Quote of the week

As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.

Khampepe J
Zuma v Secretary of the Judicial Commission of Inquiry into Allegations of State Capture, Corruption and Fraud in the Public Sector Including Organs of State and Others (CCT 52/21) [2021] ZACC 28 (17 September 2021)
23 September 2020

Toshan Panday and the many ways implicated people evade accountability

Last week the KwaZulu-Natal High Court dealt another blow to Toshan Panday’s attempts to avoid prosecution for corruption. It is alleged that Panday is a friend and benefactor of former President Jacob Zuma, and that he had therefore been “untouchable” while Zuma was President. The history of Mr Panday case as related in the judgment (he has evaded prosecution for the past 10 years) serves as a stark reminder that there are many obstacles to the “law taking its course” in such matters. It also highlights the fact that the further weakening of the Hawks and the NPA during the Zuma years has been of immense benefit  to those implicated in corruption.

Judging from the publicly available information about Toshan Panday’s various brushes with the law, he is not the kind of person you would want to buy a second-hand car from. Not only is Mr Panday being accused of “working with” Colonel Navin Madhoe and Captain Ashwin Narainpershad to defraud the SAPS by hugely inflating the prices of accommodation for SAPS members during the Fifa World Cup in 2010 (Mr Panday allegedly transferred large sums of money to the two SAPS Colonel’s to ensure their assistance), it is further alleged that while the police investigation was in progress, the investigating officer was instructed by the KZN SAPS Provincial Commissioner, Lieutenant General Ngobeni, to abandon the investigation. The then head of the Hawks, Anwa Dramat, overrode this instruction, but Dramat was removed from his post shortly afterwards.

Once the investigation was completed, the then KwaZulu-Natal Director of Public Prosecutions, Moipone Noko declined to prosecute, despite the substantial evidence supporting prosecution. She claimed that “there was no evidence to prosecute any person with any offence”. The court held that this claim “beggars belief”.

Noko also declined to prosecute Colonel Madhoe, who allegedly attempted to bribe the investigating officer on behalf of Mr Panday to make the case go away. Despite the fact that an undercover operation was launched, which resulted in Colonel Madhoe handing cash of R1.43 million to the investigating officer as an intended bribe. Ms Noko again declined to prosecute. These decisions have now all been reviewed and set aside, yet as far as I can ascertain Colonel Madhoe has not yet been charged. Ms Noko was moved to the North West, but she has not been removed from office, despite the scathing court judgments excoriating the irrationality of her decisions.

Mr Panday challenged the legality of the decision to review and set aside the decision to drop the charges against him. The court rejected this challenge, opening the door for his prosecution – 10 years after the alleged fraud occurred. Whether the NPA has the political will, resources and the skills successfully to prosecute Mr Panday is unclear. The manner in which the NPA had previously acted in this matter does not instil confidence that Mr Panday will eventually get his day in court.

Mr Panday’s ability to avoid prosecution for all these years – seemingly with considerable assistance from elements in the SAPS and the NPA – illustrates what is at stake in the internal ANC debate about whether the party should take action against party leaders and public representatives only after they have been charged or convicted of a criminal offence. If only charged or convicted individuals are to face consequences for bringing the party into disrepute, it would protect many tainted individuals for many years to come. This is one of many ways in which those implicated in wrongdoing fight back against accountability. It is as if politicians and politically connected individuals have a script they all follow as soon as credible evidence emerge that they might be caught up in corruption. As the script is likely to be followed many more times, let me provide some highlights.

It usually starts with a claim that the alleged wrongdoer is unaware of the allegations, have not been given an opportunity to respond to the allegations, or have been the victim of egregious (but often invented) procedural breaches of their rights.

This is usually followed by the claim that allegations of wrongdoing originate from political opponents (or other, always unnamed, “dark forces”) aiming to tarnish their good name. Shortly afterwards, it may be pointed out that the alleged wrongdoer has not been charged, followed by further expressions of innocence and a call that the law should take its course (knowing that it seldom does). Not having been charged, so the argument goes, means that the credible evidence of wrongdoing does not in fact exist at all, and that we all have a duty to pretend accordingly.

In the unlikely event that a person is in fact charged with a criminal offence, it will be argued (falsely as it turns out) that every accused has the right to be presumed innocent by the public until convicted of a crime (the actual right pertains to being presumed innocent by the presiding officer in your criminal trial). If the accused is a political office bearer or elected representative, it will further be argued (without any basis in law) that the person cannot be removed from office and cannot be evicted from their party until they are convicted, as he or she has a right to be a Minister, MP or councillor or a member of a political party. (While membership of a political party can only be revoked after following the prescribed procedure according to the party constitution, the decision to fire someone as a Minister, MEC or Mayco member is a political decision.)

It may be shortly after this that the accused and his or her factional defenders start to rail against various real and imagined abuses by the prosecution, and launches (usually futile) court action to try and stop the prosecution in its tracks. It may also be round about this time that some politicians will accuse the President of having orchestrated the prosecution for political gain, forgetting that they had previously accused the President of not arresting and prosecuting politically connected individuals. (If there is one thing I have learnt by following South African politics, it is that the thugs and criminals masquerading as “sons of the soil” or “men of the people” – not a woman ever in sight – is allergic to principle or being consistent in the positions they take.)

At the first court hearing, the accused and his or her followers may hint that they are the victim of a vast conspiracy by dark forces, and promise that all will be revealed at the appropriate time. (The appropriate time never arrives, but the threat may be repeated several times at various postponement hearings and other court appearances, as the media is likely to report this claim in breathless fashion, and as the more gullible and blindly loyal among us may well believe this patently absurd claim.)

Years will pass while the case drags on, partly because of the incompetence and lack of resources of the prosecution, and partly because of the skilful and even unethical exploitation of the legal system by the accused and his or her handsomely paid but slightly dodgy legal representatives.

In the event more unlikely event of the accused actually being convicted of the crime he or she was charged with, all the defences deployed earlier will become unavailable. This is usually when the attacks on the presiding officer and the legal system will commence, not to advocate for the desperately needed overhaul of the deeply flawed criminal justice system, but rather to indulge in some whataboutery. This whataboutery may consist of the suggestion that it is unfair to convict a politician who is part of your factions, without convicting every single other person who has also been involved in criminal activity.

More effective is the argument that the system itself is unjust, usually by pointing to specific cases of injustice within the system. This can be an effective argument because the system does produce unjust results – especially for poor (and thus unrepresented or badly represented) individuals. However, the fact that the convicted criminal being defended in this manner may have been able to pay for the most expensive lawyers available in South Africa, and was therefore almost certainly treated far better and much more fairly than the average criminal defendant, remains an inconvenient obstacle to the effectiveness of this latter argument.

The astute observer will of course be aware that many of the people who wish to excuse the criminal actions of the convicted politician in this way had never bothered to complain about the injustices within the criminal justice system when a non-politician or non-connected individual (say, a  Nigerian immigrant or an unemployed youth) was the victim of actual injustice. Such an observer will also recall that the convicted politician and his or her supporters had previously cheered on their colleague who told the police to  “shoot to kill the bastards”, by which they meant the police should shoot and kill “real criminals” (“innocent until proven guilty” now long forgotten), “real criminals” being criminal accused individuals who have little political, social or economic status – unlike anyone aligned to their political faction.

In the one in a million cases where a politician serves jail time, the politician will be painted as a martyr of the system, but none of those who attack the system will think of using their power (often as members of government) to do anything to improve the criminal justice system to serve ordinary people who do not have access to the kinds of resources available to politicians and their allies.

So, the next time that former President Jacob Zuma or any other governing party leader, rail against the unfairness of the criminal justice system (and it is not in dispute that the system tend to favour the wealthy and the politically connected), the first question one should ask that person, is how he or she has used their power as the president, cabinet minister, MP, or as a leader of the governing party, to address the shortcomings in the system.  If they had not, this would suggest that their gripe is not with how the system treats ordinary people caught up in its web, but that they believe they are not getting the special treatment they deserve because they are politically connected or wealthy.

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