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.
My daily newspaper reports this morning that the investigation into how the NIA’s top secret ‘spy tapes’ got into the hands of President Jacob Zuma’s lawyer, Michael Hulley – which led to the (probably unlawful) scrapping of criminal charges against Zuma and ultimately to a change in government – has been completed.
The Inspector-General of Intelligence, Zolile Ngcakani, who has an ombud role and oversees all intelligence services in the country, confirmed that his office had finished its investigation, but said its findings could not be made public because “the report has not yet been released to the appropriate authorities”. He also revealed that the intercepting of phone conversations involving McCarthy had been conducted by the NIA “lawfully in terms of a judicial direction”.
If the South African Police Service and the National Prosecuting Authority (NPA) took seriously its job to uphold the law and to act without fear, favour or prejudice (in other words, if it adhered to the Rule of Law), it would be hard at work preparing for the prosecution of those responsible for breaking the law.
One or more members of the intelligence service or the SAP obviously broke the law by leaking the tapes to the Zuma camp. Hulley (or perhaps President Zuma, if he was shown to ever have been in possession of the tapes) also broke the law by receiving those tapes. This is because private citizens (which both Hulley and Zuma were at the time) are not allowed to possess such classified information.
Recordings by intelligence services of private conversations – even those made legally – are classified and it was clearly a criminal offense for Hulley to have been given the tapes and for him to have received it.
The investigation also established that the police were spying on McCarthy at the same time. “We have found that the crime intelligence division of the police intercepted the phone conversations of McCarthy as part of an unrelated investigation, and such interceptions were conducted lawfully in terms of a judicial direction,” Ngcakani said….
Ronnie Kasrils, who was the minister of intelligence at the time of the spy tapes saga, said he had no knowledge at the time that the NIA was tapping McCarthy and Ngcuka’s phones. Kasrils said that after the intelligence crisis of 2005/06, when former NIA head Billy Masetlha was found to have abused the intelligence powers by instigating unlawful surveillance and eavesdropping on politicians – and creating hoax e-mails – he had issued a directive to the NIA and to the minister of police that “any interception using the National Communications Centre facilities needs to be passed by me”. But the NIA and police apparently defied this ministerial directive. “The NIA were obliged to report this to me as minister. They never did. I knew nothing about it,” Kasrils said.
Ngcakani’s report should of course be sent to the Joint Standing Committee on Intelligence (JSCI ) in parliament, as this is the committee tasked with overseeing the intelligence services as one of the governments checks and balances against abuse by the intelligence services. The chair of the JSCI is Cecil Burgess, one of the more pugnacious and shady new members of the Judicial Services Commission and Burgess claimed yesterday that he was not aware that the inspector-general had completed the spy tape investigation.
Asked yesterday if he would call for the report, Burgess replied: “It depends on what the report contains. There are certain things we may not be entitled to see.” He correctly pointed out that it was a criminal offense for anyone to give transcripts of tapped phone conversations – even legally tapped one’s – to a member of the public or for a member of the public (which, as I have pointed out, both Hulley and Zuma were at the time) to receive such tapes.
One would assume that Burgess and the members of his committee will insist that the flagrant breach of the law by intelligence operatives and by Hulley (and perhaps others in the Zuma camp) will be thoroughly investigated and that the cuplrits will be prosecuted. They obviously must also be deeply concerned about the possible breaches of national security (remember Vusi Pikoli was fired for not taking national security into consideration when he issued a warrant for the arrest of Jackie Selebi).
They would also, surely, be concerned about the fact that the police and the intelligence services lied to the Minister and would want to establish on which grounds the police and intelligence services obtained a warrant to tap the phones of a member of the NPA (who happened to have been investigating the Police Commissioner at the time).
The law society should surely also be deeply concerned that Hulley criminally obtained classified information which he then used to the advantage of his client? We know that professional bodies do not always act vigorously against their own members. Who will forget how the Medical Association of South Africa for many years avoided taking action against the doctors who saw Steve Biko just before his death? But surely the law society – as keen supporters of the Rule of Law – will surely not let Hulley off the hook merely because he happens to be the President’s lawyer? That would be rather self-serving and, well, dishonest.
Of course, chances are slim that anyone will ever be held responsible for the criminal activity which formed the basis for the dropping of the fraud and corruption charges against our President. This is because in our post-Polokwane world, like in George Orwell’s Animal Farm, some animals are seen as being more equal than others. (And I am not even talking about Julius Malema who believes that “Arrive Alive” and speed limits are stuff that concerns only mere mortals – not VIP’s like himself.)
What surprises me is that us mere mortals, who can actually remember who we are and do not always have to ask everyone “do you know who I am” (because I have forgotten my own name), just sit quietly by while those who style themselves as VIP’s lord it over us. Don’t we have any self-respect? When will we rise up and tell those who act is if they are above the law (because they believe they are) that the law applies to them equally?BACK TO TOP