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.
A good politician knows how to deny something without telling an outright lie. If he or she is then caught out, the politician can claim that he or she never told a lie, but may inadvertently have given the wrong impression when denying certain facts. Sometimes for political reasons the situation may be so grave that it would require an outright lie (“I did not have sexual relations with that woman, Ms Lewinsky”). In others words, the politician may believe that he or she has no option but to lie in order to deal with a difficult political or personal problem. When caught out, that politician can then get into terrible difficulties, as did then President Bill Clinton who was ultimately impeached after lying about his sexual relations with Ms Lewinsky. (After impeachment, Clinton was acquitted by the Senate.)
Which brings us to the subject of this post, Police Minister Nathi Mthethwa, and his alleged abuse of a crime intelligence slush fund to fund a R200 000 security wall around his private property. Last week City Press alleged that almost R200 000 from the slush fund was used for renovations to Mthethwa’s house in KwaMbonambi, northern KwaZulu-Natal. City Press pointed out that these payments were illegal as the secret fund can only be utilised to finance secret covert crime intelligence operations. Security renovations at the homes of Cabinet ministers are done by the department of public works and have to be declared to Parliament.
But the problem for Mthetwa was more acute than the allegations of the unlawful use of a slush fund. The problem is that the slush fund is controlled by General Richard Mdluli, the head of crime intelligence, who was facing charges of murder, fraud and corruption. Hawks spokesman McIntosh Polela astonishingly conceded last week that acting police commissioner Lieutenant-General Nhlanhla Mkhwanazi had, on the orders of Mthethwa, instructed the Hawks to halt all investigations involving the crime intelligence department. If this is all true, then it would mean that Mthethwa had ordered an end to a criminal investigation which might well have implicated him.
In any event, the Minister is not legally entitled to instruct the Hawks to halt any investigation. It is true that section 17I(2) of the now unconstitutionally declared section of the Police Service Act states that a Ministerial Committee may determine: (a) policy guidelines in respect of the functioning of the Directorate; (b) policy guidelines for the selection of national priority offences by the Head of the Directorate; (c) policy guidelines for the referral to the Directorate by the National Commissioner of any offence or category of offences for investigation by the Directorate; (d) procedures to coordinate the activities of the Directorate and other relevant Government departments or institutions. The Ministerial Committee is authorised to “oversee the functioning of the Directorate”.
This means, first, that the Minister cannot issue any instructions to halt an investigation. Second, that if meddling were to take place, it had to be done not by the MInister but by the Ministerial Committee in the form of “policy guidelines”. If Minister Mthethwa did indeed give the instruction as claimed by Polela, this was therefore not legal.
If the Ministerial Committee issued policy guidelines aimed at halting the investigation, it would demonstrate the correctness of the Glenister judgment. The current situation also seems to illustrate better than any abstract or academic exercise why the current draft legislation purporting to give effect to the Glennister judgment to create an independent corruption fighting unit, does not in fact comply with that judgment.
The draft legislation allows the very Minister who is alleged to have instructed that the investigation implicating him in corruption should be stoppped to oversee the new corruption fighting unit. A newly proposed insertion of section 17DA provides wide discretion for the Minister to suspend and ultimately to remove the Head of the Directorate from office. In terms of the proposed amendment, the Minister is empowered in terms of section 17DA(2)(a) provisionally to suspend the Head of the Directorate, pending an “enquiry into his or her fitness to hold office as the Minister deems fit” and may then remove him or her from office for misconduct; on account of ill-health; on account of incapacity to carry out his or her duties of office efficiently; or on account thereof that he or she is no longer a fit and proper person to hold the office concerned.
This means if the Minister had given an unlawful instruction to stop an investigation into corruption in which he is allegedly involved, and the head of the Hawks had refused to obey this, in terms of the draft legislation the Minister would have been able to suspend the head of the Hawks without any pay and ultimately to have the head of the Hawks fired on the vague ground that he was inefficient.
That is why the Glenister judgment insisted that any corruption fighting unit had to be free from political influence and interference (something clearly not the case at present) so that it can do its job effectively, on the one hand, while remaining financially and politically accountable, on the other hand. As the judgment emphasised, it was essential for the body to be sufficiently independent so as to enable the anti-corruption agency to function effectively without being exposed to undue political influence.
Legal mechanisms must be established that limit the possibility of abuse of the chain of command and that will protect the agency against interference in operational decisions about starting, continuing and ending criminal investigations and prosecutions involving corruption. An effective corruption-fighting unit thus needed to meet two basic interrelated requirements. It needed to be both structurally and operationally independent — in accordance with the fundamental principles of the South African legal system and in line with South Africa’s international law obligations — to enable it to carry out its functions effectively and free from any undue political influence or undue intervention.
If anything illustrates the wisdom of this finding, it is the facts surrounding the implication of the political boss of the Hawks in corruption and the attempted cover up of the corruption by allegedly ordering a halt to the investigation.
I would guess that this is why, when confronted by these allegations last week, Mthethwa asserted: “The minister wishes to put on record that neither his house in KwaZulu-Natal nor those of his immediate relatives were built, refurbished and paid for with any source of public funds or taxpayers’ coffers.” Tellingly, so it seems to me, the denial seemed forthright and categorical, yet it did not state that funds were not used for the security upgrade involving the building of a security wall, leaving open a tiny gap for the Minister to wiggle through if caught out in a lie.
City Press reported this week that City Press it has in its possession the following hard evidence proving that the MInister had misled the public:
» The risk assessment that was done at Mthethwa’s property by Brigadier T Tshika of the counterintelligence division on Mdluli’s instruction in June 2010;
» A secret services account claim form, dated September 14 2010, on which a Lieutenant Colonel DG Naidoo requested R70 738.60 “to carry out security upgrades at the minister’s official residence”. The claim was approved by then chief financial officer of crime intelligence Major General Solly Lazarus;
» A second secret services account claim form, dated December 13 2010, on which Naidoo requested R57 146.30 “to purchase building material and hardware . . . to carry out security upgrades at the minister’s official residence”, which was approved
» A third secret services account claim form, dated January 31 2011, on which Naidoo requested R67 696.55 “to purchase building materials and hardware . . . to carry out security upgrades at the residence of the minister of police”, approved by Lazarus.
This is rather damning of the MInister, who appears to have misled the public with his denial. But what happens now? Obviously, if it turns out that the Minister did lie about the slush fund and then did order the suspension of the investigation into his alleged involvement in corruption, he needs to be fired. Meanwhile the Public Protector may well be able to investigate the Minister for breaches of the Executive Members Ethics Act, read with the Ethics Code.
In terms of section 2.1 of this Code, Members of the Executive must to the satisfaction of the President or the Premier, as the case may be: (a) perform their duties and exercise their powers diligently and honestly; (b) fulfil all the obligations imposed upon them by the Constitution and law; and (c) act in good faith and in the best interest of good governance; and (d) act in all respects in a manner that is consistent with the integrity of their office or the government.
Section 2.3 of the Code states that Members of the Executive may not, amongst others, (c) act in a way that is inconsistent with their position; (d) use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person; (f) expose themselves to any situation involving the risk of a conflict between their official responsibilities and their private interests.
If the allegations are true that the Minister had relied on the crime intelligence slush fund to build a wall around his private home and had then misled the public about it, he would be in clear breach of these provisions. In terms of the ACT, the Public Protector is empowered to investigate breaches of the Code on the receipt of a complaint. The President is then supposed to act on the complaint. If the Public Protector finds the Minister guilty, the President would be expected to fire the Minister as happened with the Minister of Public Works, but in this case this is less likely to happen because the Minister is a political ally of the President and the elective conference is only a few months away.
But President Zuma may be put in a very tight spot. After all, if, after a guilty finding, the President fails to act, this will further cement the public perception that President Zuma is more intent on securing his own future than in dealing with corruption and maladministration. This may, ironically, be used by President Zuma’s political opponents to question his probity and to diminish his standing before the elective conference in December. Whether he will then fire the Minister or not may well depend on whether the Minister was privy to any incriminating knowledge regarding the President himself.
BACK TO TOP