PAUL HOFFMAN: Good chance of success for DA review of Zuma decision

The corridor chatter in places legal is that the DA’s review of the NPA’s decision not to proceed with the prosecution of President Jacob Zuma should be successful.

THE "good guys" in the National Prosecuting Authority (NPA), and there are many of them, must be kicking themselves today because they did not charge Jacob Zuma and Schabir Shaik together in the same case. The latter was sentenced to 15 years for corrupting the former, who is now the president of SA. The benefit of hindsight, that 20/20 vision it invariably imparts, is not always so beneficial, as the contrasting fates of Zuma and Shaik show.

In the latest twist in the saga of the cases of these two senior African National Congress (ANC) members, the Democratic Alliance (DA), which launched a review of the NPA’s decision not to proceed with the prosecution of Zuma in 2009, has instructed its attorneys to institute contempt of court proceedings against the NPA. This unique step has been taken because it has failed to comply with the March 20 order of the Supreme Court of Appeal that it deliver, within 14 days, the record of all the documents, recordings, materials and evidence that were before it when it considered, and made, the fateful decision not to proceed with the 783 charges of corruption Zuma was facing in the run-up to the last general election in May 2009.

It needs to be borne in mind that when the acting national director of public prosecutions, Mokotedi Mpshe, announced the decision, he made it clear that the NPA was convinced it had a good case on the merits of the charges against Zuma.

In other words, the NPA was bullish about its prospects of proving beyond any reasonable doubt that Zuma was corrupt.

The reason proffered for withdrawing the charges was that political interference in the process had so tainted the case that it would not be possible to give Zuma a fair trial.

Unfortunately, the evidence upon which this conclusion was based is far from relevant or convincing. The controversial conversation between former colleagues Bulelani Ngcuka and Leonard M cCarthy, neither of whom had any say in the matter of the pressing and timing of charges, is best characterised as idle and irrelevant gossiping, not as a train smash for the proper administration of criminal justice.

The person who made the decisions, Mpshe himself, was not aware of the content of the clandestinely taped conversation at any material time, so how it could have influenced or interfered with his decision-making processes remains a mystery and gives the DA good grounds for taking him on review, as it has done.

The small matter of how the tape recording relied upon by Mpshe came to be in the possession of the attorney acting for then private citizen Zuma, when there is no legal way in which this can happen, is also a matter that will cast doubt upon the propriety of the decision to withdraw the charges that Zuma was facing. And then, to complete the potted prehistory of the current issue, there is the embarrassing detail that the Hong Kong legal precedent that the NPA dug up to justify its otherwise mystifying decision was overturned on appeal before Mpshe relied on it. In short, the DA’s review has good prospects of success, if its merits can ever be reached by overcoming the delaying and point-taking tactics of the respondents in the matter.

If this occurs before Mangaung hosts the ANC’s elective national conference in December, then the cat will truly be among the pigeons. Whether the DA would prefer a second Zuma presidential term or not, the old legal axiom applies: justice delayed is justice denied. Retired chief justice Pius Langa had occasion to admonish Zuma’s legal team to desist from endless preliminary technical point-taking in earlier litigation; but the habit of the Stalingrad strategy seems to die hard.

In the DA’s press release announcing the decision to deal with the NPA’s disregard for the court order, certainly a lamentable state of affairs, a few rhetorical questions are raised in an attempt to breathe outrage into the wholly predictable. Usually, rhetorical questions have obvious answers, but this is not necessarily so in this instance. Seriatim:

"Is the failure to produce the record an indication that there is no record to produce?" This is hardly likely. The phalanx of exhausted and miserable-looking senior staff who flanked Mpshe as he made the announcement on national TV could not have been doing sweet nothing in the process of compiling the announcement. The fact that the announcement itself included mention of the strength of the merits of the case, in the view of the NPA, is an indication that there were conflicting views behind the looks of disappointed disbelief on the faces in the background. It is likely that a flurry of memorandums and e-mails preceded the announcement. Finding the Hong Kong case took effort. The NPA’s problem today is that these documents most likely point up the flaws in the decision made, hence the tardiness, possibly aimed at kicking the case into touch until the post-Mangaung period.

"Is it possible that there was no rational basis on which this crucial decision was taken?" Here the DA is closer to the mark. The taped conversation upon which the decision hinged seems to be legally irrelevant and practically of no real consequence. Its provenance is highly questionable; courts do not have regard to illegally acquired evidence and neither should the NPA.

"Was the decision taken on political grounds?" This is hyperbole. The grounds for the decision were announced at the time, they were couched in legal, not political, terms and the decision has to stand or fall on the cogency of the legal reasons given, irrespective of the background hum from highly placed cadres of the ANC, both within and outside the NPA, who were all undoubtedly putting political pressure on the hapless and vulnerable Mpshe.

"Is the NPA party to placing someone above the law just because he holds high political office?" It is not clear whether this last DA question refers to the alleged contempt of court now, or the original decision back in 2009. Section nine of the bill of rights guarantees equality before the law to all. The NPA is bound to respect and protect this. It is also supposed to act independently and "without fear, favour or prejudice".

Zuma was a private citizen when the prosecution was stopped. He was also leader of the ANC, a party that is openly and unashamedly striving for hegemonic control of all the levers of power in society. Zuma deployed Menzi Simelane (not Mpshe, who went after Jackie Selebi despite political interference in that, ultimately successful, prosecution process) as his new national director of public prosecutions. At the time, this was described as an "insurance policy" against the risk of the DA succeeding in the review, the completion of which is now being thwarted by foot-dragging and obfuscation. As the whole game plan of the ANC is to put party above state, or at least so commingle them as to render the two indistinguishable, the answer must unfortunately be a disgraceful "yes" on the aspects back then of the ambiguous question, as well as those now.

As the courts have sent Simelane packing by resoundingly upholding the rule of law, the corridor chatter in places legal is that the DA’s review should be successful. This involves the reinstatement of the 783 corruption charges. Should this happen, it remains to be seen whether Zuma will follow Humphrey Mmemezi, a former Gauteng MEC and art lover, into resignation in accordance with the new guidelines for comrades under a corruption cloud.

• Hoffman SC is with the Institute for Accountability in Southern Africa

Source: Business Day

Politics & scandal: From 'sit down' to 'step aside'

While disgraced officials may resign, firing them is tricky. SA's parties are trying to come up with ways to deal with those who try to brazen it out. When Humphrey Mmemezi, found guilty of contravening the provincial legislature’s code of conduct and ethics,  resigned from his position as Gauteng housing minister last week, it came as something of a surprise. 

Although members of the public frequently call for politicians accused of wrongdoing to resign from Parliament or the provincial legislature, they rarely do, and are just as rarely sacked. Mmemezi allegedly stepped down as minister to avoid causing further embarrassment to local government, but he retains his seat in the legislature and is still the deputy secretary of the ANC in Gauteng. The ANC’s chief whip in Gauteng, Brian Hlongwa, said Mmemezi had done the "honourable thing".

Such displays of "honour" are not entirely unprecedented. It has happened before, and recently, even, but rarely enough that it's always surprising. More often than not, "honour" is conspicuously absent. How do non-performing politicians and those accused of corruption manage to hold on to their jobs in the face of huge public opposition?

The law's the law

In part, it's because they're citizens too, and so are protected by the laws of the country. Grant Masterson, manager of the African Peer Review Mechanism at the Electoral Institute for Sustainable Democracy in Africa, said that like any other employee, politicians in the civil service are protected by the Basic Conditions of Employment Act "[President Jacob Zuma] found with Vusi Pikoli that it's not easy to fire someone," he said, adding, "It is valid that you can't just fire someone without due process, good cause and evidence."

Masterson also pointed out that politics and influence also play a role in whether a party takes stern action against its members. The defiant posturing by political figures in the middle of a scandal so often seen in the media sometimes sends the message to their political superiors that they are not prepared to fall quietly on their sword, he said. Perhaps this provides some clue as to why Mmemezi has not been asked to vacate his seat in the legislature.

With the ANC's elective conference in Mangaung just months away, it might be imprudent for members of the Gauteng branches  to get on the wrong side of a man who has powerful patrons within the party, among them Gauteng ANC chairperson Paul Mashatile. Offending the wrong people could see cadres bumped down the party lists at Mangaung. Mmemezi isn’t going anywhere. As an elected official, he can’t be ousted from his seat. He must offer to resign or else have his membership in the party he represents terminated.

Murky waters

Party discipline is tricky and convoluted. It’s governed by the party’s constitution, which does not always provide the degree of clarity needed to effect swift justice. ANC spokesperson Keith Khoza said that while the constitution of the ANC discusses issues of party discipline it does not specify what action should be taken if a member has been found guilty of committing an offence, such as corruption, in government. In such cases, the party relies on the rule of law. "We allow the law enforcement agencies to exercise their responsibility in dealing with issues of corruption or crimes that have been committed," he said. But relying on the law will not bring about the swift justice that members of the public want to see when there are serious allegations of fraud.

The Public Service Commission, which monitors and evaluates administration, has in the past reported on the state’s poor capacity to investigate and resolve cases of alleged corruption internally and the reluctance in government to refer matters to the police for investigation. It pointed out that even in cases where local and national government officials had been found guilty of fraud through internal processes, there is a tendency to simply give written warnings and not to take action against officials.

Mind the gap

Khoza said discussions are currently being held in the ANC on how to address the gap between allegations of corruption and conviction in a court of law. One way may be through the formation of an “integrity committee,” he said, but this idea had yet to be finalised.

According to Nkenke Kekana, spokesperson for the ANC in Gauteng, the integrity committee is a resolution of the Limpopo conference, which elected Zuma almost four years ago. Gauteng is the first province to establish an integrity committee, and Mmemezi was the first ANC member it investigated.

Another idea, flighted at the ANC’s policy conference earlier this month, is that cadres facing charges of corruption be required to “step aside” from their public position until investigations had been completed. This could help avoid controversies, such as that involving Northern Cape ANC chairperson, John Block. Block has been facing charges of fraud and corruption since 2010 in case that is expected to be resolved no earlier than next year.

Opposition parties are quick to point out the need for internal disciplinary efficiencies.
Lyndall Shope-Mafole, acting general secretary of the Congress of the People (Cope), said that the party had learned from the experiences of the ANC, and has tried hard to ensure that disciplinary issues are resolved as quickly as possible. Shope-Mafole said that, as evidenced by the case of former ANC Youth League leader Julius Malema, ANC disciplinary issues can drag on for months and even then there is the possibility of appealing to the NEC, the Congress, and even going to court. "It doesn't work. It makes the organisation ungovernable," she said. She said Cope’s disciplinary processes are run by an independent committee and all efforts are made to resolve disciplinary matters as quickly as possible, and that issues such as corruption, fraud and bringing the party into disrepute are taken very seriously.

The party, which has been riven by faction-fighting almost since its inception, famously expelled its co-founder Mbhazima Shilowa after an internal disciplinary committee found him guilty of corruption. This was followed by a flurry of expulsions, seen by some as evidence of a purge of those still loyal to Shilowa.

Quick isn't easy

The Democratic Alliance’s federal constitution allows for the immediate expulsion of a member convicted of a serious crime, such as corruption. Still, James Selfe, chairperson of the DA’s federal executive, said that in cases of misconduct it can sometimes be difficult to act with the firmness the party would like. "The party must prove beyond reasonable doubt that a member is guilty, yet the party does not have powers of subpoena or investigation.  Very often cases are dismissed, or not even brought, because it is impossible to climb this evidential mountain," he said.

Selfe also said that the fact that the decision to expel a member could be challenged in court also posed problems for a party wanting to rid itself of an embarrassing member. In 2001, Peter Marais, who had been expelled from the DA and sacked from his position as mayor of Cape Town, was reinstated after winning a case in the Cape High Court. After a series of party-hopping moves  Marais eventually joined Cope.

The party is now considering a discussion document which will lay out the procedure for dealing with poorly performing public representatives. Selfe said this "poor performance procedure" would identify ways in which the party could help members improve their performance. Those who don’t improve could be moved to other positions, or out of the party entirely.

Sending the wrong signals

Meanwhile Parliament is in the process of finalising a policy that will set more stringent requirements for MPs' attendance at Parliament, a move that could in future see lazy public officials axed.

National Assembly speaker Max Sisulu has said that if there are no consequences for non-attendance from Parliament itself, it would send the wrong signals to both society and MPs. Moloto Mothapo, spokesperson for the ANC’s chief whip, said the policy would outline various punitive measures, from docking salaries to the loss of membership, for those who are absent from parliament without good cause. "The rules will then decide after how long one has been absent from Parliament he or she ceases to be a member of Parliament," he said.

Whether improved parliamentary and party discipline can make a difference to the performance and conduct of elected officials remains to be seen. For now, as before, South African political parties are for the most part left scratching their head about what to do with the more obstinate of their political dead wood. "To err is human; to forgive is divine," Hlongwa told the Gauteng ANC press conference last week.

It seems there is still much to divine about integrity in South African politics.

Source: Mail & Guardian

Councillor removed for selling land

AN ANC ward councillor found guilty of illegally selling council property has been removed from his position in Johannesburg with immediate effect, the party says "He has embarrassed the party and now that he has faced disciplinary procedures at council level and been removed from the council, he will now go to a regional disciplinary council," said spokesman Jolidee Matongo.

The decision to remove Godfrey Thabo Nkhasi, councillor for Ward 28, was made by local government and housing MEC Humphrey Mmemezi and was welcomed by the ANC in the Johannesburg region. "The MEC has instructed that a criminal case be opened which will happen in the course of the week," Matongo said.

In 2008, Nkhasi sold land in Diepkloof, Soweto, to the Together As One Church of Christ for R15,000. After questioning the validity of receipts and letters purportedly confirming the land transfer, the church received an anonymous call warning it to stop building on the land or someone would be killed. Nkhasi will face the ANC Johannesburg region disciplinary committee from February 15 to 17.

In the meantime, councillors Neo Mashele and Paul Masemola would act for the ward.

Source: The Sowetan