
The chief prosecutor insists on receiving the instruction in writing, as he is entitled to do.
The chief prosecutor is relieved of his duties.
Can anyone be blamed for wondering if Simelane recieved the instruction that bail should be imposed form Malema?