An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The report by the Public Protector, advocate Thuli Madonsela, on the unlawful and unconstitutional leasing of buildings by the Police from “businessman”, Roux Shabangu, leaves several questions unanswered. As Madonsela said at a press conference yesterday to announce her shocking findings, the million-dollar question was: “How did Shabangu get involved with [the police]? His own evidence was not very helpful.”
The report makes clear that National Police Commissioner Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde have acted in flagrant disregard of the law and of clear advice by lawyers and advisors in order to ensure that this deal is pushed through. It was as if their jobs and their lives depended on these deals going through — despite the fact that the deals are clearly unlawful and invalid and despite the fact that they must have known that they were both exposing themselves to serious allegations of culpability in unlawful and potentially even corrupt practices.
The “million dollar question” is why they were so hell-bent on seeing this deal through.
In her report, Madonsela said that Mahlangu-Nkabinde ignored the opinion of two senior advocates and sealed the deal with Shabangu on November 22, the day that senior advocate Pat Ellis told Mahlangu-Nkabinde that the lease was unlawful. Mahlangu-Nkabinde disregarded an undertaking made by her predecessor, Geoff Doidge (who had just been fired by President Zuma), who had told the police that he would not finalise the lease pending the outcome of Madonsela’s investigation.
Shortly after President Zuma fired Doidge and Mahlangu-Nkabinde took office, her staff told Nedbank, Shabangu’s financier, that the department would honour the lease and the bank should release funds to Shabangu. Mahlangu-Nkabinde announced in December that the deal would go ahead.
Mahlangu-Nkabinde suspended her director-general, Siviwe Dongwana, on December 8 – the day he was due to be interviewed by Madonsela for her report. Describing Public Works’ involvement in the deal as “reckless”, Madonsela said Mahlangu-Nkabinde must explain her decisions to the cabinet. It is unclear why Mahlangu-Nkabinde acted in this manner while knowing that the deal was being investigated by the Public Protector and that the unlawful and unconstitutional actions might be revealed in a report produced by the Public Protector and might curtail her political career.
Meanwhile Bheki Cele has pointed out that no evidence has been found that he knew Roux Shabangu or was involved with him in any way at the time that this lease was pushed through in an unlawful manner. Why then was there such urgency on the part of the police commissioner and the new minister of Public Works to push through this deal in an unlawful and unconstitutional manner?
Could the answer lie somewhere else?
Is it relevant that newspapers have reported that Roux Shabangu has plans to build a training centre for welders and boilermakers in President Jacob Zuma’s village, Nkandla, saying it was a token of appreciation “for having a leader like Zuma, who was able to unite the nation”. Admitting that he knew Zuma well, Shabangu was reluctant to elaborate on this friendship, simply saying: “But this has nothing to do with Zuma. I am not going to go into that. I am not going to deny that I am politically connected, because one day you are going to see me at a function with ministers.” Is this relevant at all to understanding the present scandal?
We also know that the police commissioner is a close ally of President Zuma. Is this relevant at all?
Now, we know that President Jacob Zuma in the past had taken money from a crook and then used his official position as a MEC and then Deputy President to do favours for this crook. The crook, Schabir Shaik, was convicted of bribing President Zuma and was sentenced to 15 years in prison. President Zuma has never explained why he took the money from Shaik and why he did those favours for Shaik.
In the light of these facts, questions must surely be asked about why President Zuma fired Geoff Doidge after he cancelled the lease. One will also have to ask why Mahlangu-Nkabinde and Cele acted in such a reckless disregard for the law — even when they knew that the transaction was being investigated. Why did they ignore all the legal advice and push ahead with the lease? It does not seem to make much sense.
Unless one concludes that both Cele and Mahlangu-Nkabinde are astonishingly incompetent, reckless and perhaps even deeply corrupt themselves, another answer must be found for this inexplicable behaviour. It was almost as if they acted in this way because they knew they had political cover for their unlawful behaviour from more powerful politicians in South Africa.
It strikes me that the person who has to answer these question is the President himself.
Now, it might well be that the fact that Shabangu knows the President, that the President fired his Minister who tried to stop the lease and that the President appointed a new Minister who immediately took steps to save the deal of President Zuma’s good friend, are all mere co-incidences and that our President is not in any way involved in this scandal. I am therefore NOT making an allegation that the President is involved in this scandal. The truth is, we do not have any evidence of such involvement.
But at the very least, the President owes the voters of this country an explanation. Does the President know Mr Shabangu “finish and klaar” as claimed by Mr Shabangu? Did Mr Shabangu ever give the President or anyone associated with the President any money or did he do any other favours for him or anyone close to him? Did the President speak to commissioner Cele, Minister Doidge or Minister Mahlangu-Nkabinde about the lease? If he did, what did he say to them?
These are all questions that reasonable people will now ask. Only the President can allay any fears that he might have been involved in the scandal by explaining the reasons for his firing of Doidge, by denying that he knows Mr Shabangu or by denying that he spoke to any of the parties involved in this matter.
Of course, the easiest way to allay any fears of involvement on the part of the President is for him to fire the police commissioner as well as Mahlangu-Nkabinde immediately. If he does not do so, then very difficult and awkward questions will remain and will have to be answered by the President. If he fails to act against the wrongdoers or if he fails to allay any reasonable fears about this deal in other ways, many people might be tempted to draw their own conclusions.
Personally I would not wish to draw the conclusion that our President was in any way involved in this matter. I would want to think that our President had learnt his lesson with Schabir Shaik and that he now avoids doing any favours for any friends — whether they had done some favours for him in return or not. Surely, just because the President happens to know Mr Shabangu, does not mean that he would have gotten involved in such a tawdry matter? Our President surely has more important things to worry about – like creating 5 millions jobs and combatting corruption and maladministration.
But only the President – through his actions and his words — can demonstrate that this trust in him is not misplaced.BACK TO TOP