Startling revelations and powerful evidence of grand corruption implicating politicians from PW Botha to Jacob Zuma, global banks and corporations was presented at The People's Tribunal on Saturday and Sunday.
Overseen by an esteemed panel including former Constitutional Court Justice Zac Yacoob, the Tribunal has been set up by civil society groups to hear evidence on corruption, capture and economic crime over the last 40 years in South Africa.
The Tribunal has, thus far, heard evidence of covert networks of politicians, state companies and corporations involved in the systemic violation of the United Nations' weapons embargo on South Africa during apartheid.
Standing as a witness, author of "Apartheid Guns and Money" Hennie van Vuuren emphasised the importance of bringing this evidence to light is in recognising the actors that contributed to the gross violation of human rights during apartheid. Beyond the pursuit of justice, he said, the goal is also to recognise how these crimes are connected.
Apartheid's murderous military machine
At the heart of the arms machine, he said, was South African state-owned arms company Armscor which bought (and sold) weapons from abroad in contravention of a compulsory U.N. embargo on trading arms with the country.
Almost all military expenditure, which amounted to approximately 28% of the country's budget at the time or half a trillion rand in today's value, passed through the company, he said.
But to oil this military machine -- which was created in response to the "appetite for the apartheid government's involvement in conflict locally and on the continent" -- the company needed to circumvent the compulsory global sanctions. In come the French.
Die Groot Krokodil's deathly French Kiss
Realising weapons couldn't be procured from Pretoria, then-Prime Minister PW Botha ('Die Groot Krokodil') took business abroad. For some a city of love, South Africa's government made Paris, France, its city of bloodlust.
The South African embassy in Paris housed what was called the tegniese raad (technical council) from which Armscor would strike it's deals, which van Vuuren said was not known until they began researching years ago.
"This was there base... from which they'd go around Europe doing deals, in some instances liaising with partners in Africa (like Zaire)... and perhaps even China," he said.
Even leading figures in the anti-apartheid movement who tried to expose these links had no idea what was happening in Paris. Documentary evidence, van Vuuren said, showed how French intelligence would have regular meetings with Armscor officials on a regular basis in the 1970s and 1980s. That heads of intelligence from France and South Africa were meeting suggests politicians in the upper echelons of France's government were well aware of sanctions being broken, he said.
Central to this relationship, he added, was French arms company Thompson CSF -- today Thales -- which documentary evidence showed met with PW Botha's minister of defence to co-develop sophisticated missile technology for use in apartheid South Africa's warmongering locally and abroad.
Demonstrating just how far into the present dodgy relations continued, Van Vuuren highlighted that the same company, Thales, is implicated in paying bribes to now President Jacob Zuma through his financial adviser (and now convicted fraudster) Schabir Shaik.
"These are the 783 counts of corruption, fraud and money laundering [Zuma] currently faces today," he said.
The two faces of the international community
The story of the apartheid government's circumvention of sanctions, however, was more than just a French love affair with the Broederbond.
More than 50 countries were involved in sanctions-busting in one way or another, he said. Most notably, every single country on the United Nation's Security Council -- those very nations tasked with policing the sanctions that were imposed -- were all involved to some extent, he said.
Others included many countries across Europe and, notably, Israel. Armscor, he said, created offices in Tel Aviv which was "active in ensuring the relationship with Israel in the procurement and co-development of weapons could take place with a large contingent of officials based there".
Many of these nations, he said, voiced public opposition to apartheid while secretly adding fuel to the fire.
How to bankroll a bloody regime
Another key player, this time a bank, was Kredietbank in Belgium and its Luxembourg subsidiary.
Professor Bonita Meyersfeld, an academic and former director of the Centre for Applied Legal Studies at Wits, reiterated the bank's role in aiding Armscor: firstly, through creating shell companies to help erase the trail of money and, secondly, in creating access to bank accounts.
Through accounts managed by the bank, money to purchase arms could be transferred from Pretoria to the ultimate recipients without raising any alarms. More simply, by setting up fake companies and chanelling money through them, the apartheid regime was able to oil its military machine without let or hindrance.
"Countries such as Belgium, France, Portugal and others were able to utilise private entities to enter into engagements with banks that very elegantly set up these shelf companies," she said.
"There'd be hundreds of these across the world where a corporate actor in the Global North would take funds, channel them through shelf companies and money would land up in SA which then went to Armscor (and vice versa)".
"These are not just AK47s -- an image incalcated in films -- but parts of machine guns, helipcopters, parts used to maintain and facilitate this crime against humanity," she said.
Like a spy novel, though, they occurred in the back rooms of the very embassies that stood against apartheid, she said.
Why does this matter today?
In detailing the secret flow of money for arms, Meyersfeld said the purpose is to shine a light on the fact that there remains an urgent need to create a global body to regulate the conduct of banks.
"The reality is there is no international entity that can hold banks to account for their compliance or their non-compliance with standards around international banking, and more importantly for the participation in criminal activity," she said.
Despite the "accountability vacuum," one option she said was to use the OECD National Contact Point (NCP) which hears complaints from individuals who claim corporations are guilty of human rights violations. OECD countries adhering to guidelines on multinational corporations are required to setup NCPs which provide a mediation and conciliation platform for resolving issues involving those companies, she said.
While no silver bullet, this would be one currently available option for "some semblance of accountability" in relation to Kredietbank, she said. Reputation damage, she said, could ultimately result in operations closing or at the least spark efforts at reparations in the absence of a global entity with real teeth.
Insisting on the necessity of global institutions or mechanisms to ensure justice, Meyersfeld said corporations had gotten off scot-free for too long.
"They may not hold the gun to the mineworker at the mine, but they are the ones providing the funds to do this," she said.
When they do, she added, corporate social responsibility projects in response are not enough:
"Corporates can be the agent of harm and the agent of good. But you can't bomb an economy, then build a school".
Source: Marc Davies - Huffington Post
Showing posts with label Jacob Zuma. Show all posts
Showing posts with label Jacob Zuma. Show all posts
Monday, February 5, 2018
Thursday, April 21, 2016
Press Statement by Andrew Feinstein, Paul Holden and Hennie Van Vuuren regarding the release of the SERITI COMMISSION REPORT into the ARMS DEAL
On the 21st of April 2016, President Jacob Zuma announced the release of the report of the Commission of Inquiry into allegations of fraud, corruption, impropriety or irregularity in the Strategic Defence Procurement Package (the ‘Arms Deal’). During the same announcement, President Zuma provided a summary of the findings of the Commission.
The Commission found that there was nothing wrong with the Arms Deal in its conception, execution or economic impact, despite considerable evidence in the public domain to the contrary. Most importantly, it found that there was no evidence that any of the contracts in the Arms Deal were tainted by evidence of corruption, fraud or irregularity.
We are disappointed, but hardly surprised, that the Commission has come to these findings, which are tantamount to a cover-up. Indeed, it was abundantly clear during the work of the Commission that it was ill-disposed towards undertaking a full, meaningful and unbiased investigation into the Arms Deal. It routinely failed to either admit or interrogate any evidence of wrongdoing in relation to the Deal.
In August 2014, we withdrew from the Commission of Inquiry in protest at the manner in which it was conducting its investigation. Our withdrawal and subsequent refusal to testify before the Commission in October 2014 was supported by over forty civil society organisations who shared our concerns. We identified four primary problems, which we believed indicated that the Commission was failing to investigate the Arms Deal fully, meaningfully and without favour. These concerns were:
1. During the life of the Commission, a number of employees resigned in protest at the manner in which it was conducting its work. In at least two cases, the employees stated that they were resigning because the Commission did not intend to investigate the Arms Deal. Rather, the Commission was pursuing a ‘second agenda’, namely, to discredit critics of the Arms Deal and find in favour of the State and arms companies’ version of events;
2. The Commission refused to admit vital documentary evidence of wrongdoing during the public hearings. One such document was the Debevoise Plimpton Report, an internal audit of the arms company Ferrostaal, which received contracts in the Arms Deal. The Report indicated that Ferrostaal had made tens of millions of rands in payments to politically connected politicians and procurement officials. The report also quoted senior Ferrostaal employees as stating that the offset program was merely a conduit for bribes. In their resignation from the Commission, evidence leaders Advocates Barry Skinner and Carol Sibiya specifically pointed out that refusing to admit the Report ‘nullifies the very purposes for which the Commission was set up.’
3. The Commission refused to allow critical witnesses to testify about documents that they had not written, or events to which they were not personally witness. One major consequence of this is that the only people who could testify to corruption in the Arms Deal were those who paid or received bribes.
4. The Commission failed to provide documents to which we were entitled under the terms of our subpoena, despite repeated requests. The Commission claimed that it was refusing to do so as we were undertaking a ‘fishing expedition.’ The failure of the Commission to provide us with the documents to which we were legally entitled was typical of the Commission’s attitude of sometimes open hostility to critical witnesses.
Despite the above concerns, we are pleased that the Commission Report is now public. We look forward to interrogating its contents in full, and intend to provide a detailed response to the material therein at the earliest opportunity.
In addition, we are seeking legal advice as to the legality of the Commission’s conduct and the viability of a legal review to have the Report set aside. An announcement on this process will be made in due course.
We believe that the report represents a massive missed opportunity at arriving at the truth. However this is not the end of the road in the struggle for truth justice and accountability of corruption in the arms deal.
CONTACT
HENNIE VAN VUUREN
+27 82 902 1303
hennievvuuren@gmail.com
ANDREW FEINSTEIN
+1 929 392 0133
+44 7809728164
andrewfeinstein@me.com
PAUL HOLDEN
+44 795 088 3329
pauledwardholden@gmail.com
Source: Lawyers for Human Rights
The Commission found that there was nothing wrong with the Arms Deal in its conception, execution or economic impact, despite considerable evidence in the public domain to the contrary. Most importantly, it found that there was no evidence that any of the contracts in the Arms Deal were tainted by evidence of corruption, fraud or irregularity.
We are disappointed, but hardly surprised, that the Commission has come to these findings, which are tantamount to a cover-up. Indeed, it was abundantly clear during the work of the Commission that it was ill-disposed towards undertaking a full, meaningful and unbiased investigation into the Arms Deal. It routinely failed to either admit or interrogate any evidence of wrongdoing in relation to the Deal.
In August 2014, we withdrew from the Commission of Inquiry in protest at the manner in which it was conducting its investigation. Our withdrawal and subsequent refusal to testify before the Commission in October 2014 was supported by over forty civil society organisations who shared our concerns. We identified four primary problems, which we believed indicated that the Commission was failing to investigate the Arms Deal fully, meaningfully and without favour. These concerns were:
1. During the life of the Commission, a number of employees resigned in protest at the manner in which it was conducting its work. In at least two cases, the employees stated that they were resigning because the Commission did not intend to investigate the Arms Deal. Rather, the Commission was pursuing a ‘second agenda’, namely, to discredit critics of the Arms Deal and find in favour of the State and arms companies’ version of events;
2. The Commission refused to admit vital documentary evidence of wrongdoing during the public hearings. One such document was the Debevoise Plimpton Report, an internal audit of the arms company Ferrostaal, which received contracts in the Arms Deal. The Report indicated that Ferrostaal had made tens of millions of rands in payments to politically connected politicians and procurement officials. The report also quoted senior Ferrostaal employees as stating that the offset program was merely a conduit for bribes. In their resignation from the Commission, evidence leaders Advocates Barry Skinner and Carol Sibiya specifically pointed out that refusing to admit the Report ‘nullifies the very purposes for which the Commission was set up.’
3. The Commission refused to allow critical witnesses to testify about documents that they had not written, or events to which they were not personally witness. One major consequence of this is that the only people who could testify to corruption in the Arms Deal were those who paid or received bribes.
4. The Commission failed to provide documents to which we were entitled under the terms of our subpoena, despite repeated requests. The Commission claimed that it was refusing to do so as we were undertaking a ‘fishing expedition.’ The failure of the Commission to provide us with the documents to which we were legally entitled was typical of the Commission’s attitude of sometimes open hostility to critical witnesses.
Despite the above concerns, we are pleased that the Commission Report is now public. We look forward to interrogating its contents in full, and intend to provide a detailed response to the material therein at the earliest opportunity.
In addition, we are seeking legal advice as to the legality of the Commission’s conduct and the viability of a legal review to have the Report set aside. An announcement on this process will be made in due course.
We believe that the report represents a massive missed opportunity at arriving at the truth. However this is not the end of the road in the struggle for truth justice and accountability of corruption in the arms deal.
CONTACT
HENNIE VAN VUUREN
+27 82 902 1303
hennievvuuren@gmail.com
ANDREW FEINSTEIN
+1 929 392 0133
+44 7809728164
andrewfeinstein@me.com
PAUL HOLDEN
+44 795 088 3329
pauledwardholden@gmail.com
Source: Lawyers for Human Rights
Saturday, February 7, 2015
Zuma orders inquiry to probe Nxasana fitness to hold office
“The inquiry would look at whether the facts and circumstance surrounding his previous convictions were “constant with the conscientiousness and integrity of an incumbent of the office of the National Director of Public Prosecutions”, according to the terms of reference published on Friday.
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
Friday, February 6, 2015
JZ ignores damning NPA report
Recommendations against the key actors in the Richard Mdluli fraud case have gone unheeded.
The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.
The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.
Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.
On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.
The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.
The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.
Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.
Both remain in office. NPA spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.
Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.
The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.
Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.
The move blocks any formal decision by the NPA on whether to prosecute the trio.
Nxasana inquiry
The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.
The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.
Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.
One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’
“I suspect he has not changed his position, which is why the president is now proceeding against him.”
Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.
Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.
Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.
Long shadow
The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.
It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.
The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.
Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.
The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.
At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.
Mrwebi’s move
Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.
Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.
In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.
At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.
However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.
Short shrift
The Yacoob report gives short shrift to these machinations.
“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.
“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …
“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.
“In our view his evidence was certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”
Yacoob on Mdluli
Turning to the Mdluli cases, the Yacoob report notes: “We are convinced, having looked at the dockets, that there was at the very least a prima facie case against Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”
In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.
“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …
“There is reason to believe he lied under oath and did not respect the court.
“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.
“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”
Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”
Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.
Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.
“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”
Mzinyathi could not be reached for comment.
Source: mail & Guardian
The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.
The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.
Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.
On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.
The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.
The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.
Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.
Both remain in office. NPA spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.
Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.
The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.
Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.
The move blocks any formal decision by the NPA on whether to prosecute the trio.
Nxasana inquiry
The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.
The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.
Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.
One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’
“I suspect he has not changed his position, which is why the president is now proceeding against him.”
Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.
Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.
Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.
Long shadow
The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.
It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.
The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.
Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.
The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.
At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.
Mrwebi’s move
Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.
Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.
In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.
At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.
However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.
Short shrift
The Yacoob report gives short shrift to these machinations.
“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.
“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …
“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.
“In our view his evidence was certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”
Yacoob on Mdluli
Turning to the Mdluli cases, the Yacoob report notes: “We are convinced, having looked at the dockets, that there was at the very least a prima facie case against Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”
In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.
“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …
“There is reason to believe he lied under oath and did not respect the court.
“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.
“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”
Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”
Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.
Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.
“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”
Mzinyathi could not be reached for comment.
Source: mail & Guardian
Friday, August 15, 2014
NPA boss Nxasana wins battle against suspension - for now
The National Prosecuting Authority boss Mxolisi Nxasana appears to have won round one in his battle against President Jacob Zuma to keep his job.
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Sunday, August 10, 2014
Criminal charges laid against senior NPA officials
Criminal charges have been laid against three National Prosecuting Authority senior officials, the prosecuting authority confirmed on Sunday.
“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.
City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.
Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.
Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa
Source: Mail & Guardian
“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.
City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.
Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.
Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa
Source: Mail & Guardian
Saturday, July 5, 2014
Zuma announces inquiry into NPA boss Nxasana
President Jacob Zuma instituted an inquiry into NPA boss Mxolisi Nxasana, the presidency announced on Saturday.
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
Sunday, February 2, 2014
Zuma buys time for Hawks
President Jacob Zuma and some of his ministers have asked the Constitutional Court for another 18 months to fix the legislation governing the Hawks, the unit that is meant to fight serious organised crime in South Africa.
Zuma, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa have indicated that they will appeal an order by the Western Cape High Court that found the act governing the Hawks still allows for too much political interference. This means the uncertainty over the Hawks, which replaced the Scorpions, will now drag into its sixth year. The Constitutional Court originally declared the act unconstitutional in 2011.
The current case follows the Western Cape High Court’s ruling in December, in favour of the Helen Suzman Foundation, which found that the police’s updated act was still unconstitutional.
The court ruled that adequate mechanisms to prevent political interference in the Hawks were still lacking.
The court gave Parliament a year to rectify this, but Zuma and his ministers have argued that this is not enough time. In court papers filed at the Constitutional Court, Zuma and his ministers ask that Parliament should be given 18 months to fix the legislation. This because “amendment is complex” and because “the period afforded to Parliament coincides with an imminent national election”.
A source familiar with the Hawks said the unit was demoralised and had lost some of its best investigative capacity from the days of the Scorpions. City Press has previously reported on the disagreement and the incoherence that has been caused by confusion over the fate of the unit.
The Helen Suzman Foundation has asked the court to confirm the order of constitutional invalidity. It is also asking the Constitutional Court to declare further sections of the act unconstitutional. One of the sections it is referring to includes a provision that empowers the minister to do “integrity testing” of Hawks members, which the foundation believes is an intimidation tactic. It believes this could include the bugging of Hawks officers’ phones.
Source: City Press
Zuma, Justice Minister Jeff Radebe and Police Minister Nathi Mthethwa have indicated that they will appeal an order by the Western Cape High Court that found the act governing the Hawks still allows for too much political interference. This means the uncertainty over the Hawks, which replaced the Scorpions, will now drag into its sixth year. The Constitutional Court originally declared the act unconstitutional in 2011.
The current case follows the Western Cape High Court’s ruling in December, in favour of the Helen Suzman Foundation, which found that the police’s updated act was still unconstitutional.
The court ruled that adequate mechanisms to prevent political interference in the Hawks were still lacking.
The court gave Parliament a year to rectify this, but Zuma and his ministers have argued that this is not enough time. In court papers filed at the Constitutional Court, Zuma and his ministers ask that Parliament should be given 18 months to fix the legislation. This because “amendment is complex” and because “the period afforded to Parliament coincides with an imminent national election”.
A source familiar with the Hawks said the unit was demoralised and had lost some of its best investigative capacity from the days of the Scorpions. City Press has previously reported on the disagreement and the incoherence that has been caused by confusion over the fate of the unit.
The Helen Suzman Foundation has asked the court to confirm the order of constitutional invalidity. It is also asking the Constitutional Court to declare further sections of the act unconstitutional. One of the sections it is referring to includes a provision that empowers the minister to do “integrity testing” of Hawks members, which the foundation believes is an intimidation tactic. It believes this could include the bugging of Hawks officers’ phones.
Source: City Press
Thursday, January 30, 2014
Limpopo's fierytale: the people vs. the police, Armageddon style
On the day Robert McBride secured a nod in Parliament to lead police watchdog Ipid – and while more denials were heard by the Farlam Commission – news broke that officers in Limpopo shot dead two more protesters in a chaotic stand-off. This brings to eight the number of protesters killed this month alone. ALEX ELISEEV asks what it will take to make the police realise that its relationship with communities across South Africa is in a fiery tailspin.
The numbers are as mad as the story is startling: One satellite police station in the Relela village outside of Tzaneen, Limpopo. Twenty officers defending the outpost. Between 1,500 and 2,000 protesters “attacking” the station with stones and petrol bombs. Some 2,050 rounds of rubber bullets fired before the switch-over to live ammunition. Fifteen officers injured in the battle. Three of them left in a critical condition. Nineteen police cars damaged or destroyed. Two protesters shot and killed during the clash.
The images flooding your mind right now are probably closer to what South African soldiers endured in the Central African Republic rather than what police officers should be dealing with in a war-free, democratic country.
The question that pierces through all those figures is: how angry does a community have to be – what kind of hatred must be festering – for hundreds of people to come together and overrun, by force, their local police station? To try to obliterate the place that houses men and women who’ve taken an oath to protect you. We know too well the evil that lurks inside a mob, but this was an outright storming of a sacred castle.
Unlike with the Marikana bloodbath, there were probably few or no cameras filming the latest clash. The details still have to be investigated by the same organisation that Robert McBride – one of the country’s most controversial policemen – will soon be leading. But even on the police’s own version, what happened in Relela does not belong in post-Apartheid South Africa.
Granted, what happened there was not a routine service delivery protest over water or electricity that spiralled out of control. The circumstances were different. A local woman was killed and mutilated and the community wanted those responsible to be arrested. Police took a couple of suspects in for questioning but when they were released, their neighbours went on the rampage, burning down their homes. When the police intervened, a teenage boy was shot and killed. His death, in turn, became the magnet that drew the crowd to the Relela police station on Tuesday night.
Limpopo police claim that anyone in the same situation (the situation the officers were in) would have done the exact same thing. The crowd had broken through into the station’s courtyard and were out for revenge. Judging by the damage, there’s every reason to believe that the officers may have been genuinely terrified and thought their lives were in danger. They probably were. Those attacking the station were committing a criminal act. There’s also evidence that the police officers did their best to push back the mob, using thousands of rounds of rubber bullets.
But the issues here run much deeper, the main one being: how did it get to this? How did we reach a crisis which the police, and police minister Nathi Mthethwa, think they can talk their way out of? (Which, of course, they can’t).
Too much blood has been spilled. Too much horror witnessed. The list has been mentioned over and over again: Marikana, Tatane, Macia, Mothutlung, Durban Deep… For way too many people the police have become the enemy.
The cold, hard truth is that the level of violence we are seeing now is the consequence of earlier decisions. Decisions which ranged from bad to catastrophic. Remember the “shoot to kill!” and “maximum force” rhetoric spewing out of Bheki Cele’s mouth (which went viral). Or the decision by Jackie Selebi to reconfigure the Public Order Policing, leaving it in shambles. And, as a show of force, the re-introduction of military ranks.
But worst of all have been the decisions, one after the next, to send in civilians (political appointments) to lead the police. The latest, by President Jacob Zuma, was Riah Phiyega, who has so far had a disastrous run (some of it was not her fault, and some of it was).
The Institute for Security Studies – the think tank which the police loves to ignore – says all indicators show that police brutality is rising, public trust in the service is deteriorating and there doesn’t seem to be any real plan to reverse either of these trends.
Asked whether we can expect more bloodshed, the ISS’s Gareth Newham says: “I hope not. But we will continue to see growing anger and discontent and a breakdown of the relationship.”
He adds: “Warnings were ignored and now we’re seeing the consequences.”
The reality on the ground is complex. The balance between crushing violent crime or policing tense protests while respecting human rights is a delicate one. No one is saying it’s easy. Then there’s the politics, corruption, shadowy alliances and the unholy mess in units like Crime Intelligence (which Phiyega is now trying to clean up).
The time has come for drastic action. Possibly a complete overhaul of the Public Order Policing (POP). The unit needs an injection of officers and strong, accountable commanders. A message needs to cascade through the ranks that says that anyone who steps out of line, who loads up their shotgun with buckshot or fires without an order, will be punished. Officers need to be better trained. And all of this needs to be communicated to the public so that perceptions can begin to change. Maybe even hold a public commission of inquiry into the POP, diagnose the problem and fix it.
It’s time for Mthethwa to go beyond sending out media statements and praying with families of victims. He needs to take meaningful action. It’s time for President Jacob Zuma to step up. If he can find the time to congratulate Ladysmith Black Mambazo on a Grammy or the Bantu Church of Christ on its centenary, spur on the Matrics or defend eTolling, he can get stuck into this crisis. And by that we mean do something more than establish a task team. After all, the storming of a police station is about as close as you can come to true lawlessness.
Newham describes what happened in Relela as a “new development”. It’s much more than that. It’s a wake-up call, a short in the circuit of democracy. A signal that the relationship between police and civilians can’t be that of a state of war or a violent occupation. History teaches us how people, countries, respond to that.
When Phiyega visited the community on Wednesday, angry residents were shouting at her, demanding to know who gave the order to kill? She did her best to restore calm to the area, but she was up against a hostile crowd.
The police may be under attack, but they have to start earning back the trust. Showing the public that they are not the enemy. When what happened in Relela becomes a reality, you’ve waited too long to act. DM
Source: Daily Maverick
The numbers are as mad as the story is startling: One satellite police station in the Relela village outside of Tzaneen, Limpopo. Twenty officers defending the outpost. Between 1,500 and 2,000 protesters “attacking” the station with stones and petrol bombs. Some 2,050 rounds of rubber bullets fired before the switch-over to live ammunition. Fifteen officers injured in the battle. Three of them left in a critical condition. Nineteen police cars damaged or destroyed. Two protesters shot and killed during the clash.
The images flooding your mind right now are probably closer to what South African soldiers endured in the Central African Republic rather than what police officers should be dealing with in a war-free, democratic country.
The question that pierces through all those figures is: how angry does a community have to be – what kind of hatred must be festering – for hundreds of people to come together and overrun, by force, their local police station? To try to obliterate the place that houses men and women who’ve taken an oath to protect you. We know too well the evil that lurks inside a mob, but this was an outright storming of a sacred castle.
Unlike with the Marikana bloodbath, there were probably few or no cameras filming the latest clash. The details still have to be investigated by the same organisation that Robert McBride – one of the country’s most controversial policemen – will soon be leading. But even on the police’s own version, what happened in Relela does not belong in post-Apartheid South Africa.
Granted, what happened there was not a routine service delivery protest over water or electricity that spiralled out of control. The circumstances were different. A local woman was killed and mutilated and the community wanted those responsible to be arrested. Police took a couple of suspects in for questioning but when they were released, their neighbours went on the rampage, burning down their homes. When the police intervened, a teenage boy was shot and killed. His death, in turn, became the magnet that drew the crowd to the Relela police station on Tuesday night.
Limpopo police claim that anyone in the same situation (the situation the officers were in) would have done the exact same thing. The crowd had broken through into the station’s courtyard and were out for revenge. Judging by the damage, there’s every reason to believe that the officers may have been genuinely terrified and thought their lives were in danger. They probably were. Those attacking the station were committing a criminal act. There’s also evidence that the police officers did their best to push back the mob, using thousands of rounds of rubber bullets.
But the issues here run much deeper, the main one being: how did it get to this? How did we reach a crisis which the police, and police minister Nathi Mthethwa, think they can talk their way out of? (Which, of course, they can’t).
Too much blood has been spilled. Too much horror witnessed. The list has been mentioned over and over again: Marikana, Tatane, Macia, Mothutlung, Durban Deep… For way too many people the police have become the enemy.
The cold, hard truth is that the level of violence we are seeing now is the consequence of earlier decisions. Decisions which ranged from bad to catastrophic. Remember the “shoot to kill!” and “maximum force” rhetoric spewing out of Bheki Cele’s mouth (which went viral). Or the decision by Jackie Selebi to reconfigure the Public Order Policing, leaving it in shambles. And, as a show of force, the re-introduction of military ranks.
But worst of all have been the decisions, one after the next, to send in civilians (political appointments) to lead the police. The latest, by President Jacob Zuma, was Riah Phiyega, who has so far had a disastrous run (some of it was not her fault, and some of it was).
The Institute for Security Studies – the think tank which the police loves to ignore – says all indicators show that police brutality is rising, public trust in the service is deteriorating and there doesn’t seem to be any real plan to reverse either of these trends.
Asked whether we can expect more bloodshed, the ISS’s Gareth Newham says: “I hope not. But we will continue to see growing anger and discontent and a breakdown of the relationship.”
He adds: “Warnings were ignored and now we’re seeing the consequences.”
The reality on the ground is complex. The balance between crushing violent crime or policing tense protests while respecting human rights is a delicate one. No one is saying it’s easy. Then there’s the politics, corruption, shadowy alliances and the unholy mess in units like Crime Intelligence (which Phiyega is now trying to clean up).
The time has come for drastic action. Possibly a complete overhaul of the Public Order Policing (POP). The unit needs an injection of officers and strong, accountable commanders. A message needs to cascade through the ranks that says that anyone who steps out of line, who loads up their shotgun with buckshot or fires without an order, will be punished. Officers need to be better trained. And all of this needs to be communicated to the public so that perceptions can begin to change. Maybe even hold a public commission of inquiry into the POP, diagnose the problem and fix it.
It’s time for Mthethwa to go beyond sending out media statements and praying with families of victims. He needs to take meaningful action. It’s time for President Jacob Zuma to step up. If he can find the time to congratulate Ladysmith Black Mambazo on a Grammy or the Bantu Church of Christ on its centenary, spur on the Matrics or defend eTolling, he can get stuck into this crisis. And by that we mean do something more than establish a task team. After all, the storming of a police station is about as close as you can come to true lawlessness.
Newham describes what happened in Relela as a “new development”. It’s much more than that. It’s a wake-up call, a short in the circuit of democracy. A signal that the relationship between police and civilians can’t be that of a state of war or a violent occupation. History teaches us how people, countries, respond to that.
When Phiyega visited the community on Wednesday, angry residents were shouting at her, demanding to know who gave the order to kill? She did her best to restore calm to the area, but she was up against a hostile crowd.
The police may be under attack, but they have to start earning back the trust. Showing the public that they are not the enemy. When what happened in Relela becomes a reality, you’ve waited too long to act. DM
Source: Daily Maverick
Tuesday, January 7, 2014
Why the matric pass rate is not a reliable benchmark of education quality
Jacob Zuma has hailed the matric pass rate as a “significant improvement”. But is the education system “on the right track”? As we discovered, matric results are not a reliable barometer of education quality.
For the fifth year in a row, South Africa’s education authorities have announced dramatic improvements in the matric pass rate.
“[W]e are sending a strong message that basic education under the new administration has the capacity to improve the quality of education in South Africa,” Angie Motshekga, the Minister of Basic Education, said this week as she made the announcement.
“[T]his is the best matric class since 1994,” South African president Jacob Zuma enthused. “We are…pleased to note this consistently upward trend in the matric results, with the pass rate going from 62.6% in 2008, dipping to 60.6% in 2009, only to rise to 67.8% in 2010, 70.2% in 2011 and 73.9% in 2012.” (Note: It hasn’t been entirely consistent. As Zuma himself pointed out, the pass rate fell by two percent in 2009)
A ‘massive fraud’
South African children attend school on March 13, 2009 under a tree in the Eastern Cape village of Libode. Others have been far less complimentary.
In a scathing opinion piece, Jonathan Jansen, the vice-chancellor of the University of the Free State and a prominent commentator on education, wrote that the country’s education system was a “massive fraud”.
Government “wrongly, but conveniently” used the matric results as “a barometer of the state of the school system” when all other data “reveal we have been stagnating, or doing worse”, Jansen argued.
The opposition Democratic Alliance has called on Motshekga to “institute a full-scale independent audit of the 2013 results”, citing concerns over the quality of the markers, the process of moderation and the high dropout rate.
‘On the right track’
While conceding that there is “still a lot of work that needs to be done”, Motshekga remains adamant that education in South Africa is on the “right track”.
Addressing a business briefing hosted by The New Age newspaper yesterday, Motshekga said that the pass rate – which has improved from 60.9% in 2009 to 78.2% in 2013 – is “an indication that indeed the system is on the right track”.
She also claimed that “[t]here is overwhelming evidence that we are improving learner performance”.
Is the system really on the right path? And has the quality of education in South Africa improved along with the pass rate?
Minister contradicted by her own department
South African Basic Education Minister Angie Motshekga with President Jacob Zuma at the European Union headquarters in Brussels. For starters, Motshekga’s claim that the increase in the pass rate “is an indication that indeed the system is on the right track” is contradicted by her own department.
The department of basic education states on its website that “[c]ontrary to popular belief, the matric pass rate on its own is not a good measure of academic achievement in the schooling system, nor was the pass rate ever designed for this”. Rather, the pass rate serves as a “measure of the opportunities open to our youths”.
It goes on to add: “Comparing pass rates in different years is in fact not like comparing apples to apples… Examinations like our matric are simply not designed to compare the performance of the schooling system across years. They are designed to test whether the individual learner qualifies for a certificate, based on the subjects the learner has chosen.”
The department suggests that “[i]f one wants to compare how well the system is doing, one should turn to testing systems like the international TIMSS and SACMEQ programmes, where South Africa has participated for some years.”
High dropout rate skews results
A further flaw in using the matric pass rate as a barometer of national performance is that thousands of school pupils drop out long before they reach their final year. The dropout rate is not taken into account in the final pass rate.
For example, when the 2013 matric class started grade one in 2002, there were 1,261,827 pupils. But by the time they came to sit for their final exams, their numbers had fallen to 562,112.
Nicholas Spaull, a researcher at Stellenbosch University who focuses on primary education, says that “students are pushed through the system until grade 10, and then schools realise that if they put these kids through, they are not going to pass grade 12”.
“Getting low pass rates in matric is problematic for schools, so they weed out these students.”
The ‘culling process’
A group of schoolchildren in central Pretoria. Photo: AFP/Alexander JoeThe matric rate is thus bumped up and gives no indication of how the 50% that fall by the wayside are doing. Jansen, in his opinion piece, called it a “culling process” that has left behind half a million people with little or no proper education.
Mary Metcalfe, former head of the Wits University School of Education and a former provincial government minister for education in South Africa’s Gauteng province, echoes these concerns. “[The pass rate] doesn’t tell us about the large number of children who didn’t make matric, who didn’t pass grade ten, who didn’t pass grade 11 and who failed at grade 12,” she said.
The dropout rate has had a significant impact. A 2011 report revealed that “60% of youths are left with no qualification at all beyond the Grade 9 level”.
Pupils are choosing easier subjects
Whether as a result of school pressure or individual choice, pupils are increasingly taking easier subjects.
In 2010, 263,034 full-time pupils wrote mathematics. This decreased to 241,509 pupils in 2013. Conversely, numbers of full-time pupils writing mathematical literacy, the easier subject, increased from 280,836 in 2010 to 324,097 in 2013.
The department of basic education acknowledges the impact this has on the final pass rate. “A key factor is the spread of learners across subjects. When this changes, the pass rate can change, even if performance in individual subjects remains the same. In particular, if learners move to easier subjects, more learners pass.”
Good performances skew the average
The matric results also conceal the underperformance of the majority of pupils who write the examination. Strong performances in a minority of schools will mask the poor performance of the majority of schools that are judged as dysfunctional.
This skews the average, and does not present a true reflection of the mean for most pupils. This point was also highlighted in Jansen’s criticism of the matric results. “[I]f you removed the top 20% of schools – mainly former white, privileged schools – from the national averages, then a very dark picture emerges of a mainly black and poor school system performing far below what the combined results show,” he wrote.
Conclusion – Matric pass rate doesn’t mean education is on the right track
The improvement in the matric pass rate is good news for those concerned, but it is not a sign that the “system is on the right track”, nor that the quality of the education system is improving. An Africa Check report looking at claims made about the 2012 matric results came to the same conclusions.
The matric results are not a good measure of academic achievement in the education system. As the department has acknowledged, they are not designed for yearly comparison or to be a reflection of academic achievement in the education system. The good performance of a minority of schools can also skew the results, as can pupils electing to take easier subjects.
The results only account for about half of those who entered school together. South Africa’s high dropout rate means that many young people will never get the chance to write their matric examinations, let alone pass them.
Source: Africa Check
For the fifth year in a row, South Africa’s education authorities have announced dramatic improvements in the matric pass rate.
“[W]e are sending a strong message that basic education under the new administration has the capacity to improve the quality of education in South Africa,” Angie Motshekga, the Minister of Basic Education, said this week as she made the announcement.
“[T]his is the best matric class since 1994,” South African president Jacob Zuma enthused. “We are…pleased to note this consistently upward trend in the matric results, with the pass rate going from 62.6% in 2008, dipping to 60.6% in 2009, only to rise to 67.8% in 2010, 70.2% in 2011 and 73.9% in 2012.” (Note: It hasn’t been entirely consistent. As Zuma himself pointed out, the pass rate fell by two percent in 2009)
A ‘massive fraud’
South African children attend school on March 13, 2009 under a tree in the Eastern Cape village of Libode. Others have been far less complimentary.
In a scathing opinion piece, Jonathan Jansen, the vice-chancellor of the University of the Free State and a prominent commentator on education, wrote that the country’s education system was a “massive fraud”.
Government “wrongly, but conveniently” used the matric results as “a barometer of the state of the school system” when all other data “reveal we have been stagnating, or doing worse”, Jansen argued.
The opposition Democratic Alliance has called on Motshekga to “institute a full-scale independent audit of the 2013 results”, citing concerns over the quality of the markers, the process of moderation and the high dropout rate.
‘On the right track’
While conceding that there is “still a lot of work that needs to be done”, Motshekga remains adamant that education in South Africa is on the “right track”.
Addressing a business briefing hosted by The New Age newspaper yesterday, Motshekga said that the pass rate – which has improved from 60.9% in 2009 to 78.2% in 2013 – is “an indication that indeed the system is on the right track”.
She also claimed that “[t]here is overwhelming evidence that we are improving learner performance”.
Is the system really on the right path? And has the quality of education in South Africa improved along with the pass rate?
Minister contradicted by her own department
South African Basic Education Minister Angie Motshekga with President Jacob Zuma at the European Union headquarters in Brussels. For starters, Motshekga’s claim that the increase in the pass rate “is an indication that indeed the system is on the right track” is contradicted by her own department.
The department of basic education states on its website that “[c]ontrary to popular belief, the matric pass rate on its own is not a good measure of academic achievement in the schooling system, nor was the pass rate ever designed for this”. Rather, the pass rate serves as a “measure of the opportunities open to our youths”.
It goes on to add: “Comparing pass rates in different years is in fact not like comparing apples to apples… Examinations like our matric are simply not designed to compare the performance of the schooling system across years. They are designed to test whether the individual learner qualifies for a certificate, based on the subjects the learner has chosen.”
The department suggests that “[i]f one wants to compare how well the system is doing, one should turn to testing systems like the international TIMSS and SACMEQ programmes, where South Africa has participated for some years.”
High dropout rate skews results
A further flaw in using the matric pass rate as a barometer of national performance is that thousands of school pupils drop out long before they reach their final year. The dropout rate is not taken into account in the final pass rate.
For example, when the 2013 matric class started grade one in 2002, there were 1,261,827 pupils. But by the time they came to sit for their final exams, their numbers had fallen to 562,112.
Nicholas Spaull, a researcher at Stellenbosch University who focuses on primary education, says that “students are pushed through the system until grade 10, and then schools realise that if they put these kids through, they are not going to pass grade 12”.
“Getting low pass rates in matric is problematic for schools, so they weed out these students.”
The ‘culling process’
A group of schoolchildren in central Pretoria. Photo: AFP/Alexander JoeThe matric rate is thus bumped up and gives no indication of how the 50% that fall by the wayside are doing. Jansen, in his opinion piece, called it a “culling process” that has left behind half a million people with little or no proper education.
Mary Metcalfe, former head of the Wits University School of Education and a former provincial government minister for education in South Africa’s Gauteng province, echoes these concerns. “[The pass rate] doesn’t tell us about the large number of children who didn’t make matric, who didn’t pass grade ten, who didn’t pass grade 11 and who failed at grade 12,” she said.
The dropout rate has had a significant impact. A 2011 report revealed that “60% of youths are left with no qualification at all beyond the Grade 9 level”.
Pupils are choosing easier subjects
Whether as a result of school pressure or individual choice, pupils are increasingly taking easier subjects.
In 2010, 263,034 full-time pupils wrote mathematics. This decreased to 241,509 pupils in 2013. Conversely, numbers of full-time pupils writing mathematical literacy, the easier subject, increased from 280,836 in 2010 to 324,097 in 2013.
The department of basic education acknowledges the impact this has on the final pass rate. “A key factor is the spread of learners across subjects. When this changes, the pass rate can change, even if performance in individual subjects remains the same. In particular, if learners move to easier subjects, more learners pass.”
Good performances skew the average
The matric results also conceal the underperformance of the majority of pupils who write the examination. Strong performances in a minority of schools will mask the poor performance of the majority of schools that are judged as dysfunctional.
This skews the average, and does not present a true reflection of the mean for most pupils. This point was also highlighted in Jansen’s criticism of the matric results. “[I]f you removed the top 20% of schools – mainly former white, privileged schools – from the national averages, then a very dark picture emerges of a mainly black and poor school system performing far below what the combined results show,” he wrote.
Conclusion – Matric pass rate doesn’t mean education is on the right track
The improvement in the matric pass rate is good news for those concerned, but it is not a sign that the “system is on the right track”, nor that the quality of the education system is improving. An Africa Check report looking at claims made about the 2012 matric results came to the same conclusions.
The matric results are not a good measure of academic achievement in the education system. As the department has acknowledged, they are not designed for yearly comparison or to be a reflection of academic achievement in the education system. The good performance of a minority of schools can also skew the results, as can pupils electing to take easier subjects.
The results only account for about half of those who entered school together. South Africa’s high dropout rate means that many young people will never get the chance to write their matric examinations, let alone pass them.
Source: Africa Check
Friday, November 15, 2013
Nkandla report: The real reasons why ministers took on Thuli
The fight between Public Protector Thuli Madonsela and the security cluster is about much more than her provisional report into state expenditure at President Jacob Zuma’s private Nkandla homestead.
It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.
Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.
In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.
What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.
Principle of secrecy
He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”
Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.
Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”
Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.
What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.
In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.
In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.
In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.
But it would be a mistake to see this as a final climb-down instead of a tactical retreat.
Further litigation to come?
In his second affidavit, Mthethwa foreshadows potential further litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”
In short, ministers, not Madonsela, must decide whether the report breaches security.
Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”
Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.
The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ministers’ attempt to exert their authority over Madonsela something of a reach.
That will change when the secrecy Bill is signed into law – which the president could do any day now.
Top secret
The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.
The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.
After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.
In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.
An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.
The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.
It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”
Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.
A sign of things to come
In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”
This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.
In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”
He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”
Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.
Source: Mail & Guardian
It signals the start of a new war between openness and accountability, on the one hand, and secrecy, cloaked in the garb of security, on the other. And it is clear that the Protection of State Information Bill – the so-called secrecy Bill – passed for the third time in the National Assembly this week, opens up a dangerous new front in that war.
Last Friday, Police Minister Nathi Mthethwa approached the Pretoria high court to interdict Madonsela from releasing the draft report, purportedly in a quest for more time.
In effect, though, he sought to block the release until the security cluster ministers were satisfied with the way she had accommodated their concerns about allegedly sensitive information.
What emerges starkly in the court papers is that the ministers believe any document that draws on classified information must itself be classified. In his founding affidavit, Mthethwa in effect threatened criminal sanction should Madonsela release an uncensored draft report to other “affected, implicated and interested parties” to obtain their responses.
Principle of secrecy
He warned: “Release of the provisional report to third parties … without prior authorisation of [the ministers] … is unlawful and carries … a criminal penalty.”
Mthethwa’s affidavit attached an earlier letter to Madonsela from Public Works Minister Thulas Nxesi, also on behalf of the defence, police and state security ministers.
Nxesi made the point explicitly: “As neither I, nor the ministers involved, have given the necessary permission to declassify the documentation relied upon by you in your provisional report, we deem it necessary to inform you that to release your provisional report without our authorisation would, in effect, result in … a contravention of section 4 of the National Key Points Act, 102 of 1980, and section 4 of the Protection of Information Act, 84 of 1982.”
Nowhere did Mthethwa refer to any specific contents of the draft report to justify the claim that the president’s security was at risk.
What really seems to be at stake is the principle of secrecy – and who gets to pronounce on it.
In her stinging reply, Madonsela said the ministers did not cite a “single fact” to illustrate how the president’s safety would be compromised by the disclosure of the draft report.
In his second affidavit, tabled on Thursday, Mthethwa sidestepped that challenge, claiming it was irrelevant to the request for more time.
In their reply, the ministers abandoned their interdict, citing the fact that Madonsela, in asking for the matter to be postponed until November 15, had in effect given them the extra time they asked for.
But it would be a mistake to see this as a final climb-down instead of a tactical retreat.
Further litigation to come?
In his second affidavit, Mthethwa foreshadows potential further litigation, stating: “It will be argued at an appropriate time, when the need arises, that the [public protector], not being an expert on matters of security, cannot be an arbiter on whether or not there exists a security breach from the contents of the provisional report … Should the respondent arrogate to herself that power to determine whether or not there is a breach of security arising from the contents of her provisional report, I am advised that she will in law be acting ultra vires her powers and the law.”
In short, ministers, not Madonsela, must decide whether the report breaches security.
Mthethwa adds: “The classified and top-secret information extracted by [the public protector] in her provisional report … is governed by the minimum information security standards, and it is those classified and top-secret documents and/or extracts that require the minister to authorise its further publication.”
Clearly, no authorisation has been granted. If Madonsela does not excise what they ask her to, there appears to be a real chance the security cluster will return to court.
The state security department itself accepts that apartheid-era laws the ministers rely on are probably unconstitutional, making the ministers’ attempt to exert their authority over Madonsela something of a reach.
That will change when the secrecy Bill is signed into law – which the president could do any day now.
Top secret
The new Act specifies that the state security minister will make regulations governing how chapter nine institutions – including the public protector and the auditor general – will be allowed to access and use classified information.
The push for a security curtain was echoed in the report of the Joint Standing Committee of Intelligence (JSCI), which released its Nkandla report on Thursday.
After the outcry over the expenditure – about R210-million – in November 2012, the public works minister appointed a government task team to investigate. Its report – classified as top secret – was delivered to Nxesi in January.
In June, the report was referred to the JSCI, which usually carries out oversight of the intelligence services.
An opinion from the parliamentary legal adviser recommended the JSCI restrict itself to matters to do with security oversight, redact sensitive information and then refer the report to the National Assembly.
The JSCI ignored this advice, endorsed the top-secret classification and even recommended that any new information uncovered should be referred back to the JSCI for consideration behind closed doors.
It notes: “Matters relating to the allocation of tenders … should be referred to the office of the auditor general for a full investigation … However, the JSCI believes that because of the classification aspects of the subject matter, the auditor general should report on this investigation to the JSCI.”
Of even more concern is how the JSCI parrots the ministers’ line in their interaction with Madonsela.
A sign of things to come
In a veiled reference to her, the JSCI notes: “Entities which have investigative powers … should not be inappropriately motivated … to launch into an investigation on a matter which has already been assigned to another entity. It is therefore recommended that the executive give urgent attention to this matter … so that unnecessary parallel investigations can be avoided.”
This was precisely the argument the ministers used to try to discourage Madonsela’s Nkandla investigation.
In a letter to Madonsela in April, the state attorney referred to her meeting with the ministers and noted: “The purpose … was to discuss with you our concerns regarding parallel investigations ...”
He said a draft proclamation for the Special Investigating Unit to take up the matter had already been sent to the president and a request for an Nkandla audit had been addressed to the auditor general. “Our clients, therefore, propose … that you hold your investigation in abeyance until the processes embarked upon have been completed.”
Madonsela said in her affidavit this week that the auditor general’s audit had not materialised, nor had the Special Investigating Unit yet been authorised to investigate.
Source: Mail & Guardian
Tuesday, November 12, 2013
Protecting our public protector: We need to defend the space for Thuli Madonsela to work without fear or favour
Durban - The public protector is under siege from many quarters and has had little vocal support from citizens whose interests she is tasked to protect. We need to play our role in defending the space for her to work without fear or favour.
Our political environment reminds me of Machiavelli’s words that: “There is nothing more difficult, nothing more doubtful of success than to initiate new ways of things. For the reformer has enemies in all those who profit from the old ways, and only lukewarm support from those who would profit from the new way. This lukewarmness arising partly from fear of their adversaries, and partly from the incredulity of mankind, who do not actually believe in anything until they have had experience of it.”
Change agents like our public protector are up against a political culture that has still to grow into the promise of freedom embedded in our constitution. Holding those in public office accountable is only possible if citizens demand it and support organs of state responsible for protecting the public interest.
The biggest challenge facing chapter nine institutions such as the public protector is the tolerance by citizens of the confusion deliberately created by the ANC between the state, the government, the governing party and the president. When ministers in the security cluster invoke the risks to “state security”, that the release of the public protector’s report on the upgrades of President Jacob Zuma’s Nkandla residence would entail, are they focusing on the “state” or the person of the “president”?
The state represents the “commonwealth” that belongs to all citizens. How can this commonwealth’s security be put at risk by the exposure of improprieties in the procurement processes regarding the expenditure of a significant amount of taxpayers’ money in excess of R200 million? How does exposure of the suggested presence of a cattle kraal worth an estimated R1.2m jeopardise the security of our commonwealth as citizens?
It is the concealment of wrongdoing in public procurement processes that is putting our commonwealth at risk. In my travels across the country in villages, townships, universities, workplaces and corporate offices, my fellow citizens point to corruption as the biggest threat to our future as a society.
They identify corruption as the reason we have not come far enough and fast enough in living out our aspirations as a society in the past 20 years. Disclosure is like sunshine that disinfects hidden wrongdoing and eradicates corruption.
Young people who comprise the largest segment of our population can shape the country’s future in next year’s elections. Yet many are not sure that registering and voting will have any impact on their future. A big part of their misgiving comes from their perception that the state, government, ANC and president are an unmovable corrupt monolith that is destroying the country. This misgiving represents the biggest risk to our democracy.
The fearless work of the public protector’s office is essential to restoring the hope in young people that no one is above the law and that citizens’ rights matter and will be protected.
Moreover, there was a worrying phenomenon among poor communities this past weekend. In some areas, people refused to register or to allow registration to take place in their areas until their demands are met. They, too, do not distinguish between the IEC, a chapter nine institution, and the government.
We must stand up and defend the space for the key institutions of our democracy to operate without fear or favour. It is a question of “for whom the bell tolls” – it tolls for all of us. Today it is the public protector, tomorrow it is the judiciary, then it will be citizens without the protection of those key institutions. By then, it will be too late to stand up.
We have been through similar moments in our history and must not return there. When I was banned and banished to Tzaneen, my lawyer was told it was not in the state’s interests to disclose why I had been banished to that area.
Are we again ready to tolerate threats to our democracy in the name of “state security” as defined by those determined to secure their positions in power? Are we willing to protect abuse of power and resources in order to protect those in public office?
We can stop abuse of power by those who should be serving us who instead focus on serving themselves. We must not shy away from raising our voices in protection of the public protector so she can do her work to secure the public interest. We have seen how her report on the IEC chairwoman’s impropriety in procuring the lease of property for IEC offices has been attacked on procedural grounds. Are we to condone wrongdoing in this and many other matters through political procedural stonewalling? Where will these stonewalling tactics end?
We have seen enough signs of the president’s lack of capacity to take responsibility for executive action at too many levels: the Schabir Shaik case, his rape trial, Guptagate etc.
His performance in Parliament where he trivialised accountability for Guptagate into a joke about it not being realistic for him to know who is landing at our airports was an embarrassment. Waterkloof is an airforce base that we have afforded him and authorised other officials to use – to serve us. It is not to be used to curry favour with his friends.
We need a strong public protector to keep the executive branch of the state accountable to citizens. We have to protect the public protector so she can continue to protect the “commonwealth” from those invoking “state security” to put our democracy at risk. We dare not fail.
Mamphela Ramphele
Source: The Mercury
Our political environment reminds me of Machiavelli’s words that: “There is nothing more difficult, nothing more doubtful of success than to initiate new ways of things. For the reformer has enemies in all those who profit from the old ways, and only lukewarm support from those who would profit from the new way. This lukewarmness arising partly from fear of their adversaries, and partly from the incredulity of mankind, who do not actually believe in anything until they have had experience of it.”
Change agents like our public protector are up against a political culture that has still to grow into the promise of freedom embedded in our constitution. Holding those in public office accountable is only possible if citizens demand it and support organs of state responsible for protecting the public interest.
The biggest challenge facing chapter nine institutions such as the public protector is the tolerance by citizens of the confusion deliberately created by the ANC between the state, the government, the governing party and the president. When ministers in the security cluster invoke the risks to “state security”, that the release of the public protector’s report on the upgrades of President Jacob Zuma’s Nkandla residence would entail, are they focusing on the “state” or the person of the “president”?
The state represents the “commonwealth” that belongs to all citizens. How can this commonwealth’s security be put at risk by the exposure of improprieties in the procurement processes regarding the expenditure of a significant amount of taxpayers’ money in excess of R200 million? How does exposure of the suggested presence of a cattle kraal worth an estimated R1.2m jeopardise the security of our commonwealth as citizens?
It is the concealment of wrongdoing in public procurement processes that is putting our commonwealth at risk. In my travels across the country in villages, townships, universities, workplaces and corporate offices, my fellow citizens point to corruption as the biggest threat to our future as a society.
They identify corruption as the reason we have not come far enough and fast enough in living out our aspirations as a society in the past 20 years. Disclosure is like sunshine that disinfects hidden wrongdoing and eradicates corruption.
Young people who comprise the largest segment of our population can shape the country’s future in next year’s elections. Yet many are not sure that registering and voting will have any impact on their future. A big part of their misgiving comes from their perception that the state, government, ANC and president are an unmovable corrupt monolith that is destroying the country. This misgiving represents the biggest risk to our democracy.
The fearless work of the public protector’s office is essential to restoring the hope in young people that no one is above the law and that citizens’ rights matter and will be protected.
Moreover, there was a worrying phenomenon among poor communities this past weekend. In some areas, people refused to register or to allow registration to take place in their areas until their demands are met. They, too, do not distinguish between the IEC, a chapter nine institution, and the government.
We must stand up and defend the space for the key institutions of our democracy to operate without fear or favour. It is a question of “for whom the bell tolls” – it tolls for all of us. Today it is the public protector, tomorrow it is the judiciary, then it will be citizens without the protection of those key institutions. By then, it will be too late to stand up.
We have been through similar moments in our history and must not return there. When I was banned and banished to Tzaneen, my lawyer was told it was not in the state’s interests to disclose why I had been banished to that area.
Are we again ready to tolerate threats to our democracy in the name of “state security” as defined by those determined to secure their positions in power? Are we willing to protect abuse of power and resources in order to protect those in public office?
We can stop abuse of power by those who should be serving us who instead focus on serving themselves. We must not shy away from raising our voices in protection of the public protector so she can do her work to secure the public interest. We have seen how her report on the IEC chairwoman’s impropriety in procuring the lease of property for IEC offices has been attacked on procedural grounds. Are we to condone wrongdoing in this and many other matters through political procedural stonewalling? Where will these stonewalling tactics end?
We have seen enough signs of the president’s lack of capacity to take responsibility for executive action at too many levels: the Schabir Shaik case, his rape trial, Guptagate etc.
His performance in Parliament where he trivialised accountability for Guptagate into a joke about it not being realistic for him to know who is landing at our airports was an embarrassment. Waterkloof is an airforce base that we have afforded him and authorised other officials to use – to serve us. It is not to be used to curry favour with his friends.
We need a strong public protector to keep the executive branch of the state accountable to citizens. We have to protect the public protector so she can continue to protect the “commonwealth” from those invoking “state security” to put our democracy at risk. We dare not fail.
Mamphela Ramphele
Source: The Mercury
Parties denounce McBride's nomination for IPID head
Opposition parties have criticised a decision to recommend former Ekurhuleni metro police chief Robert McBride as head of the Independent Police Investigative Directorate (IPID).
The Democratic Alliance would "vehemently" oppose the appointment in Parliament, MP Dianne Kohler Barnard said on Tuesday. "IPID is responsible for investigating police officials in positions of authority and deals with sensitive information on a daily basis, thus the executive director must be a person free of scandal."
Lobby group AfriForum said Police Minister Nathi Mthethwa should resign for nominating McBride. "Minister Mthethwa, with this step, clearly indicated that the efficacy and integrity of the police is not a priority for him," said spokesperson Ian Cameron.
The Freedom Front Plus said the recommendation made a "farce and mockery" of Mthethwa's comments that he would eradicate corruption in the police. "IPID investigates corruption in the police and the head of this institution should not be a controversial person and should have an irreproachable character," spokesperson Pieter Groenewald said.
Christian Democratic Party leader Theunis Botha said the recommendation was "a serious challenge for being the sickest joke of the millennium".
"This makes a mockery of all the ANC promises that the policy of cadre deployment will be based on merit."
Shortlisted
Mthethwa said earlier that Cabinet decided at a meeting on Wednesday to recommend McBride as IPID executive director. "We believe Mr McBride's appointment as head of IPID will help this important institution to achieve [its] ... mandate," Mthethwa said.
He said McBride was the successful candidate following shortlisting, an interview process, and Cabinet's endorsement. "However, in line with the IPID Act, the appointment can only be finalised once Parliament has concurred."
Kohler Barnard said Mthethwa had requested that the portfolio committee on police consider McBride's nomination in a letter published in Parliament's announcements, tablings and committees on Tuesday morning. According to the IPID Act, the nomination must be considered within 30 parliamentary days.
She said the IPID should not be led by "such a controversial figure".
"The executive director must be suitably qualified for the position, not have previous convictions, and be a person of integrity."
Cameron said Mthethwa's decision had jeopardised the integrity of the police. "McBride had been previously arrested for arms smuggling, drunk driving and defeating the ends of justice. Now he must investigate and control corruption and malpractice in the police ...," he said.
Groenewald said Mthethwa was violating the public's trust with the recommendation. "McBride is extremely controversial and definitely not suitable for the position. The public should be able to trust the head of the IPID because a lot of complaints are against the [South African Police Service]."
Fired
Botha said Mthethwa should be fired. "Surely, no other minister is as determined to destroy his or her department," he said.
"If President [Jacob] Zuma does not now fire this bungling minister, the ANC should not be surprised when the world likens the Cabinet to a bunch of clowns."
McBride, who is a former MP and government official, won an appeal in March against a conviction of drunken driving and attempting to obstruct justice.
He was arrested in 2006 after crashing his official car on the R511 following a Christmas party. In September 2011, a Pretoria magistrate sentenced McBride to two years imprisonment for driving under the influence of alcohol and in effect three years' imprisonment for attempting to obstruct the course of justice.
In 1998, McBride was arrested in Mozambique on charges of gun-running. He spent seven months in a Maputo prison and was later cleared of all charges. He claimed he was investigating illegal gun-running with the National Intelligence Agency.
In 1999, McBride faced an assault charge after he, underworld boss Cyril Beeka, and another man visited an escort agency and allegedly assaulted an employee.
McBride was part of an Umkhonto we Sizwe group that bombed the Why Not Restaurant and Magoo's Bar in Durban on June 14 1986. Three people were killed and 69 were injured in the explosion. He was captured and convicted, and sentenced to death.
In 1992, he was released after his actions were classified as politically motivated. He was later granted amnesty at the Truth and Reconciliation Commission. – Sapa
Source: Mail & Guardian
The Democratic Alliance would "vehemently" oppose the appointment in Parliament, MP Dianne Kohler Barnard said on Tuesday. "IPID is responsible for investigating police officials in positions of authority and deals with sensitive information on a daily basis, thus the executive director must be a person free of scandal."
Lobby group AfriForum said Police Minister Nathi Mthethwa should resign for nominating McBride. "Minister Mthethwa, with this step, clearly indicated that the efficacy and integrity of the police is not a priority for him," said spokesperson Ian Cameron.
The Freedom Front Plus said the recommendation made a "farce and mockery" of Mthethwa's comments that he would eradicate corruption in the police. "IPID investigates corruption in the police and the head of this institution should not be a controversial person and should have an irreproachable character," spokesperson Pieter Groenewald said.
Christian Democratic Party leader Theunis Botha said the recommendation was "a serious challenge for being the sickest joke of the millennium".
"This makes a mockery of all the ANC promises that the policy of cadre deployment will be based on merit."
Shortlisted
Mthethwa said earlier that Cabinet decided at a meeting on Wednesday to recommend McBride as IPID executive director. "We believe Mr McBride's appointment as head of IPID will help this important institution to achieve [its] ... mandate," Mthethwa said.
He said McBride was the successful candidate following shortlisting, an interview process, and Cabinet's endorsement. "However, in line with the IPID Act, the appointment can only be finalised once Parliament has concurred."
Kohler Barnard said Mthethwa had requested that the portfolio committee on police consider McBride's nomination in a letter published in Parliament's announcements, tablings and committees on Tuesday morning. According to the IPID Act, the nomination must be considered within 30 parliamentary days.
She said the IPID should not be led by "such a controversial figure".
"The executive director must be suitably qualified for the position, not have previous convictions, and be a person of integrity."
Cameron said Mthethwa's decision had jeopardised the integrity of the police. "McBride had been previously arrested for arms smuggling, drunk driving and defeating the ends of justice. Now he must investigate and control corruption and malpractice in the police ...," he said.
Groenewald said Mthethwa was violating the public's trust with the recommendation. "McBride is extremely controversial and definitely not suitable for the position. The public should be able to trust the head of the IPID because a lot of complaints are against the [South African Police Service]."
Fired
Botha said Mthethwa should be fired. "Surely, no other minister is as determined to destroy his or her department," he said.
"If President [Jacob] Zuma does not now fire this bungling minister, the ANC should not be surprised when the world likens the Cabinet to a bunch of clowns."
McBride, who is a former MP and government official, won an appeal in March against a conviction of drunken driving and attempting to obstruct justice.
He was arrested in 2006 after crashing his official car on the R511 following a Christmas party. In September 2011, a Pretoria magistrate sentenced McBride to two years imprisonment for driving under the influence of alcohol and in effect three years' imprisonment for attempting to obstruct the course of justice.
In 1998, McBride was arrested in Mozambique on charges of gun-running. He spent seven months in a Maputo prison and was later cleared of all charges. He claimed he was investigating illegal gun-running with the National Intelligence Agency.
In 1999, McBride faced an assault charge after he, underworld boss Cyril Beeka, and another man visited an escort agency and allegedly assaulted an employee.
McBride was part of an Umkhonto we Sizwe group that bombed the Why Not Restaurant and Magoo's Bar in Durban on June 14 1986. Three people were killed and 69 were injured in the explosion. He was captured and convicted, and sentenced to death.
In 1992, he was released after his actions were classified as politically motivated. He was later granted amnesty at the Truth and Reconciliation Commission. – Sapa
Source: Mail & Guardian
Friday, October 18, 2013
New NPA boss Nxasana seeks clarity on Mdluli case
Mxolisi Nxasana says his decision to wait on an appeal court ruling to reinstate charges against Richard Mdluli is not a delaying tactic.
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Friday, August 30, 2013
Zuma appoints new NPA head
President Jacob Zuma has appointed Mxolisi Nxasana as the new national director of public prosecutions, says the presidency.
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Tuesday, August 20, 2013
Spying on political foes is an abuse of resources
THE latest intrigues about the abuse of intelligence services are not just tragic, they pose a serious risk to our democracy. Successive governments under both presidents Thabo Mbeki and Jacob Zuma have involved our national intelligence services in fighting battles within the African National Congress (ANC). In Mbeki’s term the issue was that of his perceived rivals — Mathews Phosa, Tokyo Sexwale and Cyril Ramaphosa — being accused of plotting against him.
Then we had Zuma, the presidential candidate, getting access to national intelligence information to discredit his corruption charges as a political plot to prevent his ascent to the Presidency.
The latest saga extends the abuse to include perceived threats to the government by citizens who are seen as critics of the governing party, or its competitors in the next election. Citizens who are seen as critics are labelled agents of foreign, western powers. The risks this abuse poses to our democracy is significant enough for us as citizens to stand up and demand a stop to it.
First, the national intelligence services should be fully engaged in assessing the real risks to the security of the state — not that of the governing party. Our borders are insecure and our natural resources are being destroyed, as evidenced by the more than 500 rhinos killed this year alone by syndicates who act with impunity. Foreigners stream into our country without any restraint because of poor border policing. There are issues of crime intelligence to stem violent crime — especially in poor communities — that should be priorities instead of political intrigues.
Second, the quality of the intelligence reports themselves speak of lack of professionalism. How does it happen that our intelligence services do not know about the nature of the National Endowment for Democracy and its office holders? How can we feel safe with such blatant lack of knowledge about international affairs?
Third, the political culture that sees no distinction between the governing party, the president, the government and the state is a threat to the pillars of our constitutional democracy of human dignity, equality and freedom. Ours is a multi-party democracy that should encourage the freedom of association, expression and the free flow of ideas. The discrediting of citizens as agents of foreign powers violates their rights and undermines their responsibilities as active citizens who should hold those in public office accountable. Criminalising political competition poses a serious risk to our democracy.
Fourth, the abuse of national intelligence also undermines our international standing as a constitutional democracy on a continent that, with a few notable exceptions, has yet to demonstrate its capacity to sustain vibrant competitive multi-party democracies. The difficulties of running competitive credible elections and transitions from one party to another on our continent arise from the unwillingness of incumbent governing parties to accept the possibility of change.
We have seen it in Kenya’s 2007-08 elections. We saw it in Zimbabwe’s successive elections culminating in this year’s elections that could not be described by Southern African Development Community election monitors as "free and fair" but "free and peaceful." "Free and fair" is apparently too high a bar to reach. We seem to settle for only being grateful that there was peace. Are we, as African citizens, content to lower the bar when it comes to our expectations of the conduct of those in political office?
South African citizens opted for a constitutional democracy because we want to aim high. We believed — and still do — that our country is capable of becoming a great society in every sense of that word. Ours was to be a place that would be known for its respect for human dignity, promotion of equality of all in the law and freedom for all. Invading the privacy of citizens to pursue party political interests goes against the very spirit of our freedom struggle and the ideals that so many of our heroes of the struggle fought and died for.
Abuse of intelligence services is a serious form of corruption and a wasteful expenditure of resources that should be building schools and homes, running efficient and effective health services and protecting citizens from crime. We as citizens need to stand firm against the erosion of our constitutional democracy and insist on holding those responsible accountable. Our society deserves better.
It is up to each one of us to stand together to defend and promote integrity in public service. It is in our hands to stop this abuse.
Source: Business Day
Then we had Zuma, the presidential candidate, getting access to national intelligence information to discredit his corruption charges as a political plot to prevent his ascent to the Presidency.
The latest saga extends the abuse to include perceived threats to the government by citizens who are seen as critics of the governing party, or its competitors in the next election. Citizens who are seen as critics are labelled agents of foreign, western powers. The risks this abuse poses to our democracy is significant enough for us as citizens to stand up and demand a stop to it.
First, the national intelligence services should be fully engaged in assessing the real risks to the security of the state — not that of the governing party. Our borders are insecure and our natural resources are being destroyed, as evidenced by the more than 500 rhinos killed this year alone by syndicates who act with impunity. Foreigners stream into our country without any restraint because of poor border policing. There are issues of crime intelligence to stem violent crime — especially in poor communities — that should be priorities instead of political intrigues.
Second, the quality of the intelligence reports themselves speak of lack of professionalism. How does it happen that our intelligence services do not know about the nature of the National Endowment for Democracy and its office holders? How can we feel safe with such blatant lack of knowledge about international affairs?
Third, the political culture that sees no distinction between the governing party, the president, the government and the state is a threat to the pillars of our constitutional democracy of human dignity, equality and freedom. Ours is a multi-party democracy that should encourage the freedom of association, expression and the free flow of ideas. The discrediting of citizens as agents of foreign powers violates their rights and undermines their responsibilities as active citizens who should hold those in public office accountable. Criminalising political competition poses a serious risk to our democracy.
Fourth, the abuse of national intelligence also undermines our international standing as a constitutional democracy on a continent that, with a few notable exceptions, has yet to demonstrate its capacity to sustain vibrant competitive multi-party democracies. The difficulties of running competitive credible elections and transitions from one party to another on our continent arise from the unwillingness of incumbent governing parties to accept the possibility of change.
We have seen it in Kenya’s 2007-08 elections. We saw it in Zimbabwe’s successive elections culminating in this year’s elections that could not be described by Southern African Development Community election monitors as "free and fair" but "free and peaceful." "Free and fair" is apparently too high a bar to reach. We seem to settle for only being grateful that there was peace. Are we, as African citizens, content to lower the bar when it comes to our expectations of the conduct of those in political office?
South African citizens opted for a constitutional democracy because we want to aim high. We believed — and still do — that our country is capable of becoming a great society in every sense of that word. Ours was to be a place that would be known for its respect for human dignity, promotion of equality of all in the law and freedom for all. Invading the privacy of citizens to pursue party political interests goes against the very spirit of our freedom struggle and the ideals that so many of our heroes of the struggle fought and died for.
Abuse of intelligence services is a serious form of corruption and a wasteful expenditure of resources that should be building schools and homes, running efficient and effective health services and protecting citizens from crime. We as citizens need to stand firm against the erosion of our constitutional democracy and insist on holding those responsible accountable. Our society deserves better.
It is up to each one of us to stand together to defend and promote integrity in public service. It is in our hands to stop this abuse.
Source: Business Day
Friday, December 7, 2012
Zuma on nationalisation and working with Ramaphosa
PRESIDENT Jacob Zuma has welcomed the prospect of working with businessman Cyril Ramaphosa as his deputy, saying "it would not be the first time" that he has worked with the man who was once tipped to take over from Nelson Mandela as president of the African National Congress (ANC).
Mr Zuma is set to be re-elected to lead the ANC at the party’s elective congress in Mangaung later this month. However, his current deputy, Kgalema Motlanthe — who has been nominated by three provinces and the youth league for the position of party president — is likely to lose out to Mr Ramaphosa.
Mr Ramaphosa has garnered more than 1,800 nominations for the position of deputy president, while Mr Motlanthe has received about 160 nominations to retain his current position in the party.
In an interview with the UK’s Daily Telegraph published on Thursday, Mr Zuma praised Mr Ramaphosa when asked about the prospect of working with the business tycoon.
"It would not be the first time I worked with Cyril Ramaphosa. When he was the secretary-general, I was his deputy. So it would not be the first time, if he is elected," Mr Zuma told the paper.
He said that he was ready for a second term as president of the ANC.
The party’s elective conference in Mangaung will also be keenly watched by business — with the hope that economic policy will be clarified.
One of the burning issues up for possible debate is that of nationalisation of South Africa’s mines. Mr Zuma told the paper that the party would increase the pace of economic reform but would not "break" existing businesses to do so.
"Nationalisation is not the ANC policy," he said. "There are fundamental issues that need to be dealt with. It would be useful to do it quickly but we’ve got to balance things because we don’t want to break things in order to move forward."
Source: Business Day
Mr Zuma is set to be re-elected to lead the ANC at the party’s elective congress in Mangaung later this month. However, his current deputy, Kgalema Motlanthe — who has been nominated by three provinces and the youth league for the position of party president — is likely to lose out to Mr Ramaphosa.
Mr Ramaphosa has garnered more than 1,800 nominations for the position of deputy president, while Mr Motlanthe has received about 160 nominations to retain his current position in the party.
In an interview with the UK’s Daily Telegraph published on Thursday, Mr Zuma praised Mr Ramaphosa when asked about the prospect of working with the business tycoon.
"It would not be the first time I worked with Cyril Ramaphosa. When he was the secretary-general, I was his deputy. So it would not be the first time, if he is elected," Mr Zuma told the paper.
He said that he was ready for a second term as president of the ANC.
The party’s elective conference in Mangaung will also be keenly watched by business — with the hope that economic policy will be clarified.
One of the burning issues up for possible debate is that of nationalisation of South Africa’s mines. Mr Zuma told the paper that the party would increase the pace of economic reform but would not "break" existing businesses to do so.
"Nationalisation is not the ANC policy," he said. "There are fundamental issues that need to be dealt with. It would be useful to do it quickly but we’ve got to balance things because we don’t want to break things in order to move forward."
Source: Business Day
Friday, November 30, 2012
Murder attempt signals ugly turn in North West
THE murder attempt on African National Congress (ANC) North West provincial secretary Kabelo Mataboge on Thursday night signalled an ugly turn of events in the embattled province, amid the possibility of a parallel provincial nominations conference on Friday, in preparation for the ANC’s national elective conference in Mangaung next month.
The SABC reported on Friday morning that unknown gunmen opened fire on Mr Mataboge when he arrived at his home in Mafikeng on Thursday night.
ANC North West spokesman Kenny Morolong said in a statement on Friday that police were "investigating a case of attempted murder".
The incident followed controversy on Thursday after the two opposing ANC factions in the province — one led by Mr Mataboge and another by provincial chairman Supra Mahumapelo — disagreed on the venue for Friday’s provincial nominations conference.
The group led by Mr Mahumapelo preferred a hall at Hartbeespoort Dam, while those supporting Mr Mataboge were pushing for the gathering to be held at the Civic Centre in Mafikeng.
Mr Mahumapelo has been the chief campaigner for President Jacob Zuma’s second-term bid in Mangaung, while Mr Mataboge has been associated with the group campaigning for Deputy President Kgalema Motlanthe to replace Mr Zuma.
Mr Morolong on Friday called on "members of the public with information to approach the law enforcement agencies", and for police to expedite their investigation "so that culprits of this hideous act are brought to book".
Source: Business Day
The SABC reported on Friday morning that unknown gunmen opened fire on Mr Mataboge when he arrived at his home in Mafikeng on Thursday night.
ANC North West spokesman Kenny Morolong said in a statement on Friday that police were "investigating a case of attempted murder".
The incident followed controversy on Thursday after the two opposing ANC factions in the province — one led by Mr Mataboge and another by provincial chairman Supra Mahumapelo — disagreed on the venue for Friday’s provincial nominations conference.
The group led by Mr Mahumapelo preferred a hall at Hartbeespoort Dam, while those supporting Mr Mataboge were pushing for the gathering to be held at the Civic Centre in Mafikeng.
Mr Mahumapelo has been the chief campaigner for President Jacob Zuma’s second-term bid in Mangaung, while Mr Mataboge has been associated with the group campaigning for Deputy President Kgalema Motlanthe to replace Mr Zuma.
Mr Morolong on Friday called on "members of the public with information to approach the law enforcement agencies", and for police to expedite their investigation "so that culprits of this hideous act are brought to book".
Source: Business Day
Bluster is no cover for state’s excess and drift
TO EVADE detailed explanations over gargantuan government spending on his rural hacienda, President Jacob Zuma and his acolytes have evoked everything from state secrecy and executive dignity to emotive claims about rural tradition and white prejudice. It’s a scatter-gun approach. Inconsistency seems to be developing into a defensive Cabinet habit. This succeeds only in tying the government into ever knottier complications.
When ministers begin to contradict each other, and sometimes even themselves, it betrays an increasing lack of central direction and conviction. Recently the government, despite a preoccupation with the "secrecy bill" and snooping foreign agents, has successfully exposed its own worst blunders. Police Minister Nathi Mthethwa resorted to court in an attempt to prevent an inquiry into policing in Khayelitsha, instituted by Western Cape premier Helen Zille at the request of community organisations. Mthethwa dismissed Zille’s commission as "politicking" and claimed there was no problem with vigilante murders in Khayelitsha.
Yet a report by national police commissioner Riah Phiyega, ironically lodged with Mthethwa’s own court papers, revealed there have been 78 vigilante killings in Khayelitsha in less than a year: an average of six a month. You don’t really need a vexatious official opposition when the government itself is quite capable of exposing its own "politicking" — and even provides the irrefutable evidence.
This was followed by a heated dispute about how many Gulfstream jet flights, at a cost of R200,000 a trip, Lindiwe Sisulu took when she was defence minister. Democratic Alliance MP David Maynier alleged she had taken 200 such flights between Cape Town and Pretoria. Sisulu, who is now the Minister of Public Service and Administration, replied that she used the luxury jet only 35 times and accused Maynier of having "a flea-infested body".
The question is: where did those irritating fleas come from? Maynier was never able to elicit particulars of Sisulu’s travel arrangements when she was in charge of defence, because she claimed such information was a state secret. Instead, he got his information from Sisulu’s Cabinet colleague. Defence Minister Nosiviwe Mapisa-Nqakula said her predecessor took 203 executive-jet flights. In other words, Sisulu blamed a mere oxpecker for ticks and fleas that originated from the ox itself: another sign of a government in disarray.
It is catching. Earlier this month, the South African Democratic Teachers' Union (Sadtu) issued a "stern warning" against civil society groups that have resorted to court action over the Limpopo textbook fiasco. Sadtu, claiming it could resolve this textbook issue, denounced the groups as "imperialist neoliberal forces … used as proxies to pursue certain political agendas". Two weeks later, Sadtu in Limpopo issued a statement expressing doubt that the Department of Basic Education could deliver school textbooks in time for next year.
The champion of this hydra-headed style is Agriculture, Forestry and Fisheries Minister Tina Joemat-Pettersson. During the farm unrest in the Western Cape, she sounded like rivals furiously at odds with one another: Joemat the fiery revolutionary versus Pettersson the bungling government functionary.
The strikers had "won", she thundered, because they made the government listen. And the deafest culprit? As minister responsible, herself. So if farm protests reignite next week, will Comrade Joemat chuck rocks at Minister Pettersson?
Above all, no sooner was there a row over whether Zuma had taken a bond on his rural domain than his friend and former funder, Vivian Reddy, rashly declared that Zuma should be commended for choosing Nkandla when he could pick the plushest areas in the country. That boast neatly drew attention to the fact that, at a cost of more than R250m, the president’s homestead, per square metre, probably is the nation’s plushest area.
Along Cape Town’s Atlantic seaboard, you can pick up an ocean-facing mansion with six bedrooms, staff quarters, infinity pool and similar status symbols for R20m. At the Nkandla rate, you could buy 10 of those in Bantry Bay, Camps Bay and any other bay — and still have enough left for a 1,119ha game farm in KwaZulu-Natal plus a brace of helicopters.
No amount of bluster about disrespect, foreign agents or covert agendas can make up for infighting, excess and drift.
It is no way to run a country. It is no way to end inequality.
Source: Business Day
When ministers begin to contradict each other, and sometimes even themselves, it betrays an increasing lack of central direction and conviction. Recently the government, despite a preoccupation with the "secrecy bill" and snooping foreign agents, has successfully exposed its own worst blunders. Police Minister Nathi Mthethwa resorted to court in an attempt to prevent an inquiry into policing in Khayelitsha, instituted by Western Cape premier Helen Zille at the request of community organisations. Mthethwa dismissed Zille’s commission as "politicking" and claimed there was no problem with vigilante murders in Khayelitsha.
Yet a report by national police commissioner Riah Phiyega, ironically lodged with Mthethwa’s own court papers, revealed there have been 78 vigilante killings in Khayelitsha in less than a year: an average of six a month. You don’t really need a vexatious official opposition when the government itself is quite capable of exposing its own "politicking" — and even provides the irrefutable evidence.
This was followed by a heated dispute about how many Gulfstream jet flights, at a cost of R200,000 a trip, Lindiwe Sisulu took when she was defence minister. Democratic Alliance MP David Maynier alleged she had taken 200 such flights between Cape Town and Pretoria. Sisulu, who is now the Minister of Public Service and Administration, replied that she used the luxury jet only 35 times and accused Maynier of having "a flea-infested body".
The question is: where did those irritating fleas come from? Maynier was never able to elicit particulars of Sisulu’s travel arrangements when she was in charge of defence, because she claimed such information was a state secret. Instead, he got his information from Sisulu’s Cabinet colleague. Defence Minister Nosiviwe Mapisa-Nqakula said her predecessor took 203 executive-jet flights. In other words, Sisulu blamed a mere oxpecker for ticks and fleas that originated from the ox itself: another sign of a government in disarray.
It is catching. Earlier this month, the South African Democratic Teachers' Union (Sadtu) issued a "stern warning" against civil society groups that have resorted to court action over the Limpopo textbook fiasco. Sadtu, claiming it could resolve this textbook issue, denounced the groups as "imperialist neoliberal forces … used as proxies to pursue certain political agendas". Two weeks later, Sadtu in Limpopo issued a statement expressing doubt that the Department of Basic Education could deliver school textbooks in time for next year.
The champion of this hydra-headed style is Agriculture, Forestry and Fisheries Minister Tina Joemat-Pettersson. During the farm unrest in the Western Cape, she sounded like rivals furiously at odds with one another: Joemat the fiery revolutionary versus Pettersson the bungling government functionary.
The strikers had "won", she thundered, because they made the government listen. And the deafest culprit? As minister responsible, herself. So if farm protests reignite next week, will Comrade Joemat chuck rocks at Minister Pettersson?
Above all, no sooner was there a row over whether Zuma had taken a bond on his rural domain than his friend and former funder, Vivian Reddy, rashly declared that Zuma should be commended for choosing Nkandla when he could pick the plushest areas in the country. That boast neatly drew attention to the fact that, at a cost of more than R250m, the president’s homestead, per square metre, probably is the nation’s plushest area.
Along Cape Town’s Atlantic seaboard, you can pick up an ocean-facing mansion with six bedrooms, staff quarters, infinity pool and similar status symbols for R20m. At the Nkandla rate, you could buy 10 of those in Bantry Bay, Camps Bay and any other bay — and still have enough left for a 1,119ha game farm in KwaZulu-Natal plus a brace of helicopters.
No amount of bluster about disrespect, foreign agents or covert agendas can make up for infighting, excess and drift.
It is no way to run a country. It is no way to end inequality.
Source: Business Day
Secrecy Bill gets NCOP approval, marches towards becoming law
The African National Congress is using its majority might to bulldoze the Protection of State Information Bill through Parliament. It now goes to the National Assembly after being passed by the upper house, where MPs were given suspicious, unmarked propaganda documents promoting the Bill’s “benefits”. By MANDY DE WAAL.
South Africa’s Protection of State Information Bill (POIB) was pushed through Parliament's National Council of Provinces (NCOP) by the ANC’s majority muscle late on Thursday 29 November 2012. The vote was 34 in favour of the draft legislation, while 16 members of Parliament voted against the Bill.
As MPs filed into Parliament’s upper house, the Right2Know campaign, a coalition formed in August 2010 to oppose the Secrecy Bill, handed out letters spelling out its concerns. “One of our campaign supporters noticed that the MPs were carrying documents themselves, and did an exchange,” says Murray Hunter, Right2Know’s spokesperson and organiser. “What we got hold of was a spin sheet with sound bites spinning certain aspects of the Bill. It was a document called “Myths about the Protection of State Information Bill” asserting that the Bill did indeed contain a public interest defence and would make it impossible to hide corruption.”
Murray says that the information used in the document – which had no source or logo on it – was filled with flawed and confused arguments. The Right2Know campaign said it wanted to know who had drafted the document and how it was funded.
Parliamentary leader for the DA, Lindiwe Mazibuko, said her biggest issue was the source of the anonymous document, and possible interference by the ministry of State Security. “We know that Siyabonga Cwele’s department has been interfering in the legislative process quite publicly by saying what NCOP members should and shouldn’t do with the legislation, which is in itself a violation of the separation of powers. That is problematic because once the law is in Parliament, it must be dealt with by MPs, and an MP’s job is not to do the bidding of government,” said Mazibuko. She added that if the document did indeed come from the ministry of State Security, it would be a “huge problem”.
“It is well known that Parliament has a research unit in every single portfolio committee, and every select committee, which has a secretariat and a researcher, and often they provide committee members with information. But there is something very suspicious about parties and MPs being given a script on their way into a debate, whether or not that script came from Parliament or a government department. It is suspicious when this document comes late in the game, when the legislation is being debated upon,” she said, and added: “At the moment we are concerned with some of the procedural problems with the Information Bill, and it is certainly one of the things we will look into.”
Earlier in the week, the controversial Bill – subject of much civil society protest – was adopted by an NCOP ad hoc Parliamentary committee which had been working on changes to the Bill for the last year. Mail & Guardian reported that opposition parties were given just 10 minutes to study the 22-page report on the ad hoc committee’s deliberations, and amendments to the Secrecy Bill. The opposition walked out and ANC members voted to send the Bill to a plenary session of the NCOP.
“It is clear that the Bll’s final process through the NCOP has been rushed and botched very badly,” said Nic Dawes, editor-in-chief of the Mail & Guardian. “Despite the initial willingness of members of all parties in the NCOP to do this properly and to try and hear the concerns that were raised by civil society, by lawyers, by the media, by activists, this potential to do a good job has been replaced by a mad rush to meet a self-imposed deadline. Serious damage has been done to the process as a result.”
Dawes said people weren’t able to properly consider the committee report earlier in the week and added it was likely that the remainder of the NCOP, and plenary session, hadn’t had a proper chance to consider the amended legislation in its entirety, nor to make an informed decision on it.
“The remaining options are for the National Assembly to do what it ought to have done all along, and that is to say that this legislation needs major revisions. It needs a proper public interest defence and a public domain defence. It needs to have an appropriate balance between freedom of information and the need to protect very narrowly and carefully defined state secrets, and it needs to be subordinate to the main piece of Constitutional legislation in this area, and that is the Promotion of Information Act,” Dawes said, adding that the National Assembly had one last chance to do the right thing.
“If they don’t, I hope a draft of MPs will send this for Constitutional review; I have been advised that they will try. Or alternatively that President Zuma does that, and then ultimately we will end up in the Constitutional Court, testing the legislation vigorously, and it is a pity that it looks like we are going to get to that place, but if need be that is what we will do,” Dawes said.
As the NCOP session got underway, State Security minister Cwele worked hard to sell the “benefits” of the Bill. Cwele, who had long pushed for the more draconian aspects of the Bill to remain intact, said the draft legislation sought to “advance the public interest by protecting certain classified information held by the state that if it became known to adversaries, would prejudice state programmes and hinder its ability to perform its duties.”
Reaching for a snappy quotable quote, Cwele addressed those scared of the implementation of the Bill into law. “To those who fear that the Bill may be abused, we say: the only thing to fear is fear itself.” (We presume Mr Cwele is FDR's fan - Ed)
BDLive reported that there was fierce opposition debate in the NCOP, with DA MP Alf Lees accusing the ANC of misleading the public by claiming extensive amendments to the Bill had ruled out the possibility of a state official using it to conceal wrongdoing. "Given the levels of corruption we see in government today, it is inevitable that the Bill will be used to cover up crime and corruption by those who risk exposure," he said, to ANC jeers.
Lees said the Bill still lacked a proper public interest defence clause to protect the media and whistle blowers, while his colleague Albert Fritz added, "This Bill is Stasi-like in its content and design."
Anton Harber, who directs the Journalism and Media Studies Programme at Wits University, agrees that there is still much to fear about the Bill. “It affects people in two ways. If one comes across information that needs to be out there in the public interest, clearly it raises the risks of being a whistle blower enormously,” said Harber.
“I have no doubt it will have a chilling effect on certain kinds of investigative journalism. It means an impact on the flow of information in the public arena. The penalties for whistle blowing potentially jump enormously here,” he added.
To understand the practical impact of the Bill, should it become law, Daily Maverick spoke to an activist in Kwazulu-Natal, a province where the political body count has been rising during recent months.
“We have a lot of political killings in the province at the moment, and in some cases even within the same political party,” said Desmond D'sa, a veteran political activist who’s currently in an organisational role for Right2Know in Kwazulu-Natal. “We believe that this is because of all the corruption that’s happening in this province. We have been asking for information related to this for a long, long time; for instance, we’ve asked for the Manase report in Durban, which reveals a lot of the shenanigans that going on.”
But the city refused to let activists, who report and organise against corruption, to have a copy of the report. “The city cites that whistle-blowers will lose their jobs or get killed and all of that, but that’s exactly what’s going on here in the ruling party. We believe that the Manase report is linked to these killings and will reveal a lot about what’s going on in the ANC in Kwazulu-Natal. The killings are about who is in power, who controls the resources, and who gets access to resources,” he said.
D'sa said even less “sensitive” information, like finding out about funding of housing projects, is blocked by officials who are already using the Bill (which hasn’t been passed in to law) to stop activists, the media or concerned citizens from getting information.
“If, for instance, you want to know what housing projects are being done and what funds have been made available for this in the city, you won’t get to the bottom of it. This is because the information is classified and not released. It is classified by people right at the top. It is going to make it impossible for people to find out what is really going on here in the province,” said D’sa.
The activist explained that the control of information made it impossible for civic society to do its job as a watchdog of government, and stated that the Bill was particularly threatening for whistle blowers.
“The NGOs and the civic organisations depend on whistle blowers to uncover corruption, and whistle blowers are crucial to the functioning of a democratic society and to help us get to the truth. However, the situation with whistle-blowers will get even worse because of the mounting fear. People will be fearful of being arrested, and now will be scared to release any kind of information because of the consequences,” D’sa said.
In terms of the proposed law, whistle blowers who reveal “corruption, malfeasance or wrongdoing by the State” can look at jail terms of up to 15 years. Furthermore, the Right2Know campaign also fears that whistle blowers may be charged under espionage clauses of the law which would see penalties of up to 25 years imposed.
In Kwazulu-Natal, this might be the case for activists investigating chemical fires and explosions. “In Durban the chemical cluster operates under the military, and under this new law, the military and the ‘securocrats’ in government won’t release any information at all. Even when people are getting killed or people are being affected by chemical emissions, this will not be released because they will deem it confidential and they will classify it,” D'sa told Daily Maverick.
“We have had over thirty explosions in the past few years, and fires in Durban, and we asked the department of labour to release certain forensic reports and they won’t do it. Can you imagine now if the law comes out? The flow of information with come to a standstill,” he added.
In the past, activists have been able to eke out some information through whistle blowers, but this will either dry up, or both activists and whistle blowers could face jail stiff terms. But D’sa and the Right2Know campaign are unrelenting.
“I hope that everyone realises that the democracy that everyone fought for and yearned for will be curtailed by this new law, as it is being bulldozed through Parliament. We are worried that we have gone right back, right back to the dark days of the Apartheid government, in bringing about these laws to stifle civil society, and to stifle ordinary people from standing up and asking the right questions, and getting the answers.”
“We will up the tempo of our protests. We are going to fight, even to the extent of being imprisoned. We are not going to shy away from standing up for the truth – even to the extent of being imprisoned because we need to fight this,” he added. DM
Source: Daily Maverick
South Africa’s Protection of State Information Bill (POIB) was pushed through Parliament's National Council of Provinces (NCOP) by the ANC’s majority muscle late on Thursday 29 November 2012. The vote was 34 in favour of the draft legislation, while 16 members of Parliament voted against the Bill.
As MPs filed into Parliament’s upper house, the Right2Know campaign, a coalition formed in August 2010 to oppose the Secrecy Bill, handed out letters spelling out its concerns. “One of our campaign supporters noticed that the MPs were carrying documents themselves, and did an exchange,” says Murray Hunter, Right2Know’s spokesperson and organiser. “What we got hold of was a spin sheet with sound bites spinning certain aspects of the Bill. It was a document called “Myths about the Protection of State Information Bill” asserting that the Bill did indeed contain a public interest defence and would make it impossible to hide corruption.”
Murray says that the information used in the document – which had no source or logo on it – was filled with flawed and confused arguments. The Right2Know campaign said it wanted to know who had drafted the document and how it was funded.
Parliamentary leader for the DA, Lindiwe Mazibuko, said her biggest issue was the source of the anonymous document, and possible interference by the ministry of State Security. “We know that Siyabonga Cwele’s department has been interfering in the legislative process quite publicly by saying what NCOP members should and shouldn’t do with the legislation, which is in itself a violation of the separation of powers. That is problematic because once the law is in Parliament, it must be dealt with by MPs, and an MP’s job is not to do the bidding of government,” said Mazibuko. She added that if the document did indeed come from the ministry of State Security, it would be a “huge problem”.
“It is well known that Parliament has a research unit in every single portfolio committee, and every select committee, which has a secretariat and a researcher, and often they provide committee members with information. But there is something very suspicious about parties and MPs being given a script on their way into a debate, whether or not that script came from Parliament or a government department. It is suspicious when this document comes late in the game, when the legislation is being debated upon,” she said, and added: “At the moment we are concerned with some of the procedural problems with the Information Bill, and it is certainly one of the things we will look into.”
Earlier in the week, the controversial Bill – subject of much civil society protest – was adopted by an NCOP ad hoc Parliamentary committee which had been working on changes to the Bill for the last year. Mail & Guardian reported that opposition parties were given just 10 minutes to study the 22-page report on the ad hoc committee’s deliberations, and amendments to the Secrecy Bill. The opposition walked out and ANC members voted to send the Bill to a plenary session of the NCOP.
“It is clear that the Bll’s final process through the NCOP has been rushed and botched very badly,” said Nic Dawes, editor-in-chief of the Mail & Guardian. “Despite the initial willingness of members of all parties in the NCOP to do this properly and to try and hear the concerns that were raised by civil society, by lawyers, by the media, by activists, this potential to do a good job has been replaced by a mad rush to meet a self-imposed deadline. Serious damage has been done to the process as a result.”
Dawes said people weren’t able to properly consider the committee report earlier in the week and added it was likely that the remainder of the NCOP, and plenary session, hadn’t had a proper chance to consider the amended legislation in its entirety, nor to make an informed decision on it.
“The remaining options are for the National Assembly to do what it ought to have done all along, and that is to say that this legislation needs major revisions. It needs a proper public interest defence and a public domain defence. It needs to have an appropriate balance between freedom of information and the need to protect very narrowly and carefully defined state secrets, and it needs to be subordinate to the main piece of Constitutional legislation in this area, and that is the Promotion of Information Act,” Dawes said, adding that the National Assembly had one last chance to do the right thing.
“If they don’t, I hope a draft of MPs will send this for Constitutional review; I have been advised that they will try. Or alternatively that President Zuma does that, and then ultimately we will end up in the Constitutional Court, testing the legislation vigorously, and it is a pity that it looks like we are going to get to that place, but if need be that is what we will do,” Dawes said.
As the NCOP session got underway, State Security minister Cwele worked hard to sell the “benefits” of the Bill. Cwele, who had long pushed for the more draconian aspects of the Bill to remain intact, said the draft legislation sought to “advance the public interest by protecting certain classified information held by the state that if it became known to adversaries, would prejudice state programmes and hinder its ability to perform its duties.”
Reaching for a snappy quotable quote, Cwele addressed those scared of the implementation of the Bill into law. “To those who fear that the Bill may be abused, we say: the only thing to fear is fear itself.” (We presume Mr Cwele is FDR's fan - Ed)
BDLive reported that there was fierce opposition debate in the NCOP, with DA MP Alf Lees accusing the ANC of misleading the public by claiming extensive amendments to the Bill had ruled out the possibility of a state official using it to conceal wrongdoing. "Given the levels of corruption we see in government today, it is inevitable that the Bill will be used to cover up crime and corruption by those who risk exposure," he said, to ANC jeers.
Lees said the Bill still lacked a proper public interest defence clause to protect the media and whistle blowers, while his colleague Albert Fritz added, "This Bill is Stasi-like in its content and design."
Anton Harber, who directs the Journalism and Media Studies Programme at Wits University, agrees that there is still much to fear about the Bill. “It affects people in two ways. If one comes across information that needs to be out there in the public interest, clearly it raises the risks of being a whistle blower enormously,” said Harber.
“I have no doubt it will have a chilling effect on certain kinds of investigative journalism. It means an impact on the flow of information in the public arena. The penalties for whistle blowing potentially jump enormously here,” he added.
To understand the practical impact of the Bill, should it become law, Daily Maverick spoke to an activist in Kwazulu-Natal, a province where the political body count has been rising during recent months.
“We have a lot of political killings in the province at the moment, and in some cases even within the same political party,” said Desmond D'sa, a veteran political activist who’s currently in an organisational role for Right2Know in Kwazulu-Natal. “We believe that this is because of all the corruption that’s happening in this province. We have been asking for information related to this for a long, long time; for instance, we’ve asked for the Manase report in Durban, which reveals a lot of the shenanigans that going on.”
But the city refused to let activists, who report and organise against corruption, to have a copy of the report. “The city cites that whistle-blowers will lose their jobs or get killed and all of that, but that’s exactly what’s going on here in the ruling party. We believe that the Manase report is linked to these killings and will reveal a lot about what’s going on in the ANC in Kwazulu-Natal. The killings are about who is in power, who controls the resources, and who gets access to resources,” he said.
D'sa said even less “sensitive” information, like finding out about funding of housing projects, is blocked by officials who are already using the Bill (which hasn’t been passed in to law) to stop activists, the media or concerned citizens from getting information.
“If, for instance, you want to know what housing projects are being done and what funds have been made available for this in the city, you won’t get to the bottom of it. This is because the information is classified and not released. It is classified by people right at the top. It is going to make it impossible for people to find out what is really going on here in the province,” said D’sa.
The activist explained that the control of information made it impossible for civic society to do its job as a watchdog of government, and stated that the Bill was particularly threatening for whistle blowers.
“The NGOs and the civic organisations depend on whistle blowers to uncover corruption, and whistle blowers are crucial to the functioning of a democratic society and to help us get to the truth. However, the situation with whistle-blowers will get even worse because of the mounting fear. People will be fearful of being arrested, and now will be scared to release any kind of information because of the consequences,” D’sa said.
In terms of the proposed law, whistle blowers who reveal “corruption, malfeasance or wrongdoing by the State” can look at jail terms of up to 15 years. Furthermore, the Right2Know campaign also fears that whistle blowers may be charged under espionage clauses of the law which would see penalties of up to 25 years imposed.
In Kwazulu-Natal, this might be the case for activists investigating chemical fires and explosions. “In Durban the chemical cluster operates under the military, and under this new law, the military and the ‘securocrats’ in government won’t release any information at all. Even when people are getting killed or people are being affected by chemical emissions, this will not be released because they will deem it confidential and they will classify it,” D'sa told Daily Maverick.
“We have had over thirty explosions in the past few years, and fires in Durban, and we asked the department of labour to release certain forensic reports and they won’t do it. Can you imagine now if the law comes out? The flow of information with come to a standstill,” he added.
In the past, activists have been able to eke out some information through whistle blowers, but this will either dry up, or both activists and whistle blowers could face jail stiff terms. But D’sa and the Right2Know campaign are unrelenting.
“I hope that everyone realises that the democracy that everyone fought for and yearned for will be curtailed by this new law, as it is being bulldozed through Parliament. We are worried that we have gone right back, right back to the dark days of the Apartheid government, in bringing about these laws to stifle civil society, and to stifle ordinary people from standing up and asking the right questions, and getting the answers.”
“We will up the tempo of our protests. We are going to fight, even to the extent of being imprisoned. We are not going to shy away from standing up for the truth – even to the extent of being imprisoned because we need to fight this,” he added. DM
Source: Daily Maverick
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