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.
I am constantly reminded of the obvious fact that we live in a strange world inhabited by many wonderfully gullible people. I mean, some people actually believed Tony Bliar when he claimed Saddam Hussein was going to bomb the bejeezus out of Britain, while others believe that Julius Malema is a champion of the poor who just happens to be able to afford a R250 000 watch on his R40 000 a month salary and do not believe that he is a greedy tenderpreneur masquerading as a champion of the poor .
I would therefore be the last person to jump the gun by claiming that there is no one who would believe claims by the Police that they are not targeting Public Protector Thuli Madonsela in order to protect their boss, Police Commissioner Bheki Cele. (Such claims by the Police are yet to be made, but surely highly likely to follow in the media spin war that has now been unleashed by a story in The Star that Public Protector Thuli Madonsela – pictured – is about to be arrested by the Police.)
Who knows, the whole story might be false and Madonsela might not have been investigated by the Police at all. In a life and death war for tenders and political power, truth is usually the first casualty and the media is often used to send strategic disinformation into the world to discredit or intimidate an opponent. Police might have leaked a false story to the media in order to discredit and intimidate the Public Protector. But, if this story is true, it will say much about the state of our Police Service and about the honesty of our top cop.
Maybe there is someone somewhere in the world who would believe that the Police “were only doing their job” when allegedly investigating Public Protector, Thuli Madonsela, for fraud and corruption. Perhaps someone living in a rainforest in Sumatra; or one of Father Christmas’s little helpers living at the North Pole; or (there is no accounting for the heights of gullibility that some otherwise perfectly intelligent human beings are capable of) someone who believes convicted fraudster Schabir Shaik is an honest businessman who was framed by apartheid agents, will believe that there is no link between the Public Protector’s damning report of the Police Commissioner and this alleged investigation or the claim that such an investigation is underway (whether true or false).
Such a real or fictitious person (of whom a few might or might not be close to President Jacob Zuma) might well believe that the Police just happened to come across information suggesting that the Public Protector is corrupt, that it was just a co-incidence that the Minister of Justice was tasked by the cabinet to deal with the fallout from the Public Protector’s report (and also dealt with the original query about Madonsela’s company), and that the Police are treating this case like they would treat any other case of alleged corruption against senior officials who may or may not be members of the ANC and may or may not be friends of President Jacob Zuma.
Such a real or fictitious person may also believe claims – emanating from secret leaks, on the record briefings and off the record briefings – that Police Commissioner Bheki Cele had been reluctant to pursue this investigation against the Public Protector, that “rogue elements” within the Police investigated this case on their own and that the investigation had absolutely nothing to do with the fact that Madonsela has already condemned the dodgy deal between businessman Roux Shabangu and the Police and has found that the Police Commissioner was guilty of maladministration and unlawful behaviour because of his actions relating to these Shabangu leases.
A few more people might well believe that this has absolutely nothing to do with speculation (which may be true or false) that Roux Shabangu – who first claimed that he was a good friend of President Zuma before he claimed that he was not a friend of Zuma at all – has donated money to the governing party, to the President or to those close to the President.
Few of us won’t jump to conclusions by assuming that Madonsela has been targeted by the Police in order to protect Police Commissioner Bheki Cele – who has been exposed as a rather questionable character by the first Public Protector’s report into the Shabangu lease scandal – and to discredit Madonsela in an attempt to intimidate her into not doing her job as diligently and as properly as she is legally and constitutionally required to do.
Those of us who jump to conclusions may, of course, be wrong. But I will not bet on it.
Now, it is far too early to tell whether Madonsela broke the law or not. It might be that Madonsela – like thousands of civil servants, many police officers and quite a few politicians – have been on the take and that the Police have gathered sufficient evidence that will prove beyond reasonable doubt that Madonsela is guilty of fraud and corruption. Of course, if she is ever convicted it would be something of a miracle – given the fact that so few cases of corruption are ever investigated properly and ever lead to a successful conviction.
According to newspaper reports, Madonsela allegedly received money for work done for the Ministry of Justice by a company she owns while she was a Commissioner at the Law Reform Commission. The work allegedly related to the transformation of the judiciary, gender mainstreaming and the legal service charter. According to news reports the imminent arrest will be based on allegations that Madonsela contravened section 17 of the Prevention and Combating of Corrupt Activities Act 12 of 2004. At the time Madonsela worked at the Law Reform Commission, the Department of Justice (headed now by Jeff Radebe) looked into this arrangement, but the matter was never pursued – until Madonsela took on the Police Chief.
What a co-incidence, the gullible might exclaim.
Section 17 of the Act states that a public officer who – subject to certain exceptions – “acquires or holds a private interest in any contract, agreement or investment emanating from or connected with the public body in which he or she is employed or is made on account of that public body, is guilty of an offence”. No crime is committed if:
It is therefore clear that Madonsela would only ever be found guilty of corruption if her company did work for the Law Reform Commission or did work emanating from the Law Reform Commission and if her conditions of employment explicitly prohibited her from having an interest in a company that did work for the Law Reform Commission. One never knows what might have happened, but given what we know about the history of this matter and the political background against which this story was published, I would be quite surprised if she is ever convicted of any crime.
It would be strange indeed if her company had done work for the Law Reform Commission, this was prohibited by her conditions of employment, but yet the Department of Justice had done nothing about it. If Madonsela is guilty of corruption then officials in the Department of Justice and maybe the Minister himself must be guilty of concealing corruption. If Madonsela’s claim is true that the Department of Justice and Treasury were both aware of her business interests and that there was full disclosure throughout, then a conviction seems even more unlikely as it would implicate the Ministers of Justice and Finance as well.
This matter can of course easily be cleared up by colleagues at the Law Reform Commission and by the Minister of Justice, who would be able to say whether Madonsela’s company ever did work for the Law Reform Commission and if it did, whether she had express or tacit permission for this. I am sure that as someone who respects the Constitution and honours the office of the Public Protector, the Minister of Justice is rushing to issue a statement to clarify this matter as I type this. Failure promptly to issue such a statement might well lead those of us who are not gullible to suspect that the Minister is in cahoots with the Police and is trying to intimidate and discredit the Public Protector.BACK TO TOP