Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation. This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.
Carmel Ricard wrote a scathing column in the Weekender in which she quoted at length from a judgment handed down by then acting judge Muzi Wilfred Mkhize SC, who has been tipped to become the next National Director of Public Prosecutions. The judgment contains some shocking (and it must be said, some hilariously), incomprehensible tidbits that would make Julius Malema blush. Money quote:
Rejecting a claim by the accused, Mkhize said their version “bothers on stupidity”. Elsewhere, having dismissed their “stupid” version of events, he notes that the six accused were “appealing witnesses”.
It’s not just that the judgment is incomprehensible — there’s also precious little legal reasoning evident in the 19 pages. Who would compile a judgment of this quality? Not someone fit to be a judge: it shows neither respect nor aptitude for the position.
I must say the tone of the column made me feel uneasy. Perhaps because I am not a first language English speaker myself and sometimes get my tenses mixed up as well, I felt a bit sorry for Adv Mkhize. Was this kind of mocking of a senior Advocate not perhaps a kind of thinly veiled racism? I am on record as saying that the ethically challenged Mkhize would be the worst possible candidate for head of the NDPP, but should one not be a bit sensitive to cultural differences when one reads judgments by individuals whose first language is not English?
After reading the judgment in its entirety I must say Ricard does have a point – although her gleeful exposure of Mkhize still leaves me uncomfortable. It is not (only) the fact that the judgment is incoherent and at places incomprehensible. It is that it utterly lacks legal reasoning. For example, there was a trial within a trial to establish whether the confessions of the accused should be admissible as evidence. After dealing with the evidence the “reasoning” on which the decision about this rather important aspect rests, reads as follows:
After listening to the evidence it is ordered that the statements made by accused 1,2,3,4,6 & 7 to the commissioned officers or magistrate were made freely & voluntarily with accused in their sound & sober senses having not been influence there to here to such statements are admissible as evidence against the accused persons.
Where is the reasoning? Later on when the acting judge rejects the evidence of the accused he writes:
The version by the accused 1,2,3,4 & 5 give that know nothing about the housebreaking at Boxer cash & carry, that they did not see the green bag in the vehicle driven by accused 1 whilst they were passengers bothers on stupidity and it is rejected as a lie, the accused according to the evidence were almost caught committing crime red handed.
How can one “almost” be caught committing the crime red handed? What is clear from the judgment – even if one looks past the embarrassing English and the incoherence, is that underneath all that there is not a very sharp legal mind at work. Clearly this man is not fit and proper to be the head of the prosecuting authority in South Africa? That should have perhaps been the focus of Ricard’s column, not the weird English used by the potential next head of the NDPP.
Or maybe I am just hyper sensitive?
Meanwhile President Kgalema Motlanthe has said a rather wise thing, namely that the JSC might have to get involved in the appointment of the head of the NPA – just like judge Chris Nicholson suggested. Will this not go some way to address the argument of principle sometimes used by Jacob Zuma and his supporters (when it suits them) that the NDPP cannot be independent because he is appointed by the President?
Perhaps the same process as that used when appointing jduges to the Constitutional Court could be followed, where several names are sent to the President by the JSC who has to choose one of that names. Such a process will strike the right balance between the fact that the head of the NDPP must implement the prosecutions policies of the government of the day on the one hand, while acting without fear, favour or prejudice on the other.
Maybe the NPA act can be amended before Vusi Pikoli is replaced? Then maybe we can get a competent and credible person to head the prosecuting authority. Come to think, such a person could be… er…. Vusi Pikoli. One thing is sure Adv Mkhize would not make any shortlist of the JSC.BACK TO TOP