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

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

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

Bill places cap on legal fees

While KwaZulu-Natal law professionals approved certain aspects of the Legal Practice Bill, they are adamant that a complete overhaul of the profession is not the answer.

The bill, which proposes to give Justice and Constitutional Development Minister Jeff Radebe the power to cap legal fees and to abolish bar councils and law societies, has raised eyebrows in the profession. The bill has been on the backburner for more than 10 years, and was again submitted to Parliament last week. If passed in its current form, the bill would absorb the Law Society of South Africa and all bar councils, creating a new South African Legal Practice Council whose role would be to regulate the profession. The proposed council would report directly to the justice and constitutional development minister.

Law professionals in KZN said they have been practising as a self-regulated profession for generations within regulations set out by the various bar councils and law societies. The president of the KZN Law Society, Mxolisi Nxasana, said although he fully supported the government’s call for a unified legal system, he was critical of the profession being controlled by the state. “The bill, in essence, is very useful; however, regulation should be left to the legal profession itself. It should not be controlled by the government,” Nxasana said.

Nxasana also said the capping of fees would be in direct conflict with the Competition Act. He said one of the criticisms of the current system was that clients who wished to employ the services of an advocate had to do so via an attorney. The attorney then briefed the advocate at a cost to the client, he said. If the bill was passed, Nxasana said, the client would be able to approach an advocate directly, thereby cutting costs.

Nxasana said at the moment there were different rules for each province. “If the aim is to unify all the rules, so that the same rules are applicable throughout the country, I don’t see why the government would want to take over legal practitioners, as long as the rules are in line with the Attorneys Act,” he said. Responding to Justice Minister Jeff Radebe’s comments about legal fees in South Africa being higher than those in cities such as New York and Washington DC, Nxasana said: “Our legal fees are not that high, and it goes back to the issue of self-regulation.” Another concern regarding the bill was the clause allowing for ministerial appointees to serve on the council.

Nxasana said he was concerned the bill would allow Radebe to appoint non-lawyers to serve on the council. A Durban attorney said many in the legal fraternity believed that the bill was drafted in “haste”. “The bill should have more input from legal professionals. Whatever input has been given thus far has not been given serious thought,” he said. He also said if there were certain aspects the minister wanted to raise, such as candidate attorneys providing community service, he would be for it. He said he welcomed the idea because of the shortage of access to legal services, especially in rural areas. However, these concerns did not justify an overhaul of the profession. Regarding the capping of legal fees, the attorney said it would be impossible. “If the government caps legal fees – for drafting wills, for example – would banks also be capped, seeing that they also offer the service?” he asked. He said there were currently mechanisms in place to regulate legal fees.

Source: Iol

Appeal court ‘crossed limits on Simelane’

THE Supreme Court of Appeal had "overstepped the boundaries" drawn by the separation of powers principle when it set aside President Jacob Zuma ’s appointment of Menzi Simelane as prosecutions head, Justice Minister Jeff Radebe said in court papers yesterday. While Mr Zuma has said he would abide by the decision of the Constitutional Court on whether he had acted irrationally when he appointed Mr Simelane, Mr Radebe is opposing confirmation of the judgment by the Constitutional Court, and appealing against it.

Mr Simelane’s appointment in 2009 was met with a storm of criticism, because he had been severely rebuked by the former speaker of the National Assembly, Frene Ginwala, in her inquiry into the fitness of his predecessor, Vusi Pikoli, to hold office. In her report, Ms Ginwala said Mr Simelane’s conduct during the inquiry was "highly irregular" and "left much to be desired".

The Democratic Alliance (DA) took the matter to court, saying Mr Simelane was not fit and proper for the job and that the appointment was irrational and unconstitutional. The DA won the case at the Supreme Court of Appeal. Mr Simelane was then placed on special leave — pending the confirmation of the appeal court’s decision by the Constitutional Court. In supplementary legal argument filed yesterday, Mr Radebe’s counsel, Marumo Moerane SC, said the point of departure in determining whether the president had acted lawfully was the constitution and not the National Prosecuting Authority (NPA) Act.

Looking at the constitutional scheme, the purpose in this case was to find a national director of public prosecutions who would be able to secure the institutional integrity of the NPA — including that it exercised its functions without fear, favour or prejudice — while "simultaneously having a constructive working relationship with the minister". The appointment of a national director was a "policy driven" decision, and the constitution "provided for a (national director) who is a political appointee", although once in office he is bound to secure the institutional independence of the NPA, Mr Moerane said.

He also argued the appeal court had not actually found that Mr Simelane was not fit and proper — rather that the president had not sufficiently enquired into the allegations. "It is only where a court positively finds that (a national director) who has been appointed by the president is not fit and proper ... that it could set aside the decision of the president as being irrational."

Should the court not agree with his argument, Mr Moerane asked it to order that the matter be sent back to the president for him to look into whether Mr Simelane was fit and proper, rather than to set aside the appointment, as the Supreme Court of Appeal had done.

Source: Business Day

SA authorised arms for Syria

Justice Minister Jeff Radebe has confirmed that three contracting permits were authorised by SA for the supply of sniper rifles and other weapons to Syria between 2006 and 2010. Reports have appeared that Syria had tried to buy a large consignment of sniper rifles from SA in 2010.

The National Conventional Arms Control Committee (NCACC), of which Mr Radebe is chairman, confirmed in response to a parliamentary question from the Democratic Alliance (DA) that contracting permits were issued by SA, allegedly to South African companies, but said the weapons ordered were never delivered to Syria. DA defence spokesman David Maynier yesterday called for the matter to be investigated, saying that the NCACC should never have issued the permits. "The fact is that the NCACC should never even have considered authorising a contracting permit for the supply of sniper rifles and accessories to Syria. "The preamble to the law regulating conventional arms sales in SA says that we will not trade in conventional arms with states engaged in repression, aggression and terrorism," Mr Maynier said.

The NCACC said in its reply to the question raised in Parliament: "The NCACC approved 3 X Contracting Permits for the Government of Syria for … parachutes, 40mm multi-grenade launcher (and) sniper rifles with accessories. However, to date, there were no deliveries that were undertaken against these contracting permits."

Mr Maynier said while the permits were approved before the recent year-long crisis in Syria, poor human rights conditions had existed there for many years. "When considering whether to authorise permit applications, the NCACC is required by law to avoid the transfer of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms; avoid the transfer of conventional arms to governments that are likely to contribute to the escalation of regional military conflicts; and avoid contributing to terror and crime. Syria was not involved in a full-scale civil war when the permit was authorised but it was, and remains, one of the most repressive regimes in the world," Mr Maynier said.

The committee’s reply said SA had also issued contracting permits to the United Nations for RG-32 Scout mine-resistant 4x4 light armoured vehicles, used by the UN Disengagement Observer Force in Syria in 2004 and 2010. Mr Radebe’s spokesman, Tlali Tlali, was unable to comment yesterday as he was still investigating the matter.

Source: Business Day

Madonsela to investigate Motlanthe ‘bribe’ claim

PUBLIC Protector Thuli Madonsela will conduct a preliminary probe into a bribe scandal that may involve Deputy President Kgalema Motlanthe ’s partner, Gugu Mtshali, the protector’s office said on Tuesday. "Following a request by the deputy president, the public protector has decided to conduct a preliminary investigation into the above allegations with a view to establishing whether anyone in the Presidency or the Department of Trade and Industry might have participated in unlawful conduct involving the use of state resources or power," it said.

The protector would be able to determine whether "there are merits in the allegations that state resources and authority were employed to improperly enrich or advantage anyone for unlawful purposes". According to a report in the Sunday Times, Ms Mtshali was implicated in soliciting a R104m "bribe" to obtain government support for a South African company trying to clinch a R2bn sanctions-busting deal with Iran. Had it gone ahead, the deal would have put South Africa in violation of a United Nations Security Council resolution of 2010 prohibiting member states from supplying military-related products to Iran.

In light of the seriousness of the allegations, Mr Motlanthe took the unprecedented step of asking Ms Madonsela to investigate. The public protector’s credibility has been enhanced by high-profile investigations that led to the dismissal of two ministers last year. Ms Mtshali, former De Beers executive Raisaka Masebelanga and others allegedly met representatives of a company called 360 Aviation to solicit the bribe. The deal allegedly involved supplying US-made Bell helicopters and spare parts to the National Iranian Oil Company via South Africa. The US prohibits the sale of military equipment to Iran. The MD of 360 Aviation, Barry Oberholzer, was quoted as saying: "We believe we were being asked for a bribe … in exchange for government support." The outcome of the preliminary investigation is expected by April 15.

Last week, it emerged that the National Conventional Arms Control Committee had launched its own investigation into the Iran arms sale. Justice and Constitutional Development Minister Jeff Radebe, in his role as control committee head, was briefing the joint standing committee on defence when he fielded a question from David Maynier, Democratic Alliance defence spokesman, about reports that a local company was involved in the sanctions busting. Vanessa du Toit, a director at the conventional arms inspectorate, replying to the question, said an investigation of the Sunday Times allegations had already begun. She said there were 38 cases on the go involving infringements of the arms-control laws.

Source: Mail & Guardian

SCA: Simelane's appointment as NPA boss 'invalid'

The Supreme Court of Appeal has ruled that Menzi Simelane's appointment by President Jacob Zuma as the director of public prosecutions at the National Prosecuting Authority (NPA), was invalid. The case was brought to the appeals court by the Democratic Alliance, after its bid to have Zuma's decision to appoint Simelane as the NPA boss set aside failed in the North Gauteng High Court in Pretoria last year.

On Thursday morning, Judge Mahomed Navsa ruled that Simelane's appointment was "inconsistent with the Constitution and invalid". The judgment set aside the findings of the North Gauteng High Court, and ordered the president, Justice Minister Jeff Radebe and Simelane to pay the DA's costs. In its application, the DA argued that Zuma "acted outside of his powers by appointing a person who is not fit and proper to hold the office of national director of public prosecutions".

Justice ministry spokesperson Tlali Tlali said the ruling would be challenged in the Constitutional Court. "Naturally, we are disappointed but respect the court's judgment in this matter," said Tlali on Thursday. "We will study the judgment in order to understand its implications as it unfolds further. The court's order must be referred to the Constitutional Court for confirmation as provided for in terms of section 172(2) of the Constitution. A final determination has yet to be made as to what our legal attitude to this matter at the Constitutional Court will be."

The DA's Dene Smuts told the Mail and Guardian on Thursday: "We are very delighted by the judgment. We had major problems with his appointment. We did not think he was fit and proper for the position. We felt it was cadre deployment and are now looking forward to the president putting someone in the position who is fit and proper for the job." The foundation of the DA's case against Simelane was the "misleading and untruthful evidence" he gave during the 2008 Ginwala Inquiry, when he was the director general in the department of justice and constitutional development.

The inquiry looked at the fitness for office of Simelane's predecessor, Vusi Pikoli. Ginwala severely criticised Simelane in her final report, calling him arrogant and condescending towards Pikoli. Ginwala labelled his evidence before the inquiry "contradictory and without basis in fact or in law" and blamed him for suppressing the disclosure of information. This specifically referred to a legal opinion advising Simelane that he did not have authority over the NPA, as he had claimed.

Simelane's conduct was "irregular" and Ginwala even suggested he might have contravened the NPA Act by drafting a letter to Pikoli that instructed him to abort the imminent arrest of former police boss Jackie Selebi.

Although a formal inquiry was set up to inquire into Simelane's conduct before Ginwala in February 2009, Justice Minister Jeff Radebe declined to take disciplinary proceedings against him. Instead he was appointed as deputy national director of prosecutions. The DA argued that Zuma made Simelane's appointment based solely on his CV, without taking into account his questionable behaviour during the enquiry.

Navsa found that Zuma was remiss in not taking the time to consider all the facts about Simelane, saying in his judgment: "I accept that the president must have a multitude of daily duties and is a very busy man. However when he is dealing with an office as important as that of the national director of public prosecutions, which is integral to the rule of law and to our success as a democracy, then time should be taken to get it right." He went on to say: "On the available evidence the president could in any event not have reached a conclusion favourable to Mr Simelane, as there were too many unresolved questions concerning his integrity and experience."

The judgment was careful to prove precedent for judicial scrutiny of the president's appointment of a public prosecutor. In recent months, Zuma and other members of the executive have made several statements taking issue with an "unelected" judiciary passing judgment on executive decisions. During a farewell to former chief justice Sandile Ngcobo earlier this year, Zuma said: "We must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during elections." He added that the powers conferred on the courts could not be regarded as superior to the powers resulting from a mandate given by the people in a popular vote.

Source: Mail & Guardian

Mmakau Mining agrees to 51%

Mmakau Mining owned by Bridgette Radebe, wife of South Africa’s cabinet minister Jeff Radebe, has agreed to cede 51% of its shares in Zimbabwe based Eureka Gold Mine to locals.

Radebe’s Mmakau was previously a 75% shareholder after buying out Placer Dome while South African firm Shaft Sinkers owning the 25% balance.

Indigenisation minister Saviour Kasukuwere said the mining concern had now fully complied with the country’s empowerment laws.

“Radebe’s mine in Guruve has agreed to the 51% and that is now done,” Kasukuwere said in the capital.

The gold mine is a 65,000 oz per annum producer previously owned by Delta Gold Zimbabwe.

Kasukuwere added that his ministry was in the process of finalising community trust for Metallon Gold Zimbabwe, Unki Platinum Mine, while Mimosa Platinum Mine’s community scheme would be launched early next month.

“We are done with the Mimosa issue, we are just finalising on the date to launch the community trust,” he said.

Source: BusinessOnline

JSC bruising keeps Justice Mogoeng on the ropes

Justice Mogoeng Mogoeng's interview for the Constitutional Court chief justice position by the Judicial Service Commission in Cape Town on Saturday was no heavyweight fight. Despite the only contender's initial swagger as he entered the Eastern Ballroom of the International Convention Centre at around mid-morning to open his interview with an attack on those, especially the media and legal commentators, who had been critical of his nomination by president Jacob Zuma, this was a mismatch for Mogoeng. One where, especially in the session following lunch, he had to contend with several bruising jabs from commissioners over whether he had the intellectual capacity to be the "flag-bearer of the judiciary"; gender insensitivity; perceived homophobia; and his ethics.

Such was the flurry of punches that, at one point, the contender cracked, snapping at the JSC's chair, deputy chief justice Dikgang Moseneke, to stop being "sarcastic" when he was pushed on his "jurisprudential position" behind dissenting on the Le Roux v Dey Constitutional Court judgment. In that judgment, Mogoeng was the only justice of the 11 who heard the case to hold that it was defamatory to call someone gay. He didn't state why -- casting a shadow over both his judicial rigour and the way his attitude towards gays and lesbians was perceived. When asked about the matter by commissioner Engela Schlemmer, Mogoeng initially admitted, "I think I should have provided reasons. I erred in not providing reasons," he said. He then added he did not have sufficient time to "reflect on the matter" before potentially writing a judgment and hence, had not. When pushed by both Schlemmer and Moseneke on his "jurisprudential position" behind his initial dissent, Mogoeng was initially evasive and eventually cracked when called on the very specificity of the question, snapping at Moseneke to stop being "sarcastic". Eventually, unable to cough up a jurisprudential position, he backtracked, and said: "I say now: I should not have dissented."

It was a telling admission. And a body blow for a potential chief justice hoping to assert his intellect. It caused Koos van der Merwe, the IFP MP on the JSC, to ask Mogoeng if he had a short temper. The judge answered in the negative before being chastised by Van der Merwe for his "arrogance". "I have sat on this commission since the beginning and this is the first time in 15 years that an applicant is so arrogant that he has done what you have done. It points to your unsuitability as a chief justice," said Van der Merwe.

Gender activists in the massed public gallery could be seen visibly squirming as Mogoeng sought to defend his reduction of sentences in various rape cases he had presided over because, he said, rape "varies in degrees". Commissioner Krish Govender had, mindful of the "violence and trauma" inherent in "all" rape incidents, pushed Mogoeng on his reduction of sentences for convicted rapists -- especially since the judge had identified mitigating circumstances which in some cases included the perpetrator being married to the survivor and in another (S v Sebaeng) where the perpetrator had, as Mogoeng noted in his judgment, demonstrated a "tender approach" in raping a seven-year-old. Mogoeng asserted that he had merely noted the "degrees" of rape in his written judgments and also pleaded being a young judge who "was learning from my superiors and I followed my superiors" in reducing sentences. Asked by Moseneke if he would rewrite those judgments, Mogoeng demonstrated one of several Zuma-like moments with a "Maybe. I don't want to put myself on the spot. Maybe."

While Mogoeng was found wanting with rigorous questioning from commissioners such as Govender, Moseneke and Schlemmer, he also undoubtedly had several firmly in his corner. If the JSC interview were a boxing match, then minister Jeff Radebe would undoubtedly be Mogoeng's sweat-dabber in the corner, towel at the ready to dry the brow -- or staunch the blood -- between rounds.

Radebe and the three ANC MPs on the JSC, including deputy ministers Fatima Chohan (home affairs) and Ngoako Ramathlodi (correctional services) together with Advocate Dumisa Ntsebeza (one of four presidential appointees to the JSC) were instrumental in ensuring Mogoeng had breathing space between probing, questioning combinations with much softer questions and observations. After Mogoeng's defence had crumbled following his inability to provide any jurisprudential reasoning behind his dissension in the Le Roux v Dey judgment, Ramathlodi stepped up to note that the judge was a "mirror image" of himself. Both, noted Ramathlodi, had grown up poor, in the rural North West, but had succeeded in becoming "an inspiration" to the rural youth back home.

Earlier in the morning, many of these commissioners had argued against a submission by the DA's Hendrik Schmidt, that discussion should take place about whether nominations for more candidates ought to be reopened. Further discussion on the matter is likely to take place on Sunday at the Grand West in Hotel after the interview of Mogoeng, at the same venue, closes. Yet, despite the obvious partisanship of some members of the JSC, the complete irrelevance of others (especially those from the National Council of Provinces) and Mogoeng's early morning broadside at critics, the prospective chief justice must have felt like being at the end of Muhammed Ali's fists for long periods on Saturday. He was asked about his ethics in not recusing himself in cases prosecuted by his wife (there were no clear guidelines, but he did feel "discomfort" at the time) and his paucity of seminal, reported-upon judgments and ability to inspire and lead the Constitutional Court and the larger judiciary ("I have full confidence in my intellectual depth").

Jacob Zuma met Mogoeng Mogoeng for the first time at a dinner in Mafikeng in 2008

He also attempted to rebut perceptions that he was sympathetic to the executive by citing four cases where he had ruled against government and denied claims that he had a close relationship with Zuma that might have influenced the president's choice. Mogoeng said he had "no relationship whatsoever" with Zuma, and stated that a 2008 meeting with the president -- exposed by the Mail & Guardian -- had been their first and that he had met the president three times since then. But Mogoeng reiterated that he had spoken to Zuma only at their first meeting, and their last meeting, which took place when he was informed of the president's decision to nominate him for the chief justice position. Mogoeng added that he did not believe this would lead to a "corrosion of the separation of powers".

It was a bruising day for Mogoeng, but the bout is not over. The JSC hearing is set to continue on Sunday at 9am.

Source: Mail & Guardian

More dodgy deals in department of public works

The department of public works has paid R68-million so far in rental for an empty building to the property group the Mail & Guardian revealed last week was represented in major deals by President Jacob Zuma's son-in-law. In addition to the dodgy lease, we now have evidence suggesting that the Billion Group channelled a payment of R1-million to the ANC or its senior office bearers.

As we reported, the company, controlled by little-known tycoon Sisa Ngebulana, is at the centre of a row over a proposed R1-billion tender to build new offices for the department of public service and administration. Lonwabo Sambudla, the husband of Zuma's daughter Duduzile, hosted officials central to driving the tender at their wedding and joined Ngebulana in a meeting with top public works officials. Both he and Ngebulana admitted that Billion had paid him a commission on at least one previous deal. South African businessmen and dodgy officials are making hundreds of millions of rands from leasing scams. But how does it work? Watch our dummy's guide. Now it appears that the Billion Group has benefitted from another dubious lease and that it is assiduous in courting political favour.

Justice Minister Jeff Radebe confirmed earlier this month in a written reply to a parliamentary question from the Democratic Alliance's Debbie Schafer that the department of public works had leased a building in Pretoria for use by his department at a rental of R3.6-million a month. He did not mention the name of the company benefiting from this extraordinary arrangement.

The M&G has now confirmed that the R612-million deal was awarded to Phomella Property Investments, a subsidiary of the Billion Group. Phomella Property Investment bought the Salu building in Pretoria for R163-million from AgriSA. Investec Bank gave Phomella a R270-million bond on the property. According to the lease agreement, Phomella committed to have the new offices ready by December 30 2009. Although the company did not finalise the upgrade on time, the public works department has been paying a monthly rental of R3.6-million since January 2010. The new office, Radebe said, would be ready only in November this year, meaning the department would have spent R84-million to lease a building that had been standing empty.

Justice department spokesperson Tlali Tlali said he did not know why the public works department started paying before the building was occupied by the justice department. Appearing to distance the justice department from the decision, he said: "It is standard practice in the property industry to have rent payable upon occupation of the building when all tenant installation has been completed and the building has been handed over to the lessee. The department of public works could be in a position to provide clarity on the matter."

Public Works spokesperson Thamsanqa Mchunu said the department was obliged to pay the rental in line with the lease agreement as the landlord was not responsible for the delay. He said both the department of justice and public works took too long to sign the necessary documentation relating to the building. Mchunu claimed that the two departments and Phomella Property Investments had agreed that the landlord would reimburse all rental paid between November 2010 and November 2011, but did not explain why such a curious arrangement had been reached. Meanwhile, it has emerged that Sambudla is not the only politically connected recipient of Billion's cash.

The M&G has obtained bank and cellphone records confirming a dubious R1-million payment which Ngebulana told colleagues was a donation to the ANC. Asked via SMS whether to proceed with the payment of R1-million to "KZN energy solutions" that was being queried by First National Bank, Ngebulana answered: "Yep, it's all in order, why do they [the bank] want to know if they should as its FNB to FNB! Its ANC Luthuli House for Durban last weekend event donation! Will let you know when I'm back."

The ANC national general council was held in Durban from September 20 to 24 last year. It is not clear whether Ngebulana was suggesting that the payment was a donation toward the event or a payment arranged while party leaders were in Durban attending it. Unaware that the M&G was in possession of the SMS, Ngebulana first denied ever making any donation to the ANC event in Durban. "We as a company have never donated any money to the ANC towards any event held in Durban. As a business, we do from time to time agree to requests for donations from all political parties. Should we donate in a private capacity, this is a private and confidential matter. As an organisation, we have agreed to donate to all political parties equally in proportion to their national representation. KZN Energy Solutions is a consultancy business that we work with from time to time. We duly pay them for their services," said Ngebulana.

Confronted with the SMS on Thursday, Ngebulana initially denied sending it. He then said that KZN Energy Solutions performed "very serious work" for his companies, including forensic audits. He then added: "As a successful black business person, you are under pressure when asked for donations and things. You need to give or there is a lot of jealousy." Asked for corroborating information, Ngebulana referred the M&G to Myesh Pillay, who he said was a director of the company, but who is not listed as such in company records. Although Pillay confirmed that she worked at the company and said she knew Ngebulana and the Billion Group, she was unable to provide details of services provided to the Billion Group. Asked why there was nothing about a forensic audit on the company's website, Pillay claimed the website was under construction and that other services including the forensic services would be added to it at a later stage. KZN Energy Solutions is affiliated to other companies, including an entity that styles itself as a corporate consultant.

The payment is recorded in Billion's bank statement simply as "fees". ANC treasurer general Matthews Phosa said the party had never received a cent from Ngebulana. "I never asked for money from him [Ngebulana]. The ANC NGC was funded by a few people and I know all of them. He [Ngebulana] is not on that list. [If he claims he paid], then the money went to individuals not the ANC. People are abusing the name of the ANC for their own selfish reasons," said Phosa. Sources within the ANC familiar with its financial arrangements told the M&G Ngebulana had previously made payments to some senior ANC leaders, whose names are known to the M&G. Ngebulana this week dismissed the allegation of payment to senior ANC leaders as untrue.

Billion Group founder Sisa Ngebulana has kept a low profile, despite being one of the wealthiest black entrepreneurs of the post-1994 era. His name has not featured in the list that includes noted plutocrats such as like Patrice Motsepe, Cyril Ramaphosa and Tokyo Sexwale. But with assets estimated in the billions, the 45-year-old from the Eastern Cape is definitely up there.

A former Eskom employee, Ngebulana started a construction company, Afcon, in 1996, specialising in the construction of upmarket homes. In 1997, he consolidated all Afcon's activities into the Billion Group. Since then, he has made his mark in property development. Ngebulana is said to be close to politically connected individuals within both the ANC and government. His company has won several government tenders, including lease deals with the South African National Defence Force, the justice department, the National Prosecuting Authority and the City of Johannesburg.

Ngebulana has also built up as a R3.6-billion office and retail portfolio through acquisitions and development. Billion Group chief operating officer Mike Rodel said: "This is a remarkable achievement in a sector that has been difficult for black entrepreneurs to break into. Sisa has strengthened the team by introducing people with listed property credentials." One of Ngebulana's companies, the Rebosis Property Fund, was listed on the JSE in May this year. Ngebulana owns a R55-million house in Chartwell, which boasts a nine-hole golf course. Other assets include private jets, a helicopter, a Bentley, a Porsche and a Lamborghini.

Source: Mail & Guardian

Protector agrees to probe alleged arms sales to Libya

Public Protector Thuli Madonsela agreed this week to a request by Democratic Alliance MP David Maynier to investigate allegations that South Africa sold more than 100 sniper rifles and 50 000 rounds of ammunition to Libya in late 2010.

Maynier told the Mail & Guardian he believes that the investigation could establish whether the alleged sale, brought to his attention by reliable sources, was illegal. Madonsela informed Maynier on Thursday her office would commence with a "preliminary investigation".

Maynier was expelled from Parliament on Wednesday for asking Justice Minister Jeff Radebe, chairperson of the National Conventional Arms Control Committee (NCACC), whether he had allowed the sale and, "if the answer is yes, will the honourable minister tell this House what it feels like to have blood on his hands?"

An irate ANC raised a point of order that "talk of blood on hands was unparliamentary and out of order".

In November Maynier was ejected from the House after telling Defence Minister Lindiwe Sisulu that she was telling Parliament a "big political fib" after she refused to make available to MPs reports on conditions in the military. While the sale of the arms would have taken place before a United Nations arms embargo on Libya, Maynier said he did not believe it would have complied with the provisions of South Africa's legislation, which sets a high human rights standard. "There have been multiple reports that security forces used sniper rifles to fire on protesters in Libya," he told the M&G. "The company alleged to have exported the sniper rifles and ammunition not only lists Libya as a target market in Africa, but also exhibited sniper rifles at an arms fair in Libya in 2008. We understand that the export of sniper rifles and ammunition was authorised by the NCACC."

Maynier said that parliamentary oversight of conventional arms exports had "effectively collapsed". The NCACC quarterly reports had not been distributed to members of the portfolio committee on defence and military veterans or the joint standing committee on defence. "The NCACC last appeared before the portfolio committee on defence and military veterans on September 2 2009," he said. "Radebe should appear before the portfolio committee on defence and military veterans as soon as possible to properly account to Parliament. We have to get to the bottom of whether these sniper rifles and ammunition, or indeed any other weapons, were sold to Libya."

In February Radebe confirmed that the NCACC had "duly authorised arms trade between South African companies operating in defence-related industry and the Republic of Libya". However, he said in a press release that at the time the transaction was concluded with Libya, there was no evidence that there would be any political unrest in the country. "Some in the media or through the use of the media as a platform have been quick to conclude that the deaths that have been reported in Libya during the period of political unrest have a direct link with the arms sold by the South African companies to Libya," Radebe said. "There is no evidence to back up such a claim."

Radebe said that the transactions were authorised and complied with the guiding principles and criteria set out in the law regarding the ­conventional arms trade. However, the details of the transactions could not be provided because of confidentiality clauses in the ­contracts with Libya. In his letter to Madonsela, Maynier asked that she establish who signed the transaction. "I suspect that inter alia, given the human rights standard, obligation to avoid contributing to terrorism and crime and the end-user certificate reliability criteria, that the decision to authorise the transaction did not comply with guiding principles and criteria set out in the law regulating conventional arms sales in South Africa," he wrote.

Maynier also asked the protector to look at whether information concerning conventional arms sales could be lawfully withheld from the public, given the alleged "confidentiality clauses" in the contracts with Libya.

Source: Mail & Guardian

On selling arms to the Brother Leader Gaddafi

Muammar al-Gaddafi is clearly an unhinged, narcissistic, megalomaniac. The fact that he looks like a very scary, aged, version of Michael Jackson might be interesting and (for those of us not living in Libya) rather amusing, but the fact that he could appear on television this week and state that anyone who lifted their arm against the regime would be executed (those would be all you “rats” and “cats” who have had a cup of drugged Nescafe and was therefore acting as agents of both Western imperialist and al-Queda forces) suggest just what a thoroughly evil and unhinged man he is. He might have been generous to the ANC (and according to completely unconfirmed rumours, to President Jacob Zuma personally),  but that does not mean that he is not a very bad and dangerous man.

In its 2010 report on human rights abuses in Libya, Amnesty International concluded that despite some reforms the Libyan government continued to be involved in the systematic violation of the human rights of its citizens. It stated that freedom of expression, association and assembly continued to be severely curtailed and that the authorities showed little tolerance of dissent.

Critics of the government’s human rights record were punished. Former detainees at Guantánamo Bay returned to Libya by US authorities continued to be detained; one died in custody, apparently as a result of suicide. Foreign nationals suspected of being in the country irregularly, including refugees and asylum-seekers, were detained and ill-treated. An official investigation began into the killing of prisoners at Abu Salim Prison in 1996 but no details were disclosed and some of the victims’ relatives who had campaigned for the truth were arrested. Hundreds of cases of enforced disappearance and other serious human rights violations committed in the 1970s, 1980s and 1990s remained unresolved, and the Internal Security Agency (ISA), implicated in those violations, continued to operate with impunity.

Human Rights Watch also found that in 2010 the Libyan government continued to imprison individuals for criticising the country’s political system or its leader, Muammar al-Gaddafi, and that it maintained harsh restrictions on freedom of assembly and expression, including penal code provisions that criminalise “insulting public officials.” The Human Rights Watch also criticised the security forces for its violation of international human rights law.

Last year the South African National Conventional Arms Control Committee (NCACC) authorised arms trade between South African companies operating in defence-related industry and the Republic of Libya. The NCACC can only authorise such a sale if the requirements of section 15 of the National Conventional Arms Control Act  41 of 2002 are complied with.

Section 15 of this Act states, inter alia, that when considering applications for the sale of arms to other governments the Committee must “avoid contributing to internal repression, including the systematic violation or suppression of human rights and fundamental freedoms”; and must “avoid transfers of conventional arms to governments that systematically violate or suppress human rights and fundamental freedoms”. The NCACC must also consider various other factors not relevant to the current sale of arms to Libya.

On the face of the available evidence, it therefore seems as if the NCACC unlawfully authorised the sale of South African manufactured arms to the clearly unhinged Libyan dictator — who happened to have donated a lot of money to the ANC in the past. This is the kind of thing that one obviously expects from the United Kingdom or the USA governments who put profit above principle no matter what, but which our progressive ANC-led government outlawed in 2002.

As the NCACC is legally required not to authorise the sale of arms to a government that systematically violates the human rights of its citizens, one might wonder why they agreed to the sale of arms to Libya. The NCACC consists of “such Ministers and Deputy Ministers as the President may appoint” and such other persons as the President deems necessary. The NCACC is headed by the Minister of Justice, Jeff Radebe.

By far the most plausible — but obviously not sustainable — justification for the sale of arms to the Libyan government would be that the Libyan government actually did not systematically violate the human rights and freedoms of its citizens. The facts obviously demonstrate that such an argument would be close to laughable but that would have been the only plausible argument open to the South African government to justify the sale of arms to the Libyan dictator.

One imagines that another argument that some untalented and not very bright hack (like the state law advisor) might come up with to try and excuse the inexcusable would be that although section 15 is phrased in peremptory terms, the section is headed “guiding principles and criteria” and therefore that the various injunctions contained in section 15 did not have to be obeyed by the NCACC. But the use of the word “must” as well as the use of the word “and” in the second last subsection makes it clear that every single requirement mentioned in section 15 had to be adhered to. Unless one has a rather shocking lack of knowledge about how to read the provisions of an Act the content of section 15 is pretty clear.

Unfortunately it does not seem to be clear at all to Minister Jeff Radebe. Maybe the Minister decided that it would not be good for his image to claim that certain facts existed when they clearly did not. After all, this might have made him appear only slightly less unhinged than Muammar al-Gaddafi and his sons in various speeches and interviews over the past few days. The Minister therefore had to find another interpretation of the applicable law to justify what, to me, seems unjustifiable. In justifying the sale of arms to the Libyan government Minister Radebe stated that:

All decisions taken by the NCACC are preceded by investigations that are undertaken by the subcommittees established in terms of the Act. These subcommittees have a legal duty to report to and advise the NCACC on matters that relate to its business, including the arms trade. In this way we can confidently indicate that in all transactions that were undertaken and concluded with Libya, we had satisfied ourselves, through a meticulous process, that there was compliance with the guiding principles and the criteria laid down in our law. As we have said in the past, in making decisions the NCACC considers in aggregate, all principles reflected in our legislation. No single principle is considered in isolation of the others.

At the time when the transaction was concluded with Libya, there was no evidence available to the effect that there would be any political unrest in that country; this extends to the region (North Africa and parts of the Middle East). Similarly, there was no evidence that if political instability were to occur, that it would turn out violent in Libya or in any of the countries with which arms trade had been concluded. Some in the media or through the use of media as a platform have been quick to conclude that the deaths that have been reported in Libya during the period of political unrest have a direct link with the arms sold by the South African companies to Libya. There is no evidence available to back up such a claim.

This answer suggests that the Minister is either unfit for the office he holds as he lacks the basic ability to grasp a pretty clear and unambiguous instruction contained in the relevant piece of legislation, or that he and his Committee have deliberately flouted the law and is now trying to mislead the public about this matter.

Section 15 does not allow the Committee holistically to take into account all the factors set out in section 15 and then to make an overall assessment of whether, on balance, it would be advisable to sell arms to the country concerned. The statement by the Minister that no single principle should be considered in isolation of the others when considering whether arms should be sold to a foreign government is therefore clearly and even embarrassingly wrong.

When an act orders that our government must avoid selling arms to a government that systematically suppress human rights and freedoms there is not really room for manoeuvre. Minister Radebe seems to want to interpret the word “must” to mean “need not” — a mistake no person with even a passing knowledge of English and a modicum of integrity would ever make.

Minister Radebe is correct that section 15 instructs the NCACC not to sell arms to a government likely to use arms to suppress political unrest in that country and that it could not have been foreseen that the Libyan government would start massacring its own citizens this year. (After all, since the Libyan government was systematically suppressing the human rights of its citizens one would not have been able to predict that an uprising this year would have threatened the very existence of the regime and that the regime would have started to murder its citizens – regimes who deny their citizens basic human rights are often quite stable.)

But section 15 of the Act requires the NCACC to do far more than predicting whether arms would be used against the citizens of a country to whom we sell arms. The Act Requires that South Africa MUST avoid selling arms to a government that systematically suppress human rights — regardless of whether this will include the use of arms to murder their own citizens or not.

Now, there was no international arms embargo against Libya when South Africa sold that regime the arms under discussion. If the National Conventional Arms Control Act did not prohibit the government from selling arms to governments who are serial human rights abusers there would have been nothing illegal with the sale. But that is not currently the law in South Africa. The fact that the Minister can claim that our law states something that it clearly does not, is rather astonishing.

But I guess that is what happens if the political party one belongs to receive a large donation from a nasty, authoritarian and completely unhinged dictator: one sells arms to that dictator in flagrant violation of the laws one has passed oneself and then pretends that the law does not state what it actually does state.

Source: Constitutionally Speaking

Radebe 'kept info from Zuma'

Justice Minister Jeff Radebe is in the firing line after President Jacob Zuma's lawyer revealed in court this week that Radebe had placed very little information before Zuma when the president appointed Menzi Simelane as head of the National Prosecuting Authority. This could lead to Zuma's appointment of Simelane being declared invalid if the court accepts that a rational process wasn't followed in appointing the controversial former justice director general to head the NPA. "The president relied on a very senior minister [Radebe] who said this [Simelane] is a man of integrity. He did not interrogate the minister. He accepted it," advocate Nazeer Cassim SC, appearing for Zuma, told the North Gauteng High Court this week.

Cassim defended Zuma's appointment of Simelane on the limited ground of Zuma's "value judgement", against mounting evidence by the Democratic Alliance that Zuma wasn't fully briefed on Simelane's track record and negative findings against him before appointing him in November last year. The DA is challenging Simelane's appointment as prosecutions boss on the grounds that a rational process wasn't followed in appointing him, that Simelane is not a fit and proper person to head the NPA and that Zuma and Radebe had an ulterior purpose in appointing him.

After three days of argument, legal experts attending the case said the DA's argument that a rational process wasn't followed when Zuma appointed Simelane was the party's strongest point. Judge Piet van der Byl has reserved judgement. Senior advocate Owen Rogers, appearing for the DA, revealed in court that Zuma was not in possession of the following information before he appointed Simelane:

* A report by the Public Service Commission (PSC) recommending that Radebe institute a disciplinary hearing against Simelane based on the findings of the Ginwala inquiry;

* Consecutive qualified audits received by the justice department from the auditor general while Simelane was director general;

* A judgement by the Supreme Court of Appeal in a case brought by Pretoria Portland Cement against the Competition Commission while Simelane headed the commission. The judgement found Simelane had used deception in gaining access to PPC's premises and was "scathing" about the commission's abuse of power; and

* Criticism by the Constitutional Court of Simelane's actions in the case brought by businessman Hugh Glenister to save the Scorpions. Judges Kate O'Regan and Zac Yacoob criticised Simelane for not responding "fully, frankly and openly".

This wasn't challenged by Cassim, who turned his attention to Radebe and said Zuma didn't "second-guess" the minister. Cassim argued that the test for "fit and proper" was subjective and that Zuma accepted Simelane's fitness to hold office based on his personal value system, which he juxtaposed with the DA's "liberal tradition". "Someone raised in a liberal tradition has a very different value system from someone who came into power in a socialist structure. The court will not impose a value system as if it is a universal criteri[on]," said Cassim. He argued it was "very difficult to find someone who would suit the ANC profile with 30 years of prosecuting experience". Radebe, a "very senior minister", told Zuma that in his judgement "Simelane is a good man" and Zuma believed him.

Van der Byl pushed counsel on what process Zuma followed in appointing Simelane and whether the president had access to all relevant information to make a rational and legal appointment. In response to a statement by advocate Marumo Moerane SC, appearing for Radebe, that Zuma was "fully briefed", Van der Byl asked: "How full?" Moerane replied: "The minister [Radebe] says he briefed the president fully."

Rogers slammed Radebe for "brushing off" the PSC report and its recommendation that Simelane should face a disciplinary hearing. Former justice minister Enver Surty referred the Ginwala inquiry's report to the PSC, which considered the report and recommended that Simelane face a disciplinary hearing. In his affidavit before court Radebe admits that he unilaterally decided not to charge Simelane because the PSC had not considered submissions made by Simelane's advocates.

Motivating why he did not present the PSC report to Zuma, Radebe states: "I did not consider it legally defensible for me to take the recommendations of the PSC to the president, knowing that Simelane's views had not been taken into account." Radebe also claims he "was not legally obligated to furnish the president with any documentation that I had recourse to as I informed myself of the qualities of Simelane, nor was the president obliged to request such documentation from me". The DA slams Radebe for "blindly" accepting Simelane's version and for withholding from Zuma the PSC's report about Ginwala's findings.

After Simelane's appointment, and after the DA had launched its application, Zuma read extracts from the Ginwala inquiry's transcript and report. He states under oath: "I submit that in view of, at times, the speculative nature of the enquiry's findings in this regard, and the absence of a finding of malice or dishonesty by the enquiry, I considered the report in the light of the knowledge I have of Adv Simelane ... and found that these findings did not detract from his suitability for appointment."

Rogers, for the DA, argued Simelane's appointment as national director of public prosecutions was a done deal, regardless of the PSC's findings. Although Zuma states in his affidavit that he supported Radebe's handling of the PSC report, Cassim told the court he would not argue that Radebe's disregard of the PSC's recommendation was correct. "I agree with Mr Rogers [that] the PSC said give him [Simelane] a hearing. But the minister of justice took a decision it was not necessary to give him a hearing. Even if he was wrong, the decision [by Radebe] is not the subject matter of this review."

Source; Mail & Guardian

ANC chiefs caught up in R200m tender trap

Two senior ANC bosses have been drawn into a R200-million tender scandal in which the Hawks arrested eight people and raided their houses last week. KwaZulu-Natal premier Dr Zweli Mkhize and ANC Northern Cape chairman John Block played key roles in multimillion-rand deals awarded to Cape Town firm Intaka. Block is Northern Cape finance, economic development and tourism MEC. Mkhize is provincial ANC leader in KwaZulu-Natal.

The Hawks raided Block's house and offices in Kimberley in August last year, allegedly seizing incriminating documents. Block's spokesman, Derek Martin, this week confirmed the raid. Court papers seen by the Sunday Times implicate Block, who served as acting Northern Cape premier twice this year, and Ithala bank CEO Sipho Shabalala in the massive corruption case that spans at least five South African provinces, Angola, Namibia, Democratic Republic of Congo, Nigeria and Pakistan.

Last Wednesday, the Asset Forfeiture Unit and police priority-crimes directorate the Hawks seized R200-million in assets in simultaneous dawn raids in Durban, Pietermaritzburg and Cape Town. They arrested five businessmen in Cape Town, including Uruguayan tycoon Gaston Savoi, and three senior government officials in KwaZulu-Natal. Savoi's Ferrari, Maserati, Lear Jet and properties were attached.

Shabalala was suspended pending the outcome of the investigation. The suspects are accused of colluding to award massive tenders without proper tender processes, inflating prices of goods and services rendered by up to seven times and creating shell firms for kickbacks for officials, court papers show. The alleged fraud centres on water-purification and oxygen plants supplied by Gastoi firm Intaka for KwaZulu-Natal and Northern Cape health and local government departments. Block is Gastoi's partner in Intaka's Northern Cape branch.

Mkhize, as KwaZulu-Natal economic affairs MEC, wrote in July 2005 to then local government and traditional affairs MEC Mike Mabuyakhulu, asking him for R43.2-million from the poverty alleviation fund to buy water-purification plants from Intaka. Intaka allegedly sold a plant valued at R420000 for R4.9-million to the provincial health department. Mkhize wrote: "It is my view that it would be more than justified to fund the purchase of this equipment from the poverty alleviation fund, which is intended inter alia to fund exactly this type of social and economic related infrastructure." Yesterday, Mkhize spokesman Ndabezinhle Sibiya said: "It is incorrect to suggest that Mkhize 'put pressure' to push the deal. Mkhize expected that the processes would be expedited. No instruction for illegal or criminal acts was given. "Dr Mkhize therefore denies in the strongest terms suggestions that he was involved in the facilitation of a fraudulent deal, and categorically denies any wrongdoing on his part."

KwaZulu-Natal's health department spent R44-million on water-purification plants and the Northern Cape government R112-million on water-purification and oxygen plants Intaka supplied. Investigators believe up to R16-million was paid in bribes in KwaZulu-Natal and R13-million in the Northern Cape. Shabalala and Block were not arrested or charged , but properties and luxury vehicles owned by Shabalala were attached. Investigators said more arrests, including Shabalala's, were imminent. It is not clear if Block faces arrest or if Mkhize will be questioned.

Justice minister Jeff Radebe said last week "more arrests would follow" in the Northern Cape. Hawks investigator Petrus du Plooy said in an affidavit "Intaka was involved in similar and related criminal activities in the Northern Cape", involving its health department. Intaka sold the department 11 plants for R47-million "at similarly excessive unit prices. Intaka was entitled only to charge R7.975-million."

Letters and agreements between Intaka, Savoi and Northern Cape and KwaZulu-Natal health officials were seized, and also invoices for "several payments made by Intaka to and on behalf of several officials and/or their related business entities". In an affidavit, lead Hawks investigator Clarence Jones said: "These commissions (are) just another way of giving kickbacks, paying bribes to the officials."

Source: Times Live

Has Enver Daniels met Jeff Radebe lately?

Paul Hoffman from the Institute for Accountability wonders whether government talks to government when it sets about messing with the free flow of information. It is hard to believe that the Minister of Justice, Jeff Radebe, and the Chief State Law Advisor, Enver Daniels, are part of the same administration working together toward the realization of the founding values of the country.

Ensuring “accountability, openness and responsiveness”, as section 1(d) of the Constitution puts it, is at the core of their mission.

The Minister, addressing the SANEF meeting last weekend, put it well when he said: “As government we will not treat you the same way as the apartheid regime treated Nat Nakasa?we will not enact laws detrimental to your cause, including the current legislation being debated?I will ensure that any law that comes into being must be in conformity with our Constitution.” Quite so.

Now contrast the contribution by Daniels this week to the debate on the contentious Protection of Information Bill in which he, unusually so, personally participated. He dismissed critics of the bill as “emotional and hysterical” before delivering himself of this gem: “While they [the critics] raise valid points, we don’t agree with them.” He disagrees with “valid points” at his peril if, as seems likely, the disputed provisions of the bill are held up for constitutional scrutiny in Court.

Among the valid points raised are those complaining that the bill does nothing to ensure that which the state is bound to ensure, namely, compliance with the principles of accountability, openness and responsiveness. Widely framed definitions, especially that of “the national interest” (which can cover a multitude of sins and has no place in the bill), and the discretion given to officials to be judges in their own classificatory cause ought to be giving cause for pause, not an unseemly rush to finalize the bill by September, meanwhile rubbishing carefully considered submissions made to parliament by highly qualified and very learned critics.

In an open democracy protection of information can not be allowed to trump access to information, the latter being guaranteed to all in the Bill of Rights. Reasonable and justifiable limitations on access to state information in the interests of national security and in accordance with the constitutional governing principles set out in section 198 ought to be kept to a minimum in the quest for transparency.

Daniels ought to know that the entire public administration is constitutionally enjoined to foster transparency by “providing the public with timely, accessible and accurate information” [section 195]. He is hardly encouraging the public to participate in policy making (another principle governing him) by attacking the critics of the bill rather than dealing properly with the “valid points” he concedes they make. He does his high office and the Minister a disservice by playing the man instead of the ball/bill.

Paul Hoffman SC

Director, Institute for Accountability in Southern Africa

New law may force reporters to reveal sources

The government was finalising proposals regarding a section of the Criminal Procedure Act which could force journalists to reveal confidential sources, Justice Minister Jeff Radebe said in Johannesburg on Saturday night. Speaking at the annual general meeting of the SA National Editors' Forum (Sanef), Radebe emphasised that the government would not treat the media in the manner it had been treated during the apartheid years. "As a minister of justice I want to assure you that any [new] law must be in conformity with the Constitution," the minister said.

Radebe was speaking against the backdrop of increased concerns at the ANC's proposed introduction of a state appointed media appeal tribunal to adjudicate complaints against the press. Radebe said the ANC had been deliberating on various issues in preparation for its national general council meeting in Durban later this year. "One of these is that of information communication technology and the media." Referring to an ongoing discussion of Section 205 of the Criminal Procedure Act and other sections affecting journalists, Radebe said: "We are in the process of finalising proposals in this regard."

The SA Law Commission would also soon present its finding of research on this and other laws that the media found problematic.

Source: Mail & Guardian

Menzi guts the NPA

Menzi Simelane, the national director of public prosecutions, has “totally dismantled” the successful Specialised Commercial Crime Unit (SCCU), say well-placed sources, and removed and redeployed its head, advocate Chris Jordaan SC.

The acclaimed Asset Forfeiture Unit (AFU) almost went the same way during restructuring by Simelane, said the sources, and its head, Willie Hofmeyr, kept his post only because Justice Minister Jeff Radebe intervened last week.

Hofmeyr is deputy national prosecutions director and head of the independent statutory Special Investigations Unit. Jordaan had been with the SCCU since its inception in 1999.

Simelane has claimed that the restructuring is to promote service delivery, but the commercial crime unit’s conviction rate has never fallen below 92%.

Morale is said to be plummeting at the national prosecuting authority (NPA) and many senior staff are hunting for jobs elsewhere. About 16 legal figures have received notices that they are to be redeployed.

NPA sources said the restructuring of the SCCU was “already done and dusted” by the time Radebe intervened.

From April 1 the SCCU’s name has been changed to the Commercial Crime Component (CCC). Although there used to be a national reporting structure, the unit no longer has a head and its regional offices now report to the provincial directorates of public prosecutions.

It has been split into two, one section dealing with complex commercial-crime cases and the other with “run-of-the mill” cases and general litigation.

Sources complained that the restructuring was ill-conceived and had placed a heavy burden on those responsible for general litigation because there were too few staff.

‘Why has it been split?’

“It’s a practical question. Why was the commercial crime unit not left alone? Why has it been split?” said an official close to the developments, who asked not to be named. “If it’s not broken, why fix it?”

Jordaan has been moved to the NPA’s Pretoria offices and has apparently been unofficially told that he will now be the national coordinator of commercial crime. But sources said he no longer has contact with the unit.

The Mail & Guardian has also learned that Simelane has told Hofmeyr to choose between heading the AFU or the SIU.

NPA sources said they felt Simelane was hell-bent on purging senior managers and implementing restructuring plans at breakneck speed. They described him as a “terrible manager” who had been dogged by controversy since President Jacob Zuma appointed him in December and expressed grave concern about the motivation for the restructuring.

Worries about his leadership peaked in March after he ordered the AFU not to try to seize millions of rands in alleged bribes from arms multinational BAE Systems, held offshore by arms-deal kingpin Fana Hlongwane.

Three weeks ago opposition parties raised strong objections to a five-year NPA strategic plan tabled in Parliament. The plan stated that the AFU had been disbanded and was included as a division in the regional offices.

This week Simelane told the M&G the clause in the “draft strategic plan was an unfortunate drafting error”.

On why he had not consulted Radebe, he said the document had not been finalised.

‘NPA needs to transform itself’

Questioned on the purpose of restructuring, he said: “Your questions seem to suggest that the NPA is fully transformed and therefore there is no longer a need. The idea is furtherest from the truth. To reiterate—the NPA needs to transform itself to meet the needs of society in contributing to the criminal justice system, with a view of enhancing public confidence.

“The structure is being streamlined to ensure a focus on core functions, with experienced prosecutors utilised in the delivery of core services. The aim is to show significant improvement to service delivery.”

Radebe’s spokesperson, Tlali Tlali, said Simelane had explained to the minister that he told Parliament’s justice committee that the strategic plan still needed ministerial approval.

“The minister accepted the national director of public prosecution’s explanation and the bringing of disciplinary proceedings did not arise,” he said.

But sources said there was “guerrilla warfare” at the NPA. Manie de Clercq of the Public Servants’ Association said plans to redeploy three senior NPA advocates appeared to have been put on hold.

“But we haven’t received anything in writing from NPA to say it has withdrawn the redeployments, so we’ll still go through the process of conciliation,” said De Clercq.

Who would have an issue?

South Africa has won international recognition for the way it has implemented the forfeiture of proceeds from crime, so well-placed criminal justice sources insist that there must be hidden agendas behind the “bizarre” schemes to close the old Asset Forfeiture Unit.
AFU figures for 2009-2010 show:

The value of new restraints—orders for the freezing of physical assets and cash—was R491-million;
The value of confiscation or forfeiture orders was R184,7-million;
The value of deposits into the criminal assets recovery account was R51,7-million; and
Orders in favour of the victims of crime amounted to R52,3-million.

The AFU has been involved in many high-profile cases, including:

The David King tax fraud case, in which court orders were secured in the United Kingdom and Guernsey to freeze accounts of millions of rands that King allegedly removed from South Africa;
The Jabulani Mabaso corruption case, in which assets of R191-million were frozen. The state alleges he defrauded the KwaZulu-Natal education department of R200-million; and
The Schabir Shaik graft case, in which assets of R41-million were frozen.

Source: Mail & Guardian

Superior courts bill meets with praise and caution

The legal fraternity has hailed the reworked Superior Courts Bill for ensuring the administrative independence of the courts, but warned that the enhanced power it gives the Constitutional Court could prove fraught.

The long-awaited bill, withdrawn by then President Thabo Mbeki in 2006 amid an outcry, was finally approved by Cabinet this week with any vestige of initial attempts to place the administration of courts under the Justice Minister understood to be removed. In its new incarnation, the bill makes the office of the Chief Justice responsible for running the country's courts, including the magistrates' division.

Justice and Constitutional Development Minister Jeff Radebe said that this provision would be reality before the end of the year and would enshrine the "independence, impartiality and dignity of the judiciary".

Legal experts welcomed it as a radical departure from the Mbeki-era draft that was slated by the opposition as seeking to give the justice minister the power to hand-pick judges and the ruling party the ability to sideline those deemed unsympathetic to its cause. "The threat to the independence of the judiciary has been completely averted," constitutional law expert Pierre de Vos said on Thursday, after Cabinet announced it had approved the bill.

But the chairperson of the General Council of the Bar, Patrick Mtshaulana, said that it would be misguided to see the new legislation as purely the product of the Zuma administration and blame Mbeki for all that was once wrong with it. He pointed out that after withdrawing the bill, Mbeki put it in the hands of Radebe, as head of the African National Congress's (ANC's) policy unit, with a brief to take into consideration the criticism heaped onto the legislative project.

That fed into resolutions taken at the ruling party's watershed Polokwane conference and into the final version of the bill, that has won rare praise from the Democratic Alliance for "restoring the proper relationship between the executive and judicial branches of the State".

Said Mtshaulana: "I understand that this minister does not want to in any way effect the independence of the judiciary and it is consistent with this purpose." He voiced concern, however, about the bill's confirmation of the Constitutional Court as South Africa's new Apex Court, a move that breaks with the Commonwealth and European justice models to borrow from the American system.

Mtshaulana argued that the creation of an Apex Court contradicted the agreement reached in negotiations on the constitution at Kempton Park that made the Constitutional Court the final authority on constitutional matters but conferred on the Supreme Court of Appeal an equal status on all other matters. The bill removes the distinction and seals the jurisdiction of the Constitutional Court as the highest court in the land for all litigation. The prospect has divided legal experts for years, with some warning that it would put the ANC in a position to dominate the judiciary by doing away with the notion of two centres of judicial power. "Once a court acquires the status of an apex court, what that court decides is the beginning and the end. It becomes possible for one court to dominate the judiciary," Mtshaulana said. "I can foresee that, in years to come, what we have seen in the last two years will be nothing. I mean the conflict between the executive and the judiciary with the executive believing that the courts come too close to taking political decisions."

A hint in this direction was heard in the National Assembly in March when Human Settlements Minister Tokyo Sexwale said that government could approach Chief Justice Sandile Ngcobo over a landmark ruling in the South Gauteng High Court could throw housing policy into "chaos". Sexwale told Members of Parliament that there was a danger that case law could impact on policy with dramatic consequences, in that particular case by denting State coffers. The court evicted squatters from a building in Berea but ordered the Johannesburg city council to provide them with temporary accommodation, or pay each occupier or household head R850 to rent elsewhere.

De Vos said that differing views about the creation of the Apex Court endured. "One view is that it is not healthy because legal certainty is compromised. "Others, and I subscribe to this view, say that there is a need to transform the law to infuse ordinary lives with the values of equality, respect for dignity and procedural fairness and the price to pay for that is less certainty."

De Vos said that in practice, the ambit of the Constitutional Court had already grown beyond as innovative lawyers realised that any question in law could be "made into a constitutional matter". But he warned that once the bill cast that tendency in stone, the court's caseload would increase considerably.

"I'm a little bit nervous that the highest court will be overburdened and it would make it difficult to sustain the level of thoughtfulness we have seen up to now."

Source: Polity

Mpshe’s appointment: scandalous attack on independence of the judiciary

On is blog Constitutionally Speaking, Pierre de Vos says the following:

"There are three reasons why this appointment [of Mokotedi Mpshe as acting judge in the North West Provincial Division] is scandalous and perhaps unlawful.

First, while section 175(2) of the Constitution states that “[t]he Cabinet member responsible for the administration of justice must appoint acting judges to other courts after consulting the senior judge of the court on which the acting judge will serve”, this provision must be read in the light of the separation of powers doctrine and the constitutional guarantee of judicial independence. The present convention that gives effect to these principles is that the Judge President identifies candidates for appointment as acting judges and that the Minister then appoints them. The Minister is not supposed to canvass for a particular candidate.

This convention finds strong constitutional support in section 165(2) and (3) of the Constitution and the power of the Minister is in effect qualified by these provisions which states:

(2) The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.

(3) No person or organ of state may interfere with the functioning of the courts.

Judges need to be both impartial and independent. Even when they will be impartial it does not mean they will be independent. Because judges – even acting judges – might be called upon to hear cases in which the government of the day has an interest or is a party to, the separation of powers doctrine and the guarantees of an independent and impartial judiciary require the Minister not to take an active role in the appointment of acting judges.

If the Minister [Jeff Radebe] took an active role in such appointments and if that judge then later has to hear a case in which the government of the day has an interest, it would be akin to the Minister having chosen a judge to hear the government’s case and this would fundamentally erode the independence of the judiciary. This is because there would be a reasonable apprehension that the judge, who was only appointed because the Minister put pressure on the Judge President to appoint him, would not act without fear, favour or prejudice.

Second, in this case the problem is compounded by the fact that Mpshe was the acting head of the NDPP who controversially did the President and the governing party a HUGE favour by dropping all charges against its candidate for President shortly before the election. What is worse, he justified his decision by plagiarising an overturned Hong Kong Court decision and without referring at all to the prosecution policy to which he is constitutionally bound and which should have guided him in the decision. One would have to be very gullible not to have serious doubts (in law we would call it “a reasonable apprehension”) about the independence and impartiality of Mpshe and of his ability to resist political pressure.

Lastly, Mpshe I am told is still employed at the NPA. If this is correct, the appointment would surely not only be scandalous but also unconstitutional. Although members of the NPA fall administratively under the Ministry of Justice, they have a constitutional duty to act independently. Nevertheless, NPA members (like Mpshe) are state employees and are subject to the authority of the NDPP. A member of the NPA cannot serve two masters by being both subject to the authority of Simelane and subject only to the Constitution and the law which he must apply without fear, favour or prejudice. Although Mpshe might act impartially he would not be able to be independent because he is still a civil servant!

In the case of Law Society of Lesotho v The Prime Minister and Another the Lesotho Appeal Court nullified the appointment of an Adv Peete, a member of the Attorney General’s Office, as an acting judge, affirming the principle that justice should not only be done but should be seen to be done. “Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice”, the court said and continued:

Peete AJ’s official duty as a Judge may compel him to give decisions most unpopular to his one time and future superiors, or even to castigate them or their subordinates for the manner in which cases have been conducted. And then he is to return to work under his superiors!

The independence of judges does not only rely on the question of whether an appointee will indeed be impartial in his judgments and capable of acting independently, argued the court. The public’s right to feel confidence in the independence of judges is in itself part of the concept of independence. Where a current member of the NPA is appointed as acting judge the public would have no such confidence. Where that man is also the man who took a highly controversial decision to let the most powerful citizen off the hook and save his political bacon, the situation could not be clearer."

Source: Constitutionally Speaking