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.
Be afraid. Be very afraid.
On Friday President Jacob Zuma’s appointed Moe Shaik as the head of the South African Secret Service (SASS). It would, of course, be unfair to judge Shaik on the basis that one of his brothers is a convicted crook who escaped a long jail sentence by the unlawful granting of medical parole, and that another brother plagiarised his doctoral thesis and fled the country to escape prosecution for his part in arms deal corruption. One cannot be judged merely on the basis of what one’s family members have done. (Although Ronald Kevin Roberts and others like him often does exactly that by imputing guilt to some white politicians because of what their parents or grandparents did.)
There are other reasons to be worried about the appointment of Shaik. Most pertinently, it is unclear whether this appointment is in line with the requirements of the Constitution. Section 199(5) of the Constitution states that “[t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law, including customary international law and international agreements binding on the Republic”. Moreover section 199(7) states:
Neither the security services, nor any of their members, may, in the performance of their functions-
(a) prejudice a political party interest that is legitimate in terms of the Constitution; or
(b) further, in a partisan manner, any interest of a political party.
Of course, Shaik served in the international underground structures of the ANC in Natal where he worked closely with President Zuma. I would contend that – given our history – the mere fact that an individual was active in the ANC underground should not disqualify that person from appointment to a sensitive post such as that of the head of SASS. To hold otherwise would be to automatically disqualify for appointment many competent and honourable men and women who took part in the struggle against apartheid. That would surely be untenable.
The problem with Shaik is that after the end of apartheid, he has acted in a manner that has demonstrated a lack of wisdom, independence and integrity – all traits required for a spy chief. Shaik was a main actor in attempts to discredit the then National Director of Public Prosecutions (NDDP), Bulelani Ngcuka, in order to try and derail the state’s case against then Mr Jacob Zuma. Shaik was instrumental in airing the allegations that Ngcuka was an apartheid spy. It is clear that he peddled these rumours because of his undying, uncritical – even blind – loyalty to one man: President Jacob Zuma.
The Hefer Commission of Inquiry established that the allegations leveled against Ngcuka by Shaik were “ill-conceived and entirely unsubstantiated”. Shaik based his allegations on an (alleged) 1989 ANC investigation which Judge Hefer found were “utterly unreliable” and was:
fatally flawed by unwarranted assumptions and unjustifiable inferences and by the blatant failure to examine available avenues of inquiry…. Mr Moe Shaik revealed in his evidence that, after many years, his interest in Mr Ngcuka was rekindled when he came to know of the investigation against Mr Zuma. His renewed interest, he says, stemmed from his complete faith in and undying loyalty to the latter. For this reason he reexamined the information about the 1989 investigation, proceeded to make further inquiries and eventually confided in Ms Munusamy in order to make the public aware of the 1989 investigation and findings.
So, the Hefer Commission found that Shaik had a blind loyalty to Zuma, that he was prepared to peddle untested and spurious allegations of a very grave nature that could easily have destroyed Ngcuka in order to protect his friend, Jacob Zuma. The same guys who kept on reminding us that anyone in South Africa had to be presumed innocent until proven guilty were now prepared to try and destroy someone in order to protect their “boss” by getting us all to presume Ngcuka guilty until proven innocent.
These actions came close to constituting a criminal offense, as the National Prosecuting Authority Act prohibits anyone from “improperly interfering with, hinder or obstruct the prosecuting authority or any member thereof in the exercise, carrying out or performance of its, his or her powers, duties and functions”.
But even if it was not a criminal offense, Shaik’s actions should have disqualified him from appointment because it demonstrates that he does not possess the attributes required of him by the Constitution. Shaik demonstrated that because of his blind loyalty to the President he would, indeed, be prepared to use (or perhaps – who knows – abuse) his power as spy chief to “prejudice a political party interest that is legitimate in terms of the Constitution; or further, in a partisan manner, any interest of a political party”.
Then President Thabo Mbeki was often accused – not without reason – of using state institutions to advance his political interests. The appointment of Shaik to such a sensitive post gives the clearest indication yet that President Zuma and his supporters complained about President Mbeki not because he used state institutions, but because he used it against them. Now that they are in charge, it is their turn to get their greasy hands on the levers of state powers.
Who knows where this will lead? How long before individuals are investigated by the intelligence services for hatching plots against Zuma? How long before Zuma’s trusted securocrats issue statements about dark forces out to undermine the government? Then we will be back where we started with Mbeki and the Polokwane revolution would have been an empty victory, replacing one group prepared to use the state machinery to advance its own agenda, with another.
Be afraid. Be very afraid.BACK TO TOP