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.
The report by the Public Protector into the attempted leasing of a building by the Police in Durban from Mr Roux Shabangu’s company (the guy who first claimed that he was good friends with President Jacob Zuma before inexplicably claiming that he was not good friends with Zuma), leaves one big question unanswered.
That question is: why?
Why would the Police, who only a few months earlier had indicated that they wanted to have a new building built to house the KwaZulu/Natal headquarters of the Police, now rush to conclude an unlawful lease with Mr Shabangu’s company at tripple the market value? Why would the Police Management ignore the warning by SAPS KZN Head: Property Management, Colonel AT Ngema, not to enage directly with Mr Shabangu? Why would they ignore Ngema’s second warning, which reads in part:
I would like to advise the management to refrain from engaging with the prospective landlords i.e. 477 Smith Street as this will jeopardise the tender processes, create false hope or give unfair advantage to them. I would like to end by committing my support to my management with whatever decisions they take but also ensuring that they are protected from the bad publicity and unnecessary media attention which might be raised by matters like this.
Why – according to documentation reproduced in the Public Protector’s report – did the National Police Commissioner first instruct his underlings not to renew any leases without his approval and then indicate that he had identified the Roux Shabangu Building for leasing? Why did the Police Commissioner deny this – despite the documentary and other evidence which confirmed this fact?
Why was Commissioner Cele so upset when an official in the Public Works Department correctly pointed out that the Police were acting in an unlawful manner by directly negotiating with Mr Shabangu and why was she then removed from her post? Why does the Police Commissioner now maintain that he knew almost nothing about the leases and that he signed documents that were placed before him on advice of others? Is he merely incompetent and reckless about the spending of public funds or is he not being entirely truthful?
Why was Minister Geoff Doidge removed from his position by President Jacob Zuma after he and the Director General launched an investigation into procurement activities of the Department and after he had instructed that the two leases relating to Mr Shabangu be suspended? Why was the new Minister Gwen Mahlangu-Nkabinde so anxious that the leases proceed?
She even obtained a two paragraph “opinion” from the State Law Advisor to contradict the real opinions of several senior advocates in order to ensure that the leases are concluded. Was the reason for this that, as Mr Shabangu reportedly claimed, she was like Mr Shabangu’s “elder sister”? Is it true that Mr Shabangu stormed into the Director General’s Office and threatened him and if so, why did the Minister not do anything about this?
Why did Minister Mahlangu-Nkabinde not co-operate fully with the Public Protector and why did she refuse to answer some of the questions pertaining to these leases put to her by the Public Protector? What did she have to hide and was she hiding something on someone else’s behalf? Why did the Minister meet with Mr Shabangu on several occassions and why did they have frequent contact on the phone? Given the fact that her predecessor was fired, was she not afraid that President Zuma would fire her and if not, why would she believe that the President would protect her?
The Public Protector’s report found that the Police Commissioner and the Minister had acted unlawfully and were guilty of maladministration. But because the “why” question had not been answered, it found that it could not say for certain that any criminal activity took place. Once we know why this all happened, we would also know whether anyone should be prosecuted for corruption.
The behaviour of the various role players is very difficult to explain in the absence of corruption of some sort. No one has been able to explain why the rules were broken so flagrantly and with such vehemence. If there were no inappropriate relationship between Mr Shabangu and some role players (the Commissioner, the Minister, the President or the ANC), the whole saga makes no sense whatsoever.
Such an inappropriate relationship could have come about because of payment of money, the provision of other favours or because of another kind of inappropriate personal relationship between any number of the parties. At this point we therefore do not know whether Mr Shabangu corrupted anyone and if he did, who was corrupted. Usually, the Police would be able to follow up on such serious questions by investigating the links between the parties and where prima facie evidence of corruption is procured by getting search warrants to search the relevant premises associated with the relevant role players (Mr Shabangu, Mr Cele, Ms Mahlangu-Nkabinde, Mr Zuma, the ANC) in order to determine whether money had changed hands.
But as the Police themselves are implicated in this scandal, this will not happen. As the Constitutional Court found in the Glennister case, the Hawks, who reports directly to the Police Commissioner, is not independent enough to conduct such an investigation. In the absence of the Scorpions or a similarly independent body, no proper criminal investigation will be conducted. The situation which has now arisen therefore vindicates the majority judgment in the Glennister case and underlines, again, the urgent need for the creation of a truly independent corruption fighting unit.
But when such a unit is finally set up, it will probably be too late to investigate the allegations of corruption linked to the Police leasing scandal. And who knows how many billions of Rand would have been lost to other forms of corruption by the time this happens?BACK TO TOP