Quote of the week

Mr Zuma is no ordinary litigant. He is the former President of the Republic, who remains a public figure and continues to wield significant political influence, while acting as an example to his supporters… He has a great deal of power to incite others to similarly defy court orders because his actions and any consequences, or lack thereof, are being closely observed by the public. If his conduct is met with impunity, he will do significant damage to the rule of law. As this Court noted in Mamabolo, “[n]o one familiar with our history can be unaware of the very special need to preserve the integrity of the rule of law”. Mr Zuma is subject to the laws of the Republic. No person enjoys exclusion or exemption from the sovereignty of our laws… It would be antithetical to the value of accountability if those who once held high office are not bound by the law.

Khampepe j
Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector including Organs of State v Zuma and Others (CCT 52/21) [2021] ZACC 18
14 December 2011

How long will Heath last?

After Adv. Willem Heath (then still a judge of the High Court) was first appointed as head of the Special Investigating Unit (SIU) by then President Thabo Mbeki Nelson Mandela, he soon became the darling of the chattering classes. He was outspoken and seemed to love the limelight, but he lacked the diplomatic and political skills that might have helped to endear him with his direct boss — the President of South Africa.

It is safe to assume that by the time the Constitutional Court found that it was constitutionally problematic for a sitting judge to head the SIU, President Mbeki was rather glad to see the back of him. The Constitutional Court had found that the appointment of Heath was unconstitutional because it infringed on the separation of powers doctrine, summarising its findings as follows:

The functions that the head of the SIU is required to perform are far removed from “the central mission of the judiciary.” They are determined by the President, who formulates and can amend the allegations to be investigated. If regard is had to all the circumstances including the intrusive quality of the investigations that are carried out by the SIU, the inextricable link between the SIU as investigator and the SIU as litigator on behalf of the state, and the indefinite nature of the appointment which precludes the head of the unit from performing his judicial functions, the first respondent’s position as head of the SIU is in my view incompatible with his judicial office and contrary to the separation of powers required by our Constitution.

Heath then re-invented himself as a private consultant and threw in his lot with several people under investigation by the now defunct Scorpions, including the late Brett Kebble and, of course, Jacob Zuma. I recall taking part in a TV debate with Heath about the Scorpions decision to charge Jacob Zuma (before charges were dropped by the NPA) and finding him to be underwhelming. I thought that he was either not very bright or that he was not entirely  on top of the issues being debated. (Maybe my judgment was clouded by the issues, but I leave that for others to decide for themselves.)

As we all know, Heath has now made a comeback and was recently re-appointed as the head of the SIU by President Jacob Zuma. Since then he has made some rather startling claims, expressing several widely held (but unproven) suspicions about the alleged interference of former President Mbeki in the independence of the NPA as well as criticism of the High Court, Supreme Court of Appeal and Constitutional Court who had all confirmed that the state had proven beyond reasonable doubt that Schabir Shaik was a crook and that he had solicited a bribe from an arms company on behalf of Zuma and had also bribed Zuma directly.

It also transpired that he had been given permission to do private consulting work while heading the SIU. This inevitably raised questions about the wisdom and legality of his re-appointment.

The SIU is a strange beast. It is a creature of statute given wide ranging powers to investigate serious maladministration in connection with the affairs of any State institution; improper or unlawful conduct by employees of any State institution; unlawful appropriation or expenditure of public money or property; unlawful, irregular or unapproved acquisitive act, transaction, measure or practice having a bearing upon State property; intentional or negligent loss of public money or damage to public property; and other forms of corruption. But this power is circumscribed in the sense that the SIU is only empowered to investigate a matter if the President formally requests it to do so.

Section 3 of the Special Investigating Units and Special Tribunals Act states that the President “must appoint a person who is a South African citizen and who, with due regard to his or her experience, conscientiousness and integrity, is a fit and proper person to be entrusted with the responsibilities of that office, as the head of a Special Investigating Unit established by the President”. The SIU is therefore at the same time quasi-independent, yet acts only at the behest of the President. As such the head of the SIU can be viewed as the President’s personal anti-corruption tsar.

If the head of the SIU is an employee in terms of the Public Service Act (something that is not clear to me) he would also be bound by section 30 of that Act which states that no employee is allowed to perform remunerative work outside his or her employment in the relevant department, except with the written permission of the executive authority of the department. When outside work could reasonably be expected to interfere with or impede the effective or efficient performance of the employee’s functions in the department or constitute a conflict of interest, permission should ordinarily not be given.

Whether this provision is legally applicable to Adv. Heath or not, at the very least it seems advisable that — given the nature of the work done by the SIU — Heath should reveal the nature of the outside work he is doing to prevent the perception of a conflict of interest. This is so for the same reason that Adv. Heath’s comments in City Press seem completely inappropriate.

When the SIU investigates allegations of corruption and goes after those allegedly involved in corruption, it is important that its head should be viewed as being beyond reproach and as having the requisite credibility and legitimacy to avoid allegations that the SIU is being used to settle political scores. One can well imagine that if Heath investigates corruption within the state, those fingered by any investigation will immediately claim that they are being unfairly targeted for political reasons and that Heath is assisting President Zuma to settle political scores with his opponents to improve Zuma’s chances of re-election as ANC President next year. This will negatively affect the credibility and effectiveness of the SIU and will provide those targeted for investigation with political cover to pay nt themselves as victims of a conspiracy – even when this is clearly not the case.

An interesting legal question is whether the SCA’s Simelane judgment could be used to challenge the lawfulness of his appointment. After all, the requirements of the head of the SIU needing to be “fit and proper” mirrors the requirement in the NPA Act for the National Director of Public Prosecutions having to be fit and proper.

In principle, it should therefore be possible to apply the principles developed in the Simelane case to the Heath case. In practice, the facts are slightly different as Heath’s latest rather outrageous statements were made after his appointment. But, if one follows the logic of the Simelane judgment one might well ask whether, given the fact that Heath himself has admitted to run a trust fund on behalf of Bret Keblle (from which he paid various people for undisclosed reasons), the President interrogated this issue sufficiently to ascertain whether Heath was indeed “fit and proper” as required by the SIU Act and whether zuma might not have acted irrationally in appointing Heath without asking enough questions about this unseemly arrangement.

According to news reports, Heath’s company, Heath Executive Consultants, was contracted by Johannesburg Consolidated Investments (JCI) as consultants and, according to company records, initially paid a monthly retainer of R230 000, later increased to R325 000. According to JCI’s forensic audit, Heath received payments of more than R18.5 million in the space of just over three years, more than half of which was apparently channelled to third parties.

Heath said he was not privy to the nature of contracts with third parties, and admitted it was possible, as suggested by forensic auditors, that some of these recipients were indeed former employees of DRD and Ain — two companies that were at the centre of a fierce dispute estimated to have cost Kebble more than R90-million.

Questions could therefore be asked about the legality of Heath’s appointment.

However, my guess would be that this case will never go to court (the DA perhaps feeling less worried about threats to the Rule of Law in the case of Heath?) and that his appointment will not be challenged before a court.

Nevertheless, I would not be surprised if the President decides on his own to retract the appointment of Heath, given the embarrassment already caused by him since his re-appointment. And even if the appointment is not reversed in the next few days, I would not be surprised if Heath does not last long in his new role. Being someone who seems rather clueless about politics and diplomacy (and a bit of a cowboy to boot), he is bound to disappoint and embarrass President Zuma – just as he did Mbeki. How long then before he becomes a liability for the SIU and, more importantly, for President Zuma and is fired?

PS: The original version of this article wrongly stated that Heath was appointed by Thabo Mbeki. This has now been corrected.

2015 Constitutionally Speaking | website created by Idea in a Forest