The corridor chatter in places legal is that the DA’s review of the NPA’s decision not to proceed with the prosecution of President Jacob Zuma should be successful.
THE "good guys" in the National Prosecuting Authority (NPA), and there are many of them, must be kicking themselves today because they did not charge Jacob Zuma and Schabir Shaik together in the same case. The latter was sentenced to 15 years for corrupting the former, who is now the president of SA. The benefit of hindsight, that 20/20 vision it invariably imparts, is not always so beneficial, as the contrasting fates of Zuma and Shaik show.
In the latest twist in the saga of the cases of these two senior African National Congress (ANC) members, the Democratic Alliance (DA), which launched a review of the NPA’s decision not to proceed with the prosecution of Zuma in 2009, has instructed its attorneys to institute contempt of court proceedings against the NPA. This unique step has been taken because it has failed to comply with the March 20 order of the Supreme Court of Appeal that it deliver, within 14 days, the record of all the documents, recordings, materials and evidence that were before it when it considered, and made, the fateful decision not to proceed with the 783 charges of corruption Zuma was facing in the run-up to the last general election in May 2009.
It needs to be borne in mind that when the acting national director of public prosecutions, Mokotedi Mpshe, announced the decision, he made it clear that the NPA was convinced it had a good case on the merits of the charges against Zuma.
In other words, the NPA was bullish about its prospects of proving beyond any reasonable doubt that Zuma was corrupt.
The reason proffered for withdrawing the charges was that political interference in the process had so tainted the case that it would not be possible to give Zuma a fair trial.
Unfortunately, the evidence upon which this conclusion was based is far from relevant or convincing. The controversial conversation between former colleagues Bulelani Ngcuka and Leonard M cCarthy, neither of whom had any say in the matter of the pressing and timing of charges, is best characterised as idle and irrelevant gossiping, not as a train smash for the proper administration of criminal justice.
The person who made the decisions, Mpshe himself, was not aware of the content of the clandestinely taped conversation at any material time, so how it could have influenced or interfered with his decision-making processes remains a mystery and gives the DA good grounds for taking him on review, as it has done.
The small matter of how the tape recording relied upon by Mpshe came to be in the possession of the attorney acting for then private citizen Zuma, when there is no legal way in which this can happen, is also a matter that will cast doubt upon the propriety of the decision to withdraw the charges that Zuma was facing. And then, to complete the potted prehistory of the current issue, there is the embarrassing detail that the Hong Kong legal precedent that the NPA dug up to justify its otherwise mystifying decision was overturned on appeal before Mpshe relied on it. In short, the DA’s review has good prospects of success, if its merits can ever be reached by overcoming the delaying and point-taking tactics of the respondents in the matter.
If this occurs before Mangaung hosts the ANC’s elective national conference in December, then the cat will truly be among the pigeons. Whether the DA would prefer a second Zuma presidential term or not, the old legal axiom applies: justice delayed is justice denied. Retired chief justice Pius Langa had occasion to admonish Zuma’s legal team to desist from endless preliminary technical point-taking in earlier litigation; but the habit of the Stalingrad strategy seems to die hard.
In the DA’s press release announcing the decision to deal with the NPA’s disregard for the court order, certainly a lamentable state of affairs, a few rhetorical questions are raised in an attempt to breathe outrage into the wholly predictable. Usually, rhetorical questions have obvious answers, but this is not necessarily so in this instance. Seriatim:
"Is the failure to produce the record an indication that there is no record to produce?" This is hardly likely. The phalanx of exhausted and miserable-looking senior staff who flanked Mpshe as he made the announcement on national TV could not have been doing sweet nothing in the process of compiling the announcement. The fact that the announcement itself included mention of the strength of the merits of the case, in the view of the NPA, is an indication that there were conflicting views behind the looks of disappointed disbelief on the faces in the background. It is likely that a flurry of memorandums and e-mails preceded the announcement. Finding the Hong Kong case took effort. The NPA’s problem today is that these documents most likely point up the flaws in the decision made, hence the tardiness, possibly aimed at kicking the case into touch until the post-Mangaung period.
"Is it possible that there was no rational basis on which this crucial decision was taken?" Here the DA is closer to the mark. The taped conversation upon which the decision hinged seems to be legally irrelevant and practically of no real consequence. Its provenance is highly questionable; courts do not have regard to illegally acquired evidence and neither should the NPA.
"Was the decision taken on political grounds?" This is hyperbole. The grounds for the decision were announced at the time, they were couched in legal, not political, terms and the decision has to stand or fall on the cogency of the legal reasons given, irrespective of the background hum from highly placed cadres of the ANC, both within and outside the NPA, who were all undoubtedly putting political pressure on the hapless and vulnerable Mpshe.
"Is the NPA party to placing someone above the law just because he holds high political office?" It is not clear whether this last DA question refers to the alleged contempt of court now, or the original decision back in 2009. Section nine of the bill of rights guarantees equality before the law to all. The NPA is bound to respect and protect this. It is also supposed to act independently and "without fear, favour or prejudice".
Zuma was a private citizen when the prosecution was stopped. He was also leader of the ANC, a party that is openly and unashamedly striving for hegemonic control of all the levers of power in society. Zuma deployed Menzi Simelane (not Mpshe, who went after Jackie Selebi despite political interference in that, ultimately successful, prosecution process) as his new national director of public prosecutions. At the time, this was described as an "insurance policy" against the risk of the DA succeeding in the review, the completion of which is now being thwarted by foot-dragging and obfuscation. As the whole game plan of the ANC is to put party above state, or at least so commingle them as to render the two indistinguishable, the answer must unfortunately be a disgraceful "yes" on the aspects back then of the ambiguous question, as well as those now.
As the courts have sent Simelane packing by resoundingly upholding the rule of law, the corridor chatter in places legal is that the DA’s review should be successful. This involves the reinstatement of the 783 corruption charges. Should this happen, it remains to be seen whether Zuma will follow Humphrey Mmemezi, a former Gauteng MEC and art lover, into resignation in accordance with the new guidelines for comrades under a corruption cloud.
• Hoffman SC is with the Institute for Accountability in Southern Africa
Source: Business Day
Showing posts with label Mokotedi Mpshe. Show all posts
Showing posts with label Mokotedi Mpshe. Show all posts
Monday, July 23, 2012
Wednesday, April 11, 2012
Crime Intelligence Head Saga Reveals a Growing Threat to the Rule of Law in South Africa
For the past few weeks, South Africans have been subjected to a number of disturbing media reports alleging political interference to cover up corruption affecting the highest levels of the South African Police Service (SAPS) and the National Prosecuting Authority (NPA). That these ongoing allegations have not been dealt with in an accountable and transparent manner bodes badly for the future of the country’s criminal justice system. The saga of this disturbing episode also sheds light on the nature of an emerging threat to the rule of law in South Africa.
Two months after Jacob Zuma was sworn in as president of South Africa on 9 May 2009, Richard Mdluli, was appointed as the national Head of the SAPS Crime Intelligence Division in the post of a Lieutenant-General. This placed him in one of the most powerful positions in the SAPS allowing him to oversee and direct the state’s capacity to gather both real-time and historical information on virtually any individual in the country. It then emerged that Mdluli’s appointment had been irregular as it was the result of inappropriate political interference. The SAPS Act of 1995 (chapter 4, section 6) requires that the National Commissioner appoint the deputy national and divisional commissioners. However, then Acting National Commissioner at the time, Lieutenant-General Tim Williams, revealed that Mdluli, was appointed by a panel consisting solely of four cabinet members without any police officials or experts on crime intelligence being present.
The Mail and Guardian has reported that Mdluli was appointed to this position because he assisted President Jacob Zuma escape various criminal charges. In particular, Mduli was alleged to have played a key role in the illegal leaking of confidential crime intelligence tape recordings to Zuma’s criminal defence lawyers. The tapes purported to be of the then NPA’s Head of the Directorate of Special operations (also known as the Scorpions) Leonard McCarthy allegedly discussing when to reinstate charges of corruption, money laundering, fraud and racketeering against Zuma with the ex-head of the NPA Bulelani Nguka. These tapes were made while Mdluli was the head of SAPS Crime Intelligence in the Gauteng Province and was allegedly paying a leading role in a police campaign to derail the corruption investigation and prosecution against then SAPS National Commissioner, Jackie Selebi.
The tapes were later used by then acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to controversially withdraw 783 criminal charges against Zuma paving his way to assume the position of President of the Republic of South Africa. Zuma, through his spokesperson has denied that he had anything to do with the appointment of Mdluli.
During September of 2011, Mdluli was investigated by the elite Directorate of Priority Crime Investigations (also known as the Hawks) and charged with separate cases of murder and corruption. During his bail hearing Mdluli argued that the charges against him were motivated by a political conspiracy against him because he was seen as close to Zuma. To support this claim, he handed as evidence before the court a ‘ground intelligence report’, providing details about various senior ANC politicians. The report claimed that these leaders had held a meeting to discuss removing Zuma as party president at the upcoming 2012 ANC National Conference. Mdluli also handed to the court a letter he had written to Zuma requesting his assistance dated 11 November 2011, claiming that the criminal charges were as a result of a conspiracy against him by junior intelligence officers who had been aligned to previous president Thabo Mbeki.
The evidence before the court in Mdluli’s bail hearing, raises the concern that either most powerful SAPS Divisional Head or other officers were abusing their official police position and state resources with regards to internal matters of the ruling political party. A month after President Zuma received Mdluli’s letter, the NPA controversially withdrew the criminal charges against Mdluli and forwarded the docket to the Inspector General of Intelligence, Faith Radebe.
What made this a particularly controversial decision is that the NPA had commissioned an independent legal opinion, which found that there was sufficient evidence to criminally prosecute Mdluli. Moreover, the Mail and Guardian reported on a letter written by Radebe, on 19 March 2012 that stated, “We are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of criminal charges.”
The NPA refused to recharge Mdluli, stating that in their opinion there was insufficient evidence to charge him. This in spite of various recommendations to the contrary. Unfortunately, the NPA is already under a cloud following a range of controversial appointments to the senior echelons of the agency. The Supreme Court of Appeal unanimously ruled that President Zuma’s appointment of Menzi Simelane as the NDPP, was “irrational” considering the substantial evidence available that he was not a fit and proper person for this important position. Nevertheless, Zuma then appointed another tainted individual as the acting NDPP, Advocate Nomgcobo Jiba. Jiba’s credibility had been severely undermined following her suspension from the NPA pending a disciplinary hearing on charges of unprofessional conduct, dishonesty, fraud and bringing the NPA into disrepute in December 2007. This was in relation to her role in assisting the police obtain a warrant of arrest against Advocate Gerrie Nel, the lead prosecutor in the Selebi corruption case.
This attempt to interfere in the Selebi case was slammed by the High Court. Although suspended, Jiba had managed stay the disciplinary hearing against her by launching various court applications. During one of these legal challenges, Mduli had testified as a character witness on her behalf. Eventually, those leading the charges against her left the NPA and she was allowed to keep her job in a settlement in which she paid the NPAs costs. Current concerns about the credibility of the acting NDPP are that Jiba may feel a substantial degree of indebtedness to Zuma. Not only had Zuma overlooked Jiba’s chequered past when he appointed her to head the NPA, but he also used his presidential authority to expunge her husband’s, 2005 criminal conviction for stealing R193 000 from a clients trust while he was a practicing attorney.
In addition to the criminal charges against Mdluli, a subsequent separate internal SAPS Crime Intelligence investigation found evidence alleging that he was directly implicated in widespread theft and corruption involving the SAPS Secret Services Account. Allegations in the report included that Mdluli had irregularly employed at least 23 family members and friends, misused state vehicles, safe houses and state funds for his own benefit in addition to a range of other corrupt activities. Many were surprised when it was reported that the head of the Hawks, Lieutenant-General Anwar Dramat, had suddenly halted all criminal investigations into Mdluli and other members of the SAPS Crime Intelligence Division, allegedly on instruction from the current Acting National Commissioner, General Nhlanhla Mkhwanazi.
The City Press then published a report alleging that Mkhwanazi had received an instruction from the Minister of Police Nathi Mthethwa, to cease all investigations into Mdluli and to reinstate him to the SAPS National Head of Crime Intelligence. This past weekend, the City Press reported that that the Minister of Police himself is alleged to have illegally benefited from the Secret Service Account which was used to pay for R195 500 worth of renovations to the Ministers private residence. The Minister has publicly denied all allegations and stated that he would be requesting that the Auditor-General investigate these allegations.
Richard Mdluli is now back in his post with a large number of serious allegations hanging over his head, and the heads of the NDPP and the Minister of Police. All processes to examine any evidence supporting the allegations in an open and accountable manner have been halted without adequate explanation. The only official statement from the SAPS is that this is an internal matter and no further comment will be forthcoming.
The many honest, hard working police men and women who place their lives on the line fighting crime need to trust that those leading them are beyond reproach. Similarly, those who take to the courts each day to prosecute criminals in the interest of justice need to feel pride in their institution and what it represents. The only way to sort through the various allegations affecting those that are meant to lead the criminal justice system is for an independent judicial commission of inquiry to test the evidence behind the allegations in a transparent and fair manner. In this way, those that may have abused their positions can be identified and measures taken to prevent reoccurrence. This will restore faith in the criminal justice system. However, if these allegations are left unchallenged it will severely damage public trust in those in charge of the criminal justice system, and then without a doubt, the principle of the rule of law in South Africa is in deep trouble.
Source: ISS
Two months after Jacob Zuma was sworn in as president of South Africa on 9 May 2009, Richard Mdluli, was appointed as the national Head of the SAPS Crime Intelligence Division in the post of a Lieutenant-General. This placed him in one of the most powerful positions in the SAPS allowing him to oversee and direct the state’s capacity to gather both real-time and historical information on virtually any individual in the country. It then emerged that Mdluli’s appointment had been irregular as it was the result of inappropriate political interference. The SAPS Act of 1995 (chapter 4, section 6) requires that the National Commissioner appoint the deputy national and divisional commissioners. However, then Acting National Commissioner at the time, Lieutenant-General Tim Williams, revealed that Mdluli, was appointed by a panel consisting solely of four cabinet members without any police officials or experts on crime intelligence being present.
The Mail and Guardian has reported that Mdluli was appointed to this position because he assisted President Jacob Zuma escape various criminal charges. In particular, Mduli was alleged to have played a key role in the illegal leaking of confidential crime intelligence tape recordings to Zuma’s criminal defence lawyers. The tapes purported to be of the then NPA’s Head of the Directorate of Special operations (also known as the Scorpions) Leonard McCarthy allegedly discussing when to reinstate charges of corruption, money laundering, fraud and racketeering against Zuma with the ex-head of the NPA Bulelani Nguka. These tapes were made while Mdluli was the head of SAPS Crime Intelligence in the Gauteng Province and was allegedly paying a leading role in a police campaign to derail the corruption investigation and prosecution against then SAPS National Commissioner, Jackie Selebi.
The tapes were later used by then acting National Director of Public Prosecutions (NDPP) Mokotedi Mpshe to controversially withdraw 783 criminal charges against Zuma paving his way to assume the position of President of the Republic of South Africa. Zuma, through his spokesperson has denied that he had anything to do with the appointment of Mdluli.
During September of 2011, Mdluli was investigated by the elite Directorate of Priority Crime Investigations (also known as the Hawks) and charged with separate cases of murder and corruption. During his bail hearing Mdluli argued that the charges against him were motivated by a political conspiracy against him because he was seen as close to Zuma. To support this claim, he handed as evidence before the court a ‘ground intelligence report’, providing details about various senior ANC politicians. The report claimed that these leaders had held a meeting to discuss removing Zuma as party president at the upcoming 2012 ANC National Conference. Mdluli also handed to the court a letter he had written to Zuma requesting his assistance dated 11 November 2011, claiming that the criminal charges were as a result of a conspiracy against him by junior intelligence officers who had been aligned to previous president Thabo Mbeki.
The evidence before the court in Mdluli’s bail hearing, raises the concern that either most powerful SAPS Divisional Head or other officers were abusing their official police position and state resources with regards to internal matters of the ruling political party. A month after President Zuma received Mdluli’s letter, the NPA controversially withdrew the criminal charges against Mdluli and forwarded the docket to the Inspector General of Intelligence, Faith Radebe.
What made this a particularly controversial decision is that the NPA had commissioned an independent legal opinion, which found that there was sufficient evidence to criminally prosecute Mdluli. Moreover, the Mail and Guardian reported on a letter written by Radebe, on 19 March 2012 that stated, “We are of the opinion that the reasons advanced by the NPA in support of the withdrawal of the criminal charges are inaccurate and legally flawed. We therefore recommend that this matter be referred back to the NPA for the institution of criminal charges.”
The NPA refused to recharge Mdluli, stating that in their opinion there was insufficient evidence to charge him. This in spite of various recommendations to the contrary. Unfortunately, the NPA is already under a cloud following a range of controversial appointments to the senior echelons of the agency. The Supreme Court of Appeal unanimously ruled that President Zuma’s appointment of Menzi Simelane as the NDPP, was “irrational” considering the substantial evidence available that he was not a fit and proper person for this important position. Nevertheless, Zuma then appointed another tainted individual as the acting NDPP, Advocate Nomgcobo Jiba. Jiba’s credibility had been severely undermined following her suspension from the NPA pending a disciplinary hearing on charges of unprofessional conduct, dishonesty, fraud and bringing the NPA into disrepute in December 2007. This was in relation to her role in assisting the police obtain a warrant of arrest against Advocate Gerrie Nel, the lead prosecutor in the Selebi corruption case.
This attempt to interfere in the Selebi case was slammed by the High Court. Although suspended, Jiba had managed stay the disciplinary hearing against her by launching various court applications. During one of these legal challenges, Mduli had testified as a character witness on her behalf. Eventually, those leading the charges against her left the NPA and she was allowed to keep her job in a settlement in which she paid the NPAs costs. Current concerns about the credibility of the acting NDPP are that Jiba may feel a substantial degree of indebtedness to Zuma. Not only had Zuma overlooked Jiba’s chequered past when he appointed her to head the NPA, but he also used his presidential authority to expunge her husband’s, 2005 criminal conviction for stealing R193 000 from a clients trust while he was a practicing attorney.
In addition to the criminal charges against Mdluli, a subsequent separate internal SAPS Crime Intelligence investigation found evidence alleging that he was directly implicated in widespread theft and corruption involving the SAPS Secret Services Account. Allegations in the report included that Mdluli had irregularly employed at least 23 family members and friends, misused state vehicles, safe houses and state funds for his own benefit in addition to a range of other corrupt activities. Many were surprised when it was reported that the head of the Hawks, Lieutenant-General Anwar Dramat, had suddenly halted all criminal investigations into Mdluli and other members of the SAPS Crime Intelligence Division, allegedly on instruction from the current Acting National Commissioner, General Nhlanhla Mkhwanazi.
The City Press then published a report alleging that Mkhwanazi had received an instruction from the Minister of Police Nathi Mthethwa, to cease all investigations into Mdluli and to reinstate him to the SAPS National Head of Crime Intelligence. This past weekend, the City Press reported that that the Minister of Police himself is alleged to have illegally benefited from the Secret Service Account which was used to pay for R195 500 worth of renovations to the Ministers private residence. The Minister has publicly denied all allegations and stated that he would be requesting that the Auditor-General investigate these allegations.
Richard Mdluli is now back in his post with a large number of serious allegations hanging over his head, and the heads of the NDPP and the Minister of Police. All processes to examine any evidence supporting the allegations in an open and accountable manner have been halted without adequate explanation. The only official statement from the SAPS is that this is an internal matter and no further comment will be forthcoming.
The many honest, hard working police men and women who place their lives on the line fighting crime need to trust that those leading them are beyond reproach. Similarly, those who take to the courts each day to prosecute criminals in the interest of justice need to feel pride in their institution and what it represents. The only way to sort through the various allegations affecting those that are meant to lead the criminal justice system is for an independent judicial commission of inquiry to test the evidence behind the allegations in a transparent and fair manner. In this way, those that may have abused their positions can be identified and measures taken to prevent reoccurrence. This will restore faith in the criminal justice system. However, if these allegations are left unchallenged it will severely damage public trust in those in charge of the criminal justice system, and then without a doubt, the principle of the rule of law in South Africa is in deep trouble.
Source: ISS
Tuesday, March 20, 2012
SCA orders NPA to hand over record of Zuma charges
The Supreme Court of Appeal upheld an attempt by the Democratic Alliance on Tuesday for access to the records that led to the suspension of criminal charges against President Jacob Zuma in 2009. The DA wanted a review of the decision, by then acting National Director of Public Prosecutions Mokotedi Mpshe, to drop charges against Zuma before he was elected president. The DA had called on the National Prosecuting Authority to produce the record of proceedings that led to the decision.
The court held that Mpshe's decision on April 6 2009, to discontinue the prosecution of Zuma on corruption charges, would be subject to review. The SCA ruled that Mpshe should hand over the record to the registrar of the Supreme Court of Appeal within 14 days. The record should, however, exclude written representations made on behalf of Zuma and any consequent memoranda or reports prepared in response, or oral representations, if their production would breach confidentiality agreements.
The SCA further held that the record should consist of the documents and material relevant to the review, including those before Mpshe when he made his decision. NPA spokesperson Mthunzi Mhaga said it would study the judgment to determine the next legal steps. "We wish to state that we still stand by advocate Mpshe's decision and remind all that these were preliminary issues with no direct impact on his decision not to prosecute."
In 2009, Mpshe halted Zuma's prosecution on fraud and corruption charges. At the time, the NPA said it was "neither possible nor desirable" to continue with the prosecution citing an "abuse of process". Mpshe pointed to telephone recordings between former NPA head Bulelani Ngcuka and former head of the Directorate of Special Operations Leonard McCarthy, discussing the timing of recharging Zuma. The conversations allegedly took place shortly before the ANC's historic Polokwane elective conference in December 2007, where Zuma defeated Thabo Mbeki in the race for the party's presidency. As such, the case against Zuma was deemed to be politically motivated. "It's not so much the prosecution itself but the legal process that is tainted," Mpshe said at the time.
However, the DA argued that the decision was unconstitutional and invalid and wants the charges to be revisited. When the matter went before the SCA, constitutional and legal expert Pierre de Vos told the Mail & Guardian that even if the SCA ruled in the DA's favour, it would be a long road for the opposition to follow if they decide to pursue the matter. "There is no law stating a person facing criminal charges can't become president, so Zuma's presidency can't immediately be threatened. It will also take a long time for before anything substantive comes of this as the SCA will send this back to the high court and the case could be delayed until it is no longer relevant," said De Vos.
However, the DA said at the time that its case was not only about challenging Zuma's fitness for office but also upholding the independence of the NPA and the judiciary as a whole.
Source: Mail & Guardian
The court held that Mpshe's decision on April 6 2009, to discontinue the prosecution of Zuma on corruption charges, would be subject to review. The SCA ruled that Mpshe should hand over the record to the registrar of the Supreme Court of Appeal within 14 days. The record should, however, exclude written representations made on behalf of Zuma and any consequent memoranda or reports prepared in response, or oral representations, if their production would breach confidentiality agreements.
The SCA further held that the record should consist of the documents and material relevant to the review, including those before Mpshe when he made his decision. NPA spokesperson Mthunzi Mhaga said it would study the judgment to determine the next legal steps. "We wish to state that we still stand by advocate Mpshe's decision and remind all that these were preliminary issues with no direct impact on his decision not to prosecute."
In 2009, Mpshe halted Zuma's prosecution on fraud and corruption charges. At the time, the NPA said it was "neither possible nor desirable" to continue with the prosecution citing an "abuse of process". Mpshe pointed to telephone recordings between former NPA head Bulelani Ngcuka and former head of the Directorate of Special Operations Leonard McCarthy, discussing the timing of recharging Zuma. The conversations allegedly took place shortly before the ANC's historic Polokwane elective conference in December 2007, where Zuma defeated Thabo Mbeki in the race for the party's presidency. As such, the case against Zuma was deemed to be politically motivated. "It's not so much the prosecution itself but the legal process that is tainted," Mpshe said at the time.
However, the DA argued that the decision was unconstitutional and invalid and wants the charges to be revisited. When the matter went before the SCA, constitutional and legal expert Pierre de Vos told the Mail & Guardian that even if the SCA ruled in the DA's favour, it would be a long road for the opposition to follow if they decide to pursue the matter. "There is no law stating a person facing criminal charges can't become president, so Zuma's presidency can't immediately be threatened. It will also take a long time for before anything substantive comes of this as the SCA will send this back to the high court and the case could be delayed until it is no longer relevant," said De Vos.
However, the DA said at the time that its case was not only about challenging Zuma's fitness for office but also upholding the independence of the NPA and the judiciary as a whole.
Source: Mail & Guardian
Friday, June 10, 2011
Zuma's move on Ngcobo 'illegal'
Hoffman described Zuma's recent decision to extend Ngcobo's term by another five years as "unconstitutional, illegal and invalid". "I say this with a heavy heart. Sandile Ngcobo is a proper judge because he knows what the role of the rule of law is in a constitutional democracy. "And if an Act of Parliament were to be passed that would extend his term, I would welcome his reappointment," said Hoffman. "But as no Act of Parliament that allows this extension has been passed, I must be true to the law and therefore critical of the president's decision."
Ngcobo's 12-year term is coming to an end in September, but Zuma announced last week he would be extending the term to 2016 in terms of the Judges' Remuneration and Conditions of Employment Act. Legal sources said that Moseneke was widely regarded in legal circles as "too independent" for the post. In 2008 the ANC issued a statement complaining that comments Moseneke made at his birthday party had shown disdain for its delegates to the ANC's national conference in Polokwane in 2007, but it later retracted its complaint. At the time Moseneke was quoted by the Sunday Times as saying: "I chose this job very carefully. I have another 10 to 12 years on the Bench and I want to use my energy to help create an equal society. It's not what the ANC wants or what the delegates want; it is about what is good for the people."
Hoffman said Zuma might also be concerned about three coming legal challenges in the Constitutional Court, two by the Democratic Alliance -- the controversial appointment of Menzi Simelane as prosecutions boss and the decision by former acting prosecutions head Mokotedi Mpshe to drop corruption charges against Zuma -- and Terry Crawford-Brown's bid to force Zuma to appoint a commission of inquiry into the R30-billion arms deal in which Zuma himself was implicated. Hoffman said the Constitution clearly stated that a Constitutional Court judge could hold office for a non-renewable term of 12 years, or until he or she reached the age of 70, whichever occurred first, except where an Act of Parliament extended the term of office of a particular judge.
Professor Pierre de Vos, a constitutional law expert, wrote in his online blog, Constitutionally Speaking, that the Constitution was amended in 2001 to accommodate respected former chief justice Arthur Chaskalson and extend his term of office but after much heated debate Chaskalson retired. "At the time, many constitutional lawyers argued that this amendment was unwise and opposed it. Some lawyers who respected and even revered Chaskalson had a problem with the amendment (generally known as the Chaskalson amendment) because it was argued that as a matter of principle it was unwise for politicians to be involved in extending the term of office of a judge, especially the chief justice." The problem was that it would create the impression that the judge was not independent, he said.
Professor Raylene Keightley, director of the Centre for Applied Legal Studies at Wits University, said the legal provisions that the president used to extend the chief justice's term would be challenged. "We wish to emphasise that the challenge is not directed at the current chief justice, or at his competence, integrity or other attributes. The case raises fundamentally important constitutional issues involving among others, the independence of the judiciary. "Clarity on these issues is of vital importance to the administration of justice in South Africa and our challenge is therefore brought with the broader public interest in mind," Keightley said.
Source: Mail & Guardian
Tuesday, December 14, 2010
Corruption SA - the almost irresistible tsunami
The common solution to the perennial conundrum of what happens when the “Unstoppable Force” hits the “Immovable Object” is that either the force must stop or the object must move. In the fight against Africa’s greatest evil, the big question is whether corruption is unstoppable and/or immovable. “Political hyenas” has to be SA's political phrase of the year. In grown-up politics, at any rate. “Bloody agent” may appeal to the younger types, but the fact is this year has really been dominated by one overarching issue: Corruption.
2010 is the year in which the fight against corruption gained a public and popular political hero, Zwelinzima Vavi. It’s also the year when those who may be corrupt, those who may be hyenas, started to make their own presence felt, started to use their considerable power. This is an issue that will probably dominate 2011, and will definitely become a big issue in the ANC’s big year in 2012.
It’s very easy to claim that this is all Jacob Zuma’s fault. He’s the President, and hell, it’s not like he’s clean himself. The full story of how exactly he escaped having to answer questions under oath about those “loans” from Schabir Shaik is in itself possibly a corruption story of the highest order. But the person (Mokotedi Mpshe) who made the final decision is now a judge himself, so we’ll probably never know the full full extent of it.
And having a head of state with that perception around him doesn’t make the fight against corruption any easier. Just look at the SABC. The man who ran it, Dali Mpofu does many a wrong thing, gets sacked and walks away with millions. Other people, in the lower echelons of the corporation are only human if they think well, I’ll just start my own company and start to bill the corporation as well. The same dynamic could easily affect our traffic cops and councillors. Hell, if he’s doing it, why not? And it doesn’t matter if Zuma actually did anything wrong or not; it’s the perception that matters.
But as easy as that would be, the fact is that corruption is a much bigger issue than just one man. Corruption, the hyenas, now have a momentum behind them that sometimes looks well nigh unstoppable. And that momentum started long before Zuma, it started almost before Mbeki. The fact is that capitalists, the filthy lucre-ites, got their dirty fingers into the ANC, and those vulnerable to such an approach, probably even before Nelson Mandela took his oath of office.
The real question now though is: Has this momentum become irresistible? Or is it a one tsunami that can be tamed? Most societies have a type of momentum to them that moves in ebbs and flows. Prohibition and alcohol abstinence took hold of the US for a while, and then let go its grip. Some countries in Eastern Europe flirted, very painfully, with hard-core socialism as a sort of foreplay to communism, before changing their minds. Here, capitalism still wins and as a result most of the rich are still white. The trends that gather momentum quickly and strongly are those that appeal to our baser instincts. Most people want to get rich, thus the “Clever Boys of the Alliance” (the SACP) have such a difficult fight on their hands.
Corruption, of course, appeals to a very base instinct, which makes it very difficult to fight. In most places, what seems to work is a division of power. That gift the US gave to the world of checks and balances is the one silver bullet we know of that fights corruption with some success. Not total success mind you, but close enough for us. And therein lies the problem. Our checks and balances are weaker than they should be: the ANC’s deployment committee has seen to that. The balance between the minister who sets policy and the government mandarin who is supposed to implement it is gone.
Nowhere is this more stark than in this year’s appointment by Zuma of Menzi Simelane to the post of national director of public prosecutors. By his own admission (during the Ginwala Commission) he is not someone who believes the National Prosecuting Authority should be entirely independent of the justice ministry. (The judge who ruled he couldn’t find the appointment was unlawful, only pointed out there was no evidence Zuma even thought about appointing someone else.)
The fact is that those who claim to be keen on fighting corruption, in which, based on their public statements, we have to include the likes of Zuma, Gwede Mantashe and the rest of the ANC’s top six, are not giving us any proof of real commitment. Time and time again these people have defended the ANC’s deployment policy, and time and time again they have claimed to be fighting corruption. The two are mutually exclusive.
The fact is, to quote Kofi Annan, “Anything is possible, if only we have the political will”. The ANC, at the moment, doesn’t appear to us, to have that level of political will. And without the ANC behind you, you are not going to change the momentum of this country very easily. In fact, it may be impossible.
Source: Daily Maverick
2010 is the year in which the fight against corruption gained a public and popular political hero, Zwelinzima Vavi. It’s also the year when those who may be corrupt, those who may be hyenas, started to make their own presence felt, started to use their considerable power. This is an issue that will probably dominate 2011, and will definitely become a big issue in the ANC’s big year in 2012.
It’s very easy to claim that this is all Jacob Zuma’s fault. He’s the President, and hell, it’s not like he’s clean himself. The full story of how exactly he escaped having to answer questions under oath about those “loans” from Schabir Shaik is in itself possibly a corruption story of the highest order. But the person (Mokotedi Mpshe) who made the final decision is now a judge himself, so we’ll probably never know the full full extent of it.
And having a head of state with that perception around him doesn’t make the fight against corruption any easier. Just look at the SABC. The man who ran it, Dali Mpofu does many a wrong thing, gets sacked and walks away with millions. Other people, in the lower echelons of the corporation are only human if they think well, I’ll just start my own company and start to bill the corporation as well. The same dynamic could easily affect our traffic cops and councillors. Hell, if he’s doing it, why not? And it doesn’t matter if Zuma actually did anything wrong or not; it’s the perception that matters.
But as easy as that would be, the fact is that corruption is a much bigger issue than just one man. Corruption, the hyenas, now have a momentum behind them that sometimes looks well nigh unstoppable. And that momentum started long before Zuma, it started almost before Mbeki. The fact is that capitalists, the filthy lucre-ites, got their dirty fingers into the ANC, and those vulnerable to such an approach, probably even before Nelson Mandela took his oath of office.
The real question now though is: Has this momentum become irresistible? Or is it a one tsunami that can be tamed? Most societies have a type of momentum to them that moves in ebbs and flows. Prohibition and alcohol abstinence took hold of the US for a while, and then let go its grip. Some countries in Eastern Europe flirted, very painfully, with hard-core socialism as a sort of foreplay to communism, before changing their minds. Here, capitalism still wins and as a result most of the rich are still white. The trends that gather momentum quickly and strongly are those that appeal to our baser instincts. Most people want to get rich, thus the “Clever Boys of the Alliance” (the SACP) have such a difficult fight on their hands.
Corruption, of course, appeals to a very base instinct, which makes it very difficult to fight. In most places, what seems to work is a division of power. That gift the US gave to the world of checks and balances is the one silver bullet we know of that fights corruption with some success. Not total success mind you, but close enough for us. And therein lies the problem. Our checks and balances are weaker than they should be: the ANC’s deployment committee has seen to that. The balance between the minister who sets policy and the government mandarin who is supposed to implement it is gone.
Nowhere is this more stark than in this year’s appointment by Zuma of Menzi Simelane to the post of national director of public prosecutors. By his own admission (during the Ginwala Commission) he is not someone who believes the National Prosecuting Authority should be entirely independent of the justice ministry. (The judge who ruled he couldn’t find the appointment was unlawful, only pointed out there was no evidence Zuma even thought about appointing someone else.)
The fact is that those who claim to be keen on fighting corruption, in which, based on their public statements, we have to include the likes of Zuma, Gwede Mantashe and the rest of the ANC’s top six, are not giving us any proof of real commitment. Time and time again these people have defended the ANC’s deployment policy, and time and time again they have claimed to be fighting corruption. The two are mutually exclusive.
The fact is, to quote Kofi Annan, “Anything is possible, if only we have the political will”. The ANC, at the moment, doesn’t appear to us, to have that level of political will. And without the ANC behind you, you are not going to change the momentum of this country very easily. In fact, it may be impossible.
Source: Daily Maverick
Monday, February 8, 2010
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:
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:
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
"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
Friday, February 5, 2010
Radebe job-hunts for Mpshe
Justice Minister Jeff Radebe has been working hard to secure a new job for the prosecutions chief who dropped charges against President Jacob Zuma, the Mail & Guardian has learned. Mokotedi Mpshe has been appointed an acting judge -- setting him on a path towards a more permanent position on the Bench. It is understood that to pave the way for the appointment, Radebe approached at least two senior high court judges.
Mpshe, who took over as acting National Director of Public Prosecutions after Vusi Pikoli was axed, went on to let Zuma off the hook. The equally controversial Menzi Simelane has since been appointed to the post. Radebe has now finalised Mpshe's appointment in the North West Provincial Division after first trying to get him a post in the Western Cape.
The Constitution allows Radebe, in consultation with the most senior judge of any high court, to appoint acting judges. However, his determined "shopping around" on Mpshe's behalf has fuelled perceptions that Radebe is fast-tracking him to the Bench as a reward for relenting on the graft charges against Zuma. It will raise questions, too, about the separation of executive and judicial powers, still a fraught issue in the aftermath of the long battle over Zuma's charges.
Mpshe decided not to prosecute Zuma after recordings gathered by the National Intelligence Agency (NIA) revealed a political conspiracy against the ruling party's president. He was later forced to admit that much of his legal argument for the decision had been plagiarised from a Hong Kong judgment later overturned on appeal.
A source in the Western Cape division told the M&G that Radebe had telephoned the acting judge president of the division, Jeannette Traverso, to ask that she make an acting position available to Mpshe. The call took place on Wednesday last week, this person said. When it did not bear fruit immediately, it seems Radebe turned to the North West division.
One judge with extensive experience of the procedures surrounding acting appointments told the M&G the "pressure" applied by Radebe was highly unusual. "The way it usually happens is that the judge president concludes that one or more acting judges are required to cover for colleagues working in, for example, the Labour Court, or on long leave. He or she then turns to people who may be considered suitable. "Of course, people may make suggestions -- pointing out a particularly promising advocate, for example. Also, the Council of the Bar may be approached for suggestions. "Previous justice ministers may have lobbied for their friends, but this degree of pressure and shopping around is really extraordinary and disturbing."
Radebe's spokesperson, Tlali Tlali, confirmed that Radebe had approached Traverso but vehemently denied that he had "shopped" around to secure a position for Mpshe: "Those desperate to generate sensation out of this appointment will conveniently omit to state … what our legal framework provides for. The minister exercised constitutionally conferred authority." There was nothing "irregular" about Mpshe's appointment, he said. Radebe's request to Traverso is complicated by the fact that one of the judges on leave in the Cape is her boss, John Hlophe, who was accused of campaigning for the dropping of charges against Zuma.
Traverso, after being a close ally of Hlophe early in his career, was accused by him of racism in 2004-05 and has since been a quiet adversary. Asked whether Mpshe would appear before the Judicial Service Commission (JSC) in April, Tlali said: "That's putting the cart before the horse. The JSC doesn't interview candidates who do not make themselves available for permanent appointment."
The JSC is due to interview candidates for various vacancies in Cape Town from April 12 and the M&G has established that Mpshe's name is not one of the five nominations received to date by the JSC. Traverso did not respond to a telephone message.
Source: Mail & Guardian
Read a follow up commentary by Pierre De Voss on his Blog "Constitutionally Speaking"
Mpshe, who took over as acting National Director of Public Prosecutions after Vusi Pikoli was axed, went on to let Zuma off the hook. The equally controversial Menzi Simelane has since been appointed to the post. Radebe has now finalised Mpshe's appointment in the North West Provincial Division after first trying to get him a post in the Western Cape.
The Constitution allows Radebe, in consultation with the most senior judge of any high court, to appoint acting judges. However, his determined "shopping around" on Mpshe's behalf has fuelled perceptions that Radebe is fast-tracking him to the Bench as a reward for relenting on the graft charges against Zuma. It will raise questions, too, about the separation of executive and judicial powers, still a fraught issue in the aftermath of the long battle over Zuma's charges.
Mpshe decided not to prosecute Zuma after recordings gathered by the National Intelligence Agency (NIA) revealed a political conspiracy against the ruling party's president. He was later forced to admit that much of his legal argument for the decision had been plagiarised from a Hong Kong judgment later overturned on appeal.
A source in the Western Cape division told the M&G that Radebe had telephoned the acting judge president of the division, Jeannette Traverso, to ask that she make an acting position available to Mpshe. The call took place on Wednesday last week, this person said. When it did not bear fruit immediately, it seems Radebe turned to the North West division.
One judge with extensive experience of the procedures surrounding acting appointments told the M&G the "pressure" applied by Radebe was highly unusual. "The way it usually happens is that the judge president concludes that one or more acting judges are required to cover for colleagues working in, for example, the Labour Court, or on long leave. He or she then turns to people who may be considered suitable. "Of course, people may make suggestions -- pointing out a particularly promising advocate, for example. Also, the Council of the Bar may be approached for suggestions. "Previous justice ministers may have lobbied for their friends, but this degree of pressure and shopping around is really extraordinary and disturbing."
Radebe's spokesperson, Tlali Tlali, confirmed that Radebe had approached Traverso but vehemently denied that he had "shopped" around to secure a position for Mpshe: "Those desperate to generate sensation out of this appointment will conveniently omit to state … what our legal framework provides for. The minister exercised constitutionally conferred authority." There was nothing "irregular" about Mpshe's appointment, he said. Radebe's request to Traverso is complicated by the fact that one of the judges on leave in the Cape is her boss, John Hlophe, who was accused of campaigning for the dropping of charges against Zuma.
Traverso, after being a close ally of Hlophe early in his career, was accused by him of racism in 2004-05 and has since been a quiet adversary. Asked whether Mpshe would appear before the Judicial Service Commission (JSC) in April, Tlali said: "That's putting the cart before the horse. The JSC doesn't interview candidates who do not make themselves available for permanent appointment."
The JSC is due to interview candidates for various vacancies in Cape Town from April 12 and the M&G has established that Mpshe's name is not one of the five nominations received to date by the JSC. Traverso did not respond to a telephone message.
Source: Mail & Guardian
Read a follow up commentary by Pierre De Voss on his Blog "Constitutionally Speaking"
Saturday, December 12, 2009
Majali in the wars again
Beleaguered businessman Sandi Majali is desperately trying to avoid facing trial for corruption and money laundering.
The charges flow from Majali's entanglement with a web of business and political interests in KwaZulu-Natal, the machinations of which have already resulted in the launch of three criminal investigations.
Case One
This is the case involving Majali, who shot to public prominence over his role in the Oilgate saga that saw him "donate" R11-million of PetroSA money to the ANC.
Now Majali is accused of laundering bribe payments made by businessman Jabulani Mabaso to a senior KwaZulu-Natal official, Pamela Zulu, for her to secure Mabaso a huge contract to supply school stationery. In May 2005 Mabaso's company, Indiza Infrastructure Solutions, and another company won a tender from the KwaZulu-Natal education department. Zulu, then with the provincial treasury, sat on the evaluation committee that recommended Indiza. A two-year tender award was confirmed in December 2005. Over an 18-month period Indiza charged the department, where Zulu was chief financial officer, approximately R449-million. A charge sheet against Zulu and Mabaso claims invoices were inflated to the tune of R197-million.
The National Prosecuting Authority (NPA) alleges a bribe was paid by Mabaso to Zulu via a number of Majali's companies.
According to the NPA:
* On April 21 2006 Mabaso deposited R2,5-million in the trust account of Majali's attorney. About R170 000 was transferred four days later to a Honda dealership.
* On May 12 2006 a further R200 000 was deposited into Zulu's account from another Majali company, Imvume Paymaster Services.
* At about that time Majali allegedly entered into an agreement with Zulu for Imvume Paymaster Services to buy shares she supposedly held in another Majali-related company, New Era Capital. She was to receive R4-million, with an initial down payment of R200 000.
In various court papers Majali maintains this represented bona fide repayment for consulting Zulu had done on proposed New Era projects. He explains the payment from Mabaso as an investment in one of his projects and produces a letter of invitation to Mabaso dated February 20 2006 to back this up. The NPA maintains this was all a sham to disguise the bribe payments. In court papers the prosecutor alleges that the letter to Mabaso was not found during raids on Majali and Mabaso and is a fabrication. The NPA also claims that New Era Capital was dormant and had no value.
For the better part of a year Majali has fought desperately to avoid arrest, launching a slew of high court actions and petitioning both Hawks boss Anwa Dramat and then-acting National Director of Public Prosecutions Mokotedi Mpshe to throw out the case. Both declined. Last week he won a reprieve from the South Gauteng High Court. The court suspended the decision to prosecute him pending the outcome of another Majali court challenge involving the same matter. Majali launched an application to review the decision to prosecute him in the North Gauteng High Court. The outcome, expected only next year, is dependent on the court accepting Majali's argument that the Promotion of Administrative Justice Act is unconstitutional.
The Act enables judicial review of government decision-making but specifically excludes decisions to prosecute.
Mabaso and Shabalala
Majali's alliance with Mabaso and Zulu ties him into another scandal involving provincial head of treasury Sipho Shabalala and a Uruguayan businessman, Gaston Savoi, that has prompted two ongoing criminal investigations. In an affidavit provided to Majali Mabaso raises the issue of his relationship with Shabalala. Querying why his relationship with Majali is singled out for investigation, Mabaso notes: "Indiza was involved in a number of other business … transactions during April 2006 … For example, Indiza agreed to advance a loan to Blue Serenity investments in the sum of R12-million." The directors of Blue Serenity were Sipho Shabalala and his wife Beatrice. Shabalala signed the loan agreement with Mabaso and Mabaso also became a 30% shareholder in an initial joint venture.
Majali also notes that during the same tender process in which Indiza was implicated another similar contract was awarded to EduSolutions, a company that has attracted negative media scrutiny in the past. He points out that Zulu is accused of inflating one score for Indiza - awarding the company four points when the maximum possible was two - and that she made the same "error" in regard to EduSolutions without attracting a criminal investigation.
The M&G understands Zulu is a friend of Shabalala, while Mrs Zulu's ex-husband works in the office of the chief executive of African Access, EduSolutions's parent company.
Case Two
But Shabalala has not entirely escaped scrutiny; his relationship with the mysterious Gaston Savoi is under criminal investigation, though he has yet to be charged or interviewed.
The investigation relates to a R1-million donation to the ANC allegedly solicited by Shabalala from Savoi, which is suspected of being a kickback for the award of a R44-million contract by the provincial cabinet for the supply of 20 water treatment plants. Savoi's company, Intaka, supplies water purification and medical equipment, including medical gas generators and portable scanners.
He was introduced to the KwaZulu-Natal government with what appeared to have been high-level political backing. According to a leaked affidavit by the investigating officer it was then-trade and industry minister Alec Erwin who first expressed interest in Intaka's products. The affidavit says it was decided that Rafiq Bagus, a protégé of Erwin's, "would facilitate the process of contacting the relevant persons in the KZN provincial government and Trade and Investment KZN". The investigating officer alleges Shabalala was also involved in negotiations. Meanwhile, as early as April 2004, Savoi formed a company, Skyros Medical Supplies, with Shabalala's wife, Beatrice.
He was clearly covering all bases. In a separate affidavit Savoi states that he was advised that Intaka should become BEE compliant: "To this end a company, Intaka KwaZulu-Natal, was registered. As a result of disagreement between various possible shareholders and Intaka's inability to procure further substantial orders for water purification plants, this company remained dormant." Intaka KZN's initial directors included Bagus and ANC provincial secretary Sipho Gcabashe.
According to the investigating officer's affidavit, Savoi alleges that Shabalala raised the possibility of a party-political donation fairly early on. It is alleged that after the award of the tender Savoi raised the matter again. Shabalala allegedly indicated he would be sent an invoice against which he should make payment of the donation.
An invoice for R1 053 000 was received from law firm Kuboni & Shezi purporting to request payment for legal work done. Savoi paid the amount and the provincial ANC has subsequently confirmed receipt of the donation, which, it claimed, was made in "good spirits" and not linked to any tender. Shabalala has thus far, through his lawyer, declined to respond to media questions about the incident.
Case Three
Savoi was also a witness in the aborted case against former KwaZulu-Natal health minister Peggy Nkonyeni, who allegedly received a gratuity for the purchase of a mobile ultrasound scanner through Savoi's company. Charges were provisionally withdrawn against Nkonyeni and two others in August, when it is understood another key witness suffered a stress-related breakdown and was unable to testify.
Source: Mail & Guardian
The charges flow from Majali's entanglement with a web of business and political interests in KwaZulu-Natal, the machinations of which have already resulted in the launch of three criminal investigations.
Case One
This is the case involving Majali, who shot to public prominence over his role in the Oilgate saga that saw him "donate" R11-million of PetroSA money to the ANC.
Now Majali is accused of laundering bribe payments made by businessman Jabulani Mabaso to a senior KwaZulu-Natal official, Pamela Zulu, for her to secure Mabaso a huge contract to supply school stationery. In May 2005 Mabaso's company, Indiza Infrastructure Solutions, and another company won a tender from the KwaZulu-Natal education department. Zulu, then with the provincial treasury, sat on the evaluation committee that recommended Indiza. A two-year tender award was confirmed in December 2005. Over an 18-month period Indiza charged the department, where Zulu was chief financial officer, approximately R449-million. A charge sheet against Zulu and Mabaso claims invoices were inflated to the tune of R197-million.
The National Prosecuting Authority (NPA) alleges a bribe was paid by Mabaso to Zulu via a number of Majali's companies.
According to the NPA:
* On April 21 2006 Mabaso deposited R2,5-million in the trust account of Majali's attorney. About R170 000 was transferred four days later to a Honda dealership.
* On May 12 2006 a further R200 000 was deposited into Zulu's account from another Majali company, Imvume Paymaster Services.
* At about that time Majali allegedly entered into an agreement with Zulu for Imvume Paymaster Services to buy shares she supposedly held in another Majali-related company, New Era Capital. She was to receive R4-million, with an initial down payment of R200 000.
In various court papers Majali maintains this represented bona fide repayment for consulting Zulu had done on proposed New Era projects. He explains the payment from Mabaso as an investment in one of his projects and produces a letter of invitation to Mabaso dated February 20 2006 to back this up. The NPA maintains this was all a sham to disguise the bribe payments. In court papers the prosecutor alleges that the letter to Mabaso was not found during raids on Majali and Mabaso and is a fabrication. The NPA also claims that New Era Capital was dormant and had no value.
For the better part of a year Majali has fought desperately to avoid arrest, launching a slew of high court actions and petitioning both Hawks boss Anwa Dramat and then-acting National Director of Public Prosecutions Mokotedi Mpshe to throw out the case. Both declined. Last week he won a reprieve from the South Gauteng High Court. The court suspended the decision to prosecute him pending the outcome of another Majali court challenge involving the same matter. Majali launched an application to review the decision to prosecute him in the North Gauteng High Court. The outcome, expected only next year, is dependent on the court accepting Majali's argument that the Promotion of Administrative Justice Act is unconstitutional.
The Act enables judicial review of government decision-making but specifically excludes decisions to prosecute.
Mabaso and Shabalala
Majali's alliance with Mabaso and Zulu ties him into another scandal involving provincial head of treasury Sipho Shabalala and a Uruguayan businessman, Gaston Savoi, that has prompted two ongoing criminal investigations. In an affidavit provided to Majali Mabaso raises the issue of his relationship with Shabalala. Querying why his relationship with Majali is singled out for investigation, Mabaso notes: "Indiza was involved in a number of other business … transactions during April 2006 … For example, Indiza agreed to advance a loan to Blue Serenity investments in the sum of R12-million." The directors of Blue Serenity were Sipho Shabalala and his wife Beatrice. Shabalala signed the loan agreement with Mabaso and Mabaso also became a 30% shareholder in an initial joint venture.
Majali also notes that during the same tender process in which Indiza was implicated another similar contract was awarded to EduSolutions, a company that has attracted negative media scrutiny in the past. He points out that Zulu is accused of inflating one score for Indiza - awarding the company four points when the maximum possible was two - and that she made the same "error" in regard to EduSolutions without attracting a criminal investigation.
The M&G understands Zulu is a friend of Shabalala, while Mrs Zulu's ex-husband works in the office of the chief executive of African Access, EduSolutions's parent company.
Case Two
But Shabalala has not entirely escaped scrutiny; his relationship with the mysterious Gaston Savoi is under criminal investigation, though he has yet to be charged or interviewed.
The investigation relates to a R1-million donation to the ANC allegedly solicited by Shabalala from Savoi, which is suspected of being a kickback for the award of a R44-million contract by the provincial cabinet for the supply of 20 water treatment plants. Savoi's company, Intaka, supplies water purification and medical equipment, including medical gas generators and portable scanners.
He was introduced to the KwaZulu-Natal government with what appeared to have been high-level political backing. According to a leaked affidavit by the investigating officer it was then-trade and industry minister Alec Erwin who first expressed interest in Intaka's products. The affidavit says it was decided that Rafiq Bagus, a protégé of Erwin's, "would facilitate the process of contacting the relevant persons in the KZN provincial government and Trade and Investment KZN". The investigating officer alleges Shabalala was also involved in negotiations. Meanwhile, as early as April 2004, Savoi formed a company, Skyros Medical Supplies, with Shabalala's wife, Beatrice.
He was clearly covering all bases. In a separate affidavit Savoi states that he was advised that Intaka should become BEE compliant: "To this end a company, Intaka KwaZulu-Natal, was registered. As a result of disagreement between various possible shareholders and Intaka's inability to procure further substantial orders for water purification plants, this company remained dormant." Intaka KZN's initial directors included Bagus and ANC provincial secretary Sipho Gcabashe.
According to the investigating officer's affidavit, Savoi alleges that Shabalala raised the possibility of a party-political donation fairly early on. It is alleged that after the award of the tender Savoi raised the matter again. Shabalala allegedly indicated he would be sent an invoice against which he should make payment of the donation.
An invoice for R1 053 000 was received from law firm Kuboni & Shezi purporting to request payment for legal work done. Savoi paid the amount and the provincial ANC has subsequently confirmed receipt of the donation, which, it claimed, was made in "good spirits" and not linked to any tender. Shabalala has thus far, through his lawyer, declined to respond to media questions about the incident.
Case Three
Savoi was also a witness in the aborted case against former KwaZulu-Natal health minister Peggy Nkonyeni, who allegedly received a gratuity for the purchase of a mobile ultrasound scanner through Savoi's company. Charges were provisionally withdrawn against Nkonyeni and two others in August, when it is understood another key witness suffered a stress-related breakdown and was unable to testify.
Source: Mail & Guardian
Monday, February 16, 2009
Senior National Prosecuting Authority (NPA) staff could be charged
The National Prosecuting Authority (NPA) has been aware for some time that Commissioner Mdluli from South African Police Service (SAPS) has been conducting an investigation in a matter involving some of its senior management.
However, the NPA is extremely concerned to learn from papers filed in a labour dispute that members of its senior management, including the acting head of the NPA Advocate Mokotedi Mpshe, are regarded as suspects in this matter.
There has been a considerable communication and meetings between Advocate Mpshe and Commissioner Mdluli in this regard, and no indication has been given to him that he is a suspect.
The acting head of the National Prosecutions Service, Advocate Sibongile Mzinyathi, has co-operated with SAPS. He has also not been informed that he is a suspect, nor was he warned as a suspect as required by law when he was interviewed about the matter.
An added concern is that an intercepted telephonic conversation of Advocate Leonard McCarthy, former head of the Directorate of Special Operation (DSO), appears to be the basis for this investigation. As far as the NPA is aware, it is a criminal offence to make a legal interception public as has been done in the labour dispute. It has also not been made clear to those interviewed whether this interception was made in terms of the law.
While the NPA is willing to co-operate in any investigation, it is very concerned about whether this matter is being handled in good faith and will seek to raise its concerns as soon as possible with the Minister of Safety and Security, Mr Nathi Mthethwa, and the acting National Police Commissioner Tim Williams.
The NPA regards the SAPS as a partner in the fight against crime, and respect its mandate to prevent and investigate crime. We trust that the existing inter-agency co-operation will assist in order to have our concerns addressed.
Enquiries:
Tlali Tlali
National Prosecuting Authority Spokesperson
Cell: 082 333 3880
Issued by: National Prosecuting Authority
16 February 2009
However, the NPA is extremely concerned to learn from papers filed in a labour dispute that members of its senior management, including the acting head of the NPA Advocate Mokotedi Mpshe, are regarded as suspects in this matter.
There has been a considerable communication and meetings between Advocate Mpshe and Commissioner Mdluli in this regard, and no indication has been given to him that he is a suspect.
The acting head of the National Prosecutions Service, Advocate Sibongile Mzinyathi, has co-operated with SAPS. He has also not been informed that he is a suspect, nor was he warned as a suspect as required by law when he was interviewed about the matter.
An added concern is that an intercepted telephonic conversation of Advocate Leonard McCarthy, former head of the Directorate of Special Operation (DSO), appears to be the basis for this investigation. As far as the NPA is aware, it is a criminal offence to make a legal interception public as has been done in the labour dispute. It has also not been made clear to those interviewed whether this interception was made in terms of the law.
While the NPA is willing to co-operate in any investigation, it is very concerned about whether this matter is being handled in good faith and will seek to raise its concerns as soon as possible with the Minister of Safety and Security, Mr Nathi Mthethwa, and the acting National Police Commissioner Tim Williams.
The NPA regards the SAPS as a partner in the fight against crime, and respect its mandate to prevent and investigate crime. We trust that the existing inter-agency co-operation will assist in order to have our concerns addressed.
Enquiries:
Tlali Tlali
National Prosecuting Authority Spokesperson
Cell: 082 333 3880
Issued by: National Prosecuting Authority
16 February 2009
Monday, January 14, 2008
Charges against Gerrie Nel withdrawn
Charges against Gerrie Nel, the head of the Directorate of Special Operations (DSO), or the Scorpions, in Gauteng, were withdrawn in the Pretoria Regional Court on Monday "After careful consideration of the evidence in the docket, the decision was made to withdraw the charges," chief prosecutor Matric Lupondo said during Nel's brief appearance.
Nel, who was dressed in a grey suit, managed to avoid the media, who were waiting outside court to get his reaction to the decision. "We are relieved with the outcome and Mr Nel just wants to go back to work and carry out his duties at the DSO," his legal counsel, Ian Small Smith, said. Nel was arrested at his Pretoria home in front of his wife and children at roughly 9pm last Tuesday by about 20 armed policemen. Although the charges were withdrawn, they could be reinstated at some stage, but Small Smith said he doubted this would happen. "They [the police] were widely criticised after the arrest, after [which] the senior prosecutor felt there wasn't a case, which means he should not have been arrested in the first instance, as there was not a case -- so I will be very surprised if there is another arrest," he said. He said should the police decide to recharge Nel, they could just ask him to hand himself over instead of arresting him again.
Small Smith believes that Nel should sue the state for wrongful arrest, but says this is for Nel to decide. "You have to understand that because of his position, there are other role-players here as well ...he is a responsible person and he will act responsibly," Small Smith said. Outside court, National Prosecuting Authority (NPA) spokesperson Tlali Tlali said: "In this particular case an investigation was carried out by the South African Police Service -- as a result of a lack of evidence in this matter, no case has to be answered by Mr Gerhard Nel."
On Wednesday last week, the Democratic Alliance (DA) had said that the arrest of Nel was a witch-hunt to protect police National Commissioner Jackie Selebi. Nel is heading the Scorpions' case against Selebi. "The axing of [suspended NPA head] Vusi Pikoli and now Gerrie Nel has all the appearance of a witch-hunt to protect Selebi," said DA spokesperson on Safety and Security Dianne Kohler Barnard. "The fact that it allegedly took 20 armed policemen to serve the warrant on Nel further reinforces this," she said.
Police spokesperson Superintendent Lungelo Dlamini had said Nel faced five charges including fraud, defeating the ends of justice and perjury. The charges are apparently related to offences allegedly committed between 2004 and 2005.
Meanwhile, Selebi's legal team were on Monday waiting for a date for a hearing for his application to stop an investigation against him after last week's attempt to have it heard urgently failed. "The judge president must provide a date for a full bench," said Selebi's advocate, Jaap Cilliers. Selebi stepped down from his post on Saturday and resigned as head of Interpol on Sunday. On Friday, the Pretoria High Court did not grant Selebi's application to have the matter heard urgently and it was struck off the roll, but the parties will arrange a date for the actual argument. In Selebi's notice of motion, he had wanted to ask for an interdict prohibiting the Scorpions and the Ministry of Justice and Constitutional Development from instituting any criminal prosecution against him, or taking any further steps in any envisaged criminal prosecution. He also wanted a copy of the allegations against him and an opportunity to answer them, to see copies of information justifying warrants of arrest issued against him, and copies of affidavits relating to him.
In court papers, the acting National Director of Public Prosecutions Mokotedi Mpshe said the NPA was ready to charge Selebi with corruption and defeating the course of justice. Alleged corrupt relations with murder accused Glen Agliotti, payments to the amount of R1,2-million and turning a blind eye to drug-smuggling were some of the reasons why they wanted to charge him, the court heard. "The charges against him are based on a strong prima facie case supported by the testimony of a range of witnesses and corroborated by real evidence," Mpshe said.
The NPA said it would meet this week to discuss how to proceed with the case. On Monday, Tlali said the options were either to go ahead with the Selebi matter regardless of Selebi's outstanding application, or to wait for the court to pronounce on Selebi's pending application. The NPA has said it would let Selebi know when it planned to make a move. "He will not be cuffed," said Tlali.
Cilliers said on Monday morning that as far as he knew, Selebi had not yet received notice that he would be wanted in court.
Source: Mail & Guardian
Nel, who was dressed in a grey suit, managed to avoid the media, who were waiting outside court to get his reaction to the decision. "We are relieved with the outcome and Mr Nel just wants to go back to work and carry out his duties at the DSO," his legal counsel, Ian Small Smith, said. Nel was arrested at his Pretoria home in front of his wife and children at roughly 9pm last Tuesday by about 20 armed policemen. Although the charges were withdrawn, they could be reinstated at some stage, but Small Smith said he doubted this would happen. "They [the police] were widely criticised after the arrest, after [which] the senior prosecutor felt there wasn't a case, which means he should not have been arrested in the first instance, as there was not a case -- so I will be very surprised if there is another arrest," he said. He said should the police decide to recharge Nel, they could just ask him to hand himself over instead of arresting him again.
Small Smith believes that Nel should sue the state for wrongful arrest, but says this is for Nel to decide. "You have to understand that because of his position, there are other role-players here as well ...he is a responsible person and he will act responsibly," Small Smith said. Outside court, National Prosecuting Authority (NPA) spokesperson Tlali Tlali said: "In this particular case an investigation was carried out by the South African Police Service -- as a result of a lack of evidence in this matter, no case has to be answered by Mr Gerhard Nel."
On Wednesday last week, the Democratic Alliance (DA) had said that the arrest of Nel was a witch-hunt to protect police National Commissioner Jackie Selebi. Nel is heading the Scorpions' case against Selebi. "The axing of [suspended NPA head] Vusi Pikoli and now Gerrie Nel has all the appearance of a witch-hunt to protect Selebi," said DA spokesperson on Safety and Security Dianne Kohler Barnard. "The fact that it allegedly took 20 armed policemen to serve the warrant on Nel further reinforces this," she said.
Police spokesperson Superintendent Lungelo Dlamini had said Nel faced five charges including fraud, defeating the ends of justice and perjury. The charges are apparently related to offences allegedly committed between 2004 and 2005.
Meanwhile, Selebi's legal team were on Monday waiting for a date for a hearing for his application to stop an investigation against him after last week's attempt to have it heard urgently failed. "The judge president must provide a date for a full bench," said Selebi's advocate, Jaap Cilliers. Selebi stepped down from his post on Saturday and resigned as head of Interpol on Sunday. On Friday, the Pretoria High Court did not grant Selebi's application to have the matter heard urgently and it was struck off the roll, but the parties will arrange a date for the actual argument. In Selebi's notice of motion, he had wanted to ask for an interdict prohibiting the Scorpions and the Ministry of Justice and Constitutional Development from instituting any criminal prosecution against him, or taking any further steps in any envisaged criminal prosecution. He also wanted a copy of the allegations against him and an opportunity to answer them, to see copies of information justifying warrants of arrest issued against him, and copies of affidavits relating to him.
In court papers, the acting National Director of Public Prosecutions Mokotedi Mpshe said the NPA was ready to charge Selebi with corruption and defeating the course of justice. Alleged corrupt relations with murder accused Glen Agliotti, payments to the amount of R1,2-million and turning a blind eye to drug-smuggling were some of the reasons why they wanted to charge him, the court heard. "The charges against him are based on a strong prima facie case supported by the testimony of a range of witnesses and corroborated by real evidence," Mpshe said.
The NPA said it would meet this week to discuss how to proceed with the case. On Monday, Tlali said the options were either to go ahead with the Selebi matter regardless of Selebi's outstanding application, or to wait for the court to pronounce on Selebi's pending application. The NPA has said it would let Selebi know when it planned to make a move. "He will not be cuffed," said Tlali.
Cilliers said on Monday morning that as far as he knew, Selebi had not yet received notice that he would be wanted in court.
Source: Mail & Guardian
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