National director of Public Prosecutions (NDPP), Mxolisi Nxasana, says a perception is being created that the police are trying to protect his deputy, Nomgcobo Jiba, from prosecution. Nxasana addressed the media at a press conference on Friday morning.
This week, a senior police official served a summons on Jiba related to an investigation into her conduct. But Jiba was not there to receive the summons, which Nxasana tried to deliver to her.
The police denied that the summons was issued, saying their case was not ready to go to court. “It is our view that the NPA, who are also complainants in the matter, jumped the gun when they issued a summons against advocate Jiba,” said SAPS spokesperson Lieutenant-General Solomon Makgale on Wednesday.
Nxasana was asked on Friday if he believed the police were trying to protect Jiba. “I don’t believe that she’s protected. But a perception is created, and it’s unavoidable, that she’s being protected at all costs,” Nxasana said.
Prosecution
He said the idea that a matter could only proceed to court once the investigation was complete was not true. “Matters in court, although I’m not condoning it, are enrolled and they get postponed time and time again, for further investigation. Therefore any suggestion that the matter can only be enrolled once its been investigated is misleading. It’s the responsibility of the investigating officer to make a decision as to whether the matter could be prosecuted,” Nxasana said.
He accused the police of “assuming the role of defence”. Nxasana said Jiba “knows her rights”, and if she felt that the summons issued against her was false, that he hoped charges would be laid and those responsible would be brought to book.
‘Very strange’ saga
Nxasana said the idea that Jiba was “awol” this week did not emanate from the National Prosecuting Authority (NPA). He said that on the morning the summons was issued, he had tried to contact her in an unrelated matter, but she was not at work. But this did not mean she was “absent without leave”. On the whole, Nxasana said he found the entire saga “very strange”.
“I was hoping that the police as our partners would tell us if they are ready to prosecute this matter. The police have now assumed the role of being the defence.
“I can only hope that after all this – the impression created is that the police were merely instructed by the prosecutor to take the summons – that if the conduct of the prosecutor (in Jiba’s matter) is found wanting, which I strongly deny, he’ll have also to face the might of the law.
“And if the police officers and others acted (involved in the investigation into Jiba) unlawfully I expect stern actions be taken against them.”
Summons
Questions still remain about who was responsible for delivering the summons to Jiba. Nxasana said, “I attempted to serve the summons upon her. But my understanding of the law is that that is one of the manners to effect service upon a person. My understanding is that the summons has been served upon her. And if she doesn’t appear in court I have no doubt in my mind that the prosecutor will do what is necessary and the court will be the final arbiter.
“When she refused to accept the summons, I wrote on the summons and witness wrote what happened.
“I’m more concerned about the integrity of the NPA especially because the public looks to and expects the NPA to do its work without fear or favour of prejudice as enjoined by the Constitution,” Nxasana said. “The integrity of the NPA must remain in tact and untarnished.”
Source: Mail & Guardian
Showing posts with label NPA. Show all posts
Showing posts with label NPA. Show all posts
Friday, March 27, 2015
Saturday, February 7, 2015
Zuma orders inquiry to probe Nxasana fitness to hold office
“The inquiry would look at whether the facts and circumstance surrounding his previous convictions were “constant with the conscientiousness and integrity of an incumbent of the office of the National Director of Public Prosecutions”, according to the terms of reference published on Friday.
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
It would look at the complaints of professional misconduct laid against him by the KwaZulu-Natal Law Society, that he had faced criminal charges for acts of violence and his arrest on criminal charges.
The inquiry would also look at media statements he issued or caused to be issued which undermined the office of the NDPP or the National Prosecuting Authority (NPA).
“[The inquiry will] make findings, report on and make recommendations concerning the matters.
“The terms of reference may be changed or varied at any stage prior to the conclusion of the inquiry as may be required.”
On January 31, Zuma announced that he was going ahead with a probe into Nxasana’s the fitness to hold office.
In August last year, Zuma notified Nxasana that he was considering suspending him pending an inquiry into his fitness to hold office.
Nxasana filed an urgent application in the High Court in Pretoria in September seeking an interdict to stop Zuma from suspending him before he had been provided with full details of the allegations against him and given a chance to make further representations.
Judge Joseph Raulinga postponed his application indefinitely.
Zuma announced his decision to institute the inquiry on July 5, after reports emerged that Nxasana had apparently not been given a security clearance because of past brushes with the law.
This included being tried for murder around 30 years ago. He was acquitted on the charge based on his version of self-defence.
Zuma said the enquiry would be completed in six weeks from when it starts, and could be extended by himself.
On Thursday, Zuma announced that advocate Nazeer Cassim would chair the inquiry. He would be joined by additional members advocate Lindi Nkosi-Thomas and advocate Sthembiso Mdladla.
In the terms of reference, Zuma said a report and recommendations would be submitted two weeks after the inquiry ended.
Cassim would determine the rules of the enquiry. –Sapa
Source: mail & Guardian
Friday, February 6, 2015
JZ ignores damning NPA report
Recommendations against the key actors in the Richard Mdluli fraud case have gone unheeded.
The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.
The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.
Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.
On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.
The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.
The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.
Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.
Both remain in office. NPA spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.
Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.
The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.
Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.
The move blocks any formal decision by the NPA on whether to prosecute the trio.
Nxasana inquiry
The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.
The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.
Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.
One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’
“I suspect he has not changed his position, which is why the president is now proceeding against him.”
Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.
Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.
Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.
Long shadow
The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.
It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.
The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.
Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.
The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.
At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.
Mrwebi’s move
Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.
Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.
In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.
At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.
However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.
Short shrift
The Yacoob report gives short shrift to these machinations.
“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.
“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …
“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.
“In our view his evidence was certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”
Yacoob on Mdluli
Turning to the Mdluli cases, the Yacoob report notes: “We are convinced, having looked at the dockets, that there was at the very least a prima facie case against Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”
In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.
“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …
“There is reason to believe he lied under oath and did not respect the court.
“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.
“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”
Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”
Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.
Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.
“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”
Mzinyathi could not be reached for comment.
Source: mail & Guardian
The report of an inquiry by retired Constitutional Court Justice Zak Yacoob into the turmoil at the National Prosecuting Authority (NPA) has made damning findings against former acting prosecutions head Nomgcobo Jiba and her key ally, specialised commercial crimes unit head Lawrence Mrwebi.
The report, sent to President Jacob Zuma in October, confirms previous criticism by the courts about Jiba and Mrwebi’s role in the decision to withdraw fraud and corruption charges against suspended crime intelligence boss Richard Mdluli.
Until this week Zuma had failed to respond to the Yacoob report’s recommendations (that Mrwebi should be suspended and an inquiry set up into improprieties at the NPA), reinforcing perceptions that Zuma is protecting his allies in the prosecution service.
On Thursday, after three months of increasing drama and infighting, the presidency announced that Zuma had established an inquiry into the NPA. But that enquiry will not follow the lines recommended by Yacoob. Instead it will deal with the fitness of Mxolisi Nxasana to be the national director of the NPA.
The precise terms of reference for the inquiry are due to be gazetted this Friday, February 6.
The Yacoob report, which included an investigation by advocate Kenneth Manyage, was conducted at the request of Nxasana, the very national director who must now face a presidential inquiry.
Unlike the inquiry now to be instituted into Nxasana, the Yacoob report has no legal force, but strengthens an earlier formal request by Nxasana to Zuma urging him to suspend Jiba and Mrwebi pending the investigation of their alleged perjury by lying under oath.
Both remain in office. NPA spokesperson Velekhaya Mgobhozi confirmed that Zuma, who alone has the power to suspend prosecutors at this level, has never responded to the request.
Jiba and Mrwebi declined to co-operate with Yacoob’s inquiry and Jiba questioned its mandate and lawfulness.
The NPA confirmed last week that the acting head of the Hawks, Major General Berning Ntlemeza, has requested the return of the perjury dockets of Jiba, Mrwebi and Sibongile Mzinyathi, another senior prosecutor accused of altering his evidence in the Mdluli matter.
Ntlemeza’s spokesperson has denied he personally intervened to retrieve the docket, saying “he has the right to ask for progress on any matter”.
The move blocks any formal decision by the NPA on whether to prosecute the trio.
Nxasana inquiry
The inquiry into the fitness of Nxasana comes hard on the heels of the suspension of Hawks commander Anwa Dramat, and what critics see as a political purge at the South African Revenue Service. The move appears to support the view that Zuma is moving against his perceived opponents across a broad front.
The inquiry into Nxasana was first announced more than six months ago, but appeared to have been suspended pending negotiations between Zuma and Nxasana.
Its formalisation now signals a new phase in the increasingly dirty infighting at the NPA. Two independent sources familiar with the matter told amaBhungane that Jiba and Mrwebi were the key stumbling blocks to a settlement between the president and the head of the NPA.
One said: “Nxasana wrote to Zuma and offered to go if Jiba and Mrwebi were removed. He told the president: ‘If they are out, I will go immediately.’
“I suspect he has not changed his position, which is why the president is now proceeding against him.”
Zuma first announced an inquiry into Nxasana in July last year after it emerged he was denied security clearance, purportedly because he did not disclose that he had killed a man at the age of 18.
Nxasana said he was acquitted of the 1985 murder and insisted the revelations about his past were part of factional machinations by his NPA rivals and politicians out to get rid of him.
Until Thursday’s announcement, Zuma had not announced the inquiry’s terms of reference and, following an urgent court application by Nxasana, did not suspend him.
Long shadow
The emergence of the Yacoob report has underscored the central role of the Mdluli saga in the battle for control of the NPA.
It reserves most of its criticism for Mrwebi, a special director appointed by Zuma to head the specialised commercial crime unit in the office of the national director.
The report notes that even before his appointment was gazetted in November 2011, Mrwebi had received hand-delivered representations from Mdluli’s lawyers.
Mdluli had been charged for alleged kickbacks he received in relation to vehicles bought using the crime intelligence division’s secret fund.
The charges emerged from a broader Hawks investigation of abuses of the fund and was under the direction of Pretoria commercial crimes unit boss Glynnis Breytenbach and her divisional director, Mzinyathi.
At the time Mdluli was also fending off a Hawks reinvestigation of murder relating to the unsolved 1999 killing of Mdluli’s former love rival, Oupa Ramogibe.
Mrwebi’s move
Following the representations on the corruption case, Mrwebi determined that the matter could only be investigated by the inspector general of intelligence – despite the latter disputing this interpretation – and instructed Breytenbach to withdraw the charges.
Along the way, Breytenbach appealed in vain to Jiba to review Mrwebi’s decision. She blamed her later suspension and protracted disciplinary battles with the NPA on her determination to prosecute Mdluli. She has since resigned and joined the Democratic Alliance.
In overruling Breytenbach and Mzinyathi, the Yacoob report finds that Mrwebi flouted legislation, stating that such decisions can only be taken “in consultation with” the divisional director.
At Breytenbach’s disciplinary hearing Mzinyathi gave evidence that he had disagreed with Mrwebi’s decision to withdraw charges against Mdluli.
However, when lobby group Freedom Under Law challenged decisions to withdraw murder and corruption charges against Mdluli, Mzinyathi provided an affidavit that appeared to suggest he had agreed with Mrwebi. It is that shift that forms the basis of the perjury investigation against him.
Short shrift
The Yacoob report gives short shrift to these machinations.
“It is trite law that the phrase ‘in consultation with’ means with the concurrence of,” it says. “Yet Mrwebi, for reasons that are difficult to comprehend, chose either not to understand this or to ignore the provision and withdraw charges against Mdluli in circumstances where Mr Mzinyathi did not agree with this course.
“Mr Mrwebi’s evidence at Ms Breytenbach’s disciplinary inquiry is telling … He veered, with some instability, among three possibilities: there was substantial agreement, it was 50-50, or no agreement at all …
“His evidence at the disciplinary hearing left a great deal to be desired. He displayed much arrogance, contradicted himself repeatedly and, in material respects, demonstrated considerable lack of understanding of the law and of legal processes.
“In our view his evidence was certainly not becoming of a person holding the position of special director. He certainly did not come across as a man of credibility or integrity … In our view there are serious criticisms of Mr Mrwebi which must be acted upon.”
Yacoob on Mdluli
Turning to the Mdluli cases, the Yacoob report notes: “We are convinced, having looked at the dockets, that there was at the very least a prima facie case against Major General Mdluli on the fraud and corruption as well as the murder and related charges. The fact they were withdrawn … are both matters of grave concern.”
In a clear reference to the perjury allegations against Jiba, Mrwebi and Mzinyathi, the report noted: “In regard to certain criminal charges against senior NPA personnel: we confirm our view that there is a prima facie case in all of them.
“Mr Mrwebi has got a great deal to answer for … the courts have accused him, with justification, of not telling the truth, not being fully frank with the court …
“There is reason to believe he lied under oath and did not respect the court.
“Mzinyathi, too, lied under oath. Initially without qualification he stated that he had not agreed to the withdrawal of fraud and corruption charges. In his later affidavit he virtually (but not quite) said that he had agreed.
“Jiba said in the high court that she knew nothing about the withdrawal of these cases and the court found it difficult to believe her. We agree … we find it quite incredible that she did not know about these cases.”
Mrwebi told amaBhungane this week that it was the first time he had heard the allegations contained in the Yacoob report. “I have not seen that report, so I can’t comment on these allegations.”
Jiba said she could not comment on Yacoob’s findings because she had never seen the report and “I don’t even know under what mandate or legal prescripts Judge Yacoob acted”.
Asked why she refused to be interviewed by Yacoob, Jiba said: “I could not subject myself to something that is unlawful … you can’t just jump for people. People can’t just jump and say we are now investigating you. There are processes you have to follow.
“And in as much as people want to appear as if they are protecting the rule of law, the rule of law must then be applicable to everybody.”
Mzinyathi could not be reached for comment.
Source: mail & Guardian
Friday, August 15, 2014
NPA boss Nxasana wins battle against suspension - for now
The National Prosecuting Authority boss Mxolisi Nxasana appears to have won round one in his battle against President Jacob Zuma to keep his job.
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Following a meeting between the parties today, Nxasana has not been suspended by Zuma, as had been widely expected this week, the Mail & Guardian has established.
Talks were held this morning after Nxasana filed an urgent court interdict on Tuesday to try to compel Zuma to provide him with further clarity on why he wants to suspend him.
The matter was postponed indefinitely but kept on the court roll, and efforts are being made to try to settle the dispute out of court.
Anticipating Nxasana’s suspension
The court action was seen by Zuma’s supporters as a pre-emptive strike, as they were anticipating Nxasana’s suspension by the President on Tuesday, said an NPA source.
Nxasana’s supporters believe attempts were made to get him to resign after the prosecuting authority moved to recharge suspended crime intelligence boss Richard Mdluli with fraud and corruption.
Trouble erupted seven months after he took up his post when Nxasana was asked in May by former justice minister Jeff Radebe to step down, as he had apparently failed his security clearance.
Nxasana pointed out in his court papers this week that Radebe had brought up cases from 30 years ago, and he had declared most of them.
One of these cases involved a murder charge he faced in court when he was 18, which he said he had not declared because he was acquitted on the grounds that he had acted in self-defence.
While some NPA legal figures have clashed with Nxasana, a number of NPA prosecutors have told the M&G they will not stand by and allow Nxasana to be removed from office, without good reason.
“We believe in his integrity and independence,” said a senior NPA prosecutor this week. “He is the only one who can restore our dignity and pride and bury the rot.”
Nxasana had a deadline for Tuesday to provide reasons why he should not be suspended.
Zuma wrote him a letter and made it clear that he intends to suspend Nxasana while he waits for a commission of inquiry into his fitness to hold office to be convened. However, Nxasana said he would not provide the President with reasons why he should not be suspended unless he has further details about why he wants to suspend him.
Nxasana and Zuma are expected to meet again next week, but the presidency is keeping mum on details.
Further court action could take place if Nxasana is not happy with the outcome, said NPA sources, if Nxasana is still not provided with further details on why Zuma wants to suspend him.
Zuma’s spokesperson Mac Maharaj confirmed in a press statement the President had met with the National Director of Public Prosecutions (NDPP) this morning and said they had discussed various matters around the President’s intention to hold an inquiry into the NDPP’s fitness to hold office.
“The President has taken note of the issues raised by the NDPP,” said Maharaj. “An announcement will be made when all the processes have been completed.”
Source: Mail & Guardian
Sunday, August 10, 2014
Criminal charges laid against senior NPA officials
Criminal charges have been laid against three National Prosecuting Authority senior officials, the prosecuting authority confirmed on Sunday.
“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.
City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.
Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.
Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa
Source: Mail & Guardian
“Yes, it is indeed correct,” NPA spokesperson Nathi Mncube said in reply to an SMS from Sapa. Former acting NPA head Nomgcobo Jiba, director of public prosecutions for north Gauteng Sibongile Mzinyathi and head of the NPA’s specialised commercial crimes unit Lawrence Mrwebi were facing charges of perjury.
City Press newspaper reported that the charges followed court findings made about the NPA’s leadership last year. This was after rights group Freedom Under Law successfully applied to overturn the dropping of criminal charges against former crime intelligence boss Richard Mdluli.
Mdluli is expected back in court on Monday reportedly on charges which included kidnapping, assault and intimidation. Mncube confirmed he was expected to appear in the Palm Ridge Magistrate’s Court but would not say on what charges. According to the newspaper, National Director of Public Prosecutions Mxolisi Nxasana has written to President Jacob Zuma asking him to suspend Jiba, Mrwebi and Mzinyathi, pending an inquiry into their fitness to hold office.
Nxasana himself could be facing suspension, pending an inquiry. This was after reports emerged that he had apparently not been given a security clearance for the job as NPA boss because of past brushes with the law. Earlier this week, the presidency said Zuma had notified Nxasana that he was considering suspending him with full pay. – Sapa
Source: Mail & Guardian
Wednesday, July 16, 2014
The NPA's reputation is in tatters: Our state institutions need to be rescued
Speech by the DA's Shadow Minister of Justice, Glynnis Breytenbach MP during the budget vote debate on Justice, Parliament, July 15 2014:Our state institutions need to be rescued
South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.
However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe.
This has a negative effect on the fight against crime in general, and the fight against corruption in particular. This in turn has a disastrous effect on the economy and investment. International investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. A knock-on effect is the high unemployment rate, and the inability to create jobs and employ particularly young people and young graduates.
The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the Criminal Justice System. This, very briefly, was designed to address the most serious shortcomings of the Criminal Justice System, and was to create an effective and efficient so-called Integrated Criminal Justice System. We now find ourselves in mid-2014, and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and the Criminal Justice Cluster in pursuit of these goals, with very little or nothing to show for it.
This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in the pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.
The National Prosecuting Authority (NPA) is an important player in the Criminal Justice Cluster, and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is as a direct result of this. Acting heads, who by their very nature are directionless, and unsuitable appointments have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority, and the Criminal Justice Cluster as a whole.
The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organization to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons.
The hapless Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane was defended to the doors of the Constitutional Court, the equally unsuitable Nomcgobo Jiba was rushed up the corporate ladder in order to be able to replace him, and to oversee the continued stonewalling surrounding the spy tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgements. Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed Mxolisi Nxasana, only to institute an enquiry into his fitness to hold office ten months later, and only after he called for the spy tapes and related documents and re-instituted the charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.
The only sensible thing to do now is for the President to widen the still to be announced terms of reference of the Commission to include an enquiry into the behaviour of other senior managers, notably Adv Jiba and Adv Mrwebi. Both were severely criticized in judgements in the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organization.
The Special Investigating Unit (SIU) has not fared much better than the National Prosecuting Authority. Beset by leadership issues the Special Investigating Unit has largely failed to fulfill its proclaimed goals, despite a year on year increase in its budget. Many investigations have dragged on for years, and appear to be nowhere near completion. The Bosasa matter has been live for more than 5 years now, still with no end in sight, and the Head, Adv Soni, admitted last week before the Portfolio Committee that he could give no indication as to when the Nkandla investigation and report would be finalized and placed before the President.
Despite the importance of and public interest in the matter, the Special Investigating Unit only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter, and the obvious importance and pressure to finalize it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.
The current presentation before the Portfolio Committee reveals an enormous decrease in cases expected to be finalized, but despite this the Special Investigating Unit felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again we see an important component in the Criminal Justice Cluster being reduced to a somewhat embarrassing ineffectiveness due to overt political meddling.
The office of the public protector is a chapter 9 institution and an independent body reporting to Parliament, whose mandate is being followed and fulfilled, but is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain limited sources, simply because she refuses to bow to political pressure and refuses to allow political interference in the institution, which derives its independence from the Constitution.
Again, the thread of political interference in these institutions is glaring, and the attack on the independence of the Criminal Justice Cluster is palpable.
No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. And it is our duty, the duty of this fifth Parliament, to all those citizens who voted for us to sit here, to make it stop, and to work towards making the Criminal Justice Cluster effective and efficient, in order to fulfill the role it is enjoined to fill by the Constitution. If we allow the Rule of Law to be eroded any further, we will find it impossible to regain the lost ground.
The great Russian author, Aleksandr Solzhenitsyn wrote: " in keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations."
We are tired. We want justice now. Sikathele manje. Sifuna ukulunga.
Issued by the DA, July 15 2014
Source: Politicsweb
South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all our citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice cluster in the performance of their duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.
However, this has not been done successfully or at all, and the web of terror that crime throws over South Africa is so strong and far-reaching that every South African has been constrained by it in some way. The lives of many committed and talented South Africans have been lost. Many are deeply traumatised. We have become suspicious of our fellow citizens and distrusting of the institutions that are supposed to keep us safe.
This has a negative effect on the fight against crime in general, and the fight against corruption in particular. This in turn has a disastrous effect on the economy and investment. International investors are hesitant to invest where they believe that they may have no recourse, where they have little faith in the ability of the legal framework to offer adequate protection. A knock-on effect is the high unemployment rate, and the inability to create jobs and employ particularly young people and young graduates.
The 2007 Cabinet adopted a so-called seven-point plan to review and revamp the Criminal Justice System. This, very briefly, was designed to address the most serious shortcomings of the Criminal Justice System, and was to create an effective and efficient so-called Integrated Criminal Justice System. We now find ourselves in mid-2014, and no closer to achieving even the most modest of the goals set out in that plan. Seven years of planning, budgeting and promises of implementation have left us nowhere. Billions have been spent by the Department of Justice and the Criminal Justice Cluster in pursuit of these goals, with very little or nothing to show for it.
This year, again, in his overview of the proposed budget, Minister Masutha refers to these goals, how they will be pursued and achieved and how much will be spent in the pursuit thereof. And this year, again, there can be no realistic expectation of any success in this regard.
The National Prosecuting Authority (NPA) is an important player in the Criminal Justice Cluster, and the institution upon which the achievement of these goals largely rests, is in disarray. It has been without a permanent head for long periods, and the ensuing chaos is as a direct result of this. Acting heads, who by their very nature are directionless, and unsuitable appointments have wreaked havoc on a once strong and dependable institution. This is, of course, the direct result of unabashed and undisguised political meddling in the affairs of the National Prosecuting Authority, and the Criminal Justice Cluster as a whole.
The National Prosecuting Authority is an institution that should have no dirty linen to wash, let alone to be washed in public. Yet week after week we see it lurch from one damaging scandal to the next. Its reputation is in tatters. It is constantly in the news, and never for the right reasons. The public at large has no faith in the organization to fulfill even its most basic mandate, and a budget of billions annually sees no real improvement in its daily functions. Millions are wasted on litigation for poor or no reasons.
The hapless Koki Mpshe was appointed after the inexcusable firing of Vusi Pikoli, solely to facilitate the withdrawal of the corruption and other charges against the President. The appointment of the wholly unsuitable Menzi Simelane was defended to the doors of the Constitutional Court, the equally unsuitable Nomcgobo Jiba was rushed up the corporate ladder in order to be able to replace him, and to oversee the continued stonewalling surrounding the spy tapes saga and the protection of Richard Mdluli, astonishingly even in the face of various court judgements. Under pressure from various sources, the President, having had plenty of time to apply his mind, appointed Mxolisi Nxasana, only to institute an enquiry into his fitness to hold office ten months later, and only after he called for the spy tapes and related documents and re-instituted the charges against Richard Mdluli. It takes no great amount of intelligence to glean the golden thread in this sad tale.
The only sensible thing to do now is for the President to widen the still to be announced terms of reference of the Commission to include an enquiry into the behaviour of other senior managers, notably Adv Jiba and Adv Mrwebi. Both were severely criticized in judgements in the High Court and the Supreme Court of Appeal. The top structure of the National Prosecuting Authority needs to be cleaned out so that those who remain can get on with the core business of the organization.
The Special Investigating Unit (SIU) has not fared much better than the National Prosecuting Authority. Beset by leadership issues the Special Investigating Unit has largely failed to fulfill its proclaimed goals, despite a year on year increase in its budget. Many investigations have dragged on for years, and appear to be nowhere near completion. The Bosasa matter has been live for more than 5 years now, still with no end in sight, and the Head, Adv Soni, admitted last week before the Portfolio Committee that he could give no indication as to when the Nkandla investigation and report would be finalized and placed before the President.
Despite the importance of and public interest in the matter, the Special Investigating Unit only managed to gain access to the premises at Nkandla on 3 July 2014. Adv Soni declined to say who was responsible for the delay, despite the parties involved being legally obliged to co-operate with him. Given the profile of this matter, and the obvious importance and pressure to finalize it, no real progress could be demonstrated, and certainly no will to drive the matter was discernible.
The current presentation before the Portfolio Committee reveals an enormous decrease in cases expected to be finalized, but despite this the Special Investigating Unit felt comfortable to approach Parliament and request an increased budget in order to meet its significantly decreased goals. There can be very little confidence that even these modest goals will be met. Again we see an important component in the Criminal Justice Cluster being reduced to a somewhat embarrassing ineffectiveness due to overt political meddling.
The office of the public protector is a chapter 9 institution and an independent body reporting to Parliament, whose mandate is being followed and fulfilled, but is clearly under fire due to the independence being exhibited. The Public Protector herself is vilified, accused of overreaching her mandate, accused of playing politics and the target of severe personal criticism from certain limited sources, simply because she refuses to bow to political pressure and refuses to allow political interference in the institution, which derives its independence from the Constitution.
Again, the thread of political interference in these institutions is glaring, and the attack on the independence of the Criminal Justice Cluster is palpable.
No amount of budget increases will fix this. No amount of money is going to make these institutions effective in the face of such interference. The interference must stop. And it is our duty, the duty of this fifth Parliament, to all those citizens who voted for us to sit here, to make it stop, and to work towards making the Criminal Justice Cluster effective and efficient, in order to fulfill the role it is enjoined to fill by the Constitution. If we allow the Rule of Law to be eroded any further, we will find it impossible to regain the lost ground.
The great Russian author, Aleksandr Solzhenitsyn wrote: " in keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations."
We are tired. We want justice now. Sikathele manje. Sifuna ukulunga.
Issued by the DA, July 15 2014
Source: Politicsweb
Saturday, July 5, 2014
Zuma announces inquiry into NPA boss Nxasana
President Jacob Zuma instituted an inquiry into NPA boss Mxolisi Nxasana, the presidency announced on Saturday.
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
“President Jacob Zuma has, in terms of Section 12(6)(a)(iv) of the National Prosecuting Authority Act 32 of 1998 and after careful consideration of all the matters before him, decided to institute an inquiry into the National Director of Public Prosecutions, Mr Mxolisi Nxasana,” a statement from the presidency said.
Maharaj said details on whether Nxasana would be suspended will be announced in due course.
Nxasana was thrust into the limelight after he was denied a clearance certificate, when he did not disclose that he had killed a man when he was 18 years old.
Nxasana said he was acquitted of the murder, which took place in 1985 in Umlazi, outside Durban, but this had now come back to haunt him. Nxasana insisted this is part of factional machinations by his rivals at the NPA and politicians who want to get rid of him.
Circulating stories
In May, Nxasana told the Mail & Guardian: “There have been stories circulating, which I will tell a commission of inquiry if there is one,” Nxasana. “They have spread rumours that I want to reinstate charges against President Jacob Zuma, that I want to reinstate charges in the Amigos case in Durban [involving ANC politicians].”
A report by the Sunday Times, claimed that pensioner Aggrieneth Khumalo – the mother of Nxasana’s ex-girlfriend Joyce Khumalo – painted a picture of a man who was a “woman beater, bully and thug” when recalling her late daughter’s relationship with the NPA boss.
Khumalo died in 1998 in an unrelated incident after her relationship with Nxasana.
NPA spokesperson Bulelwa Makeke referred to the report as “an apparent crusade against Nxasana” and told the M&G that the prosecuting agency was not interested in giving the report “any credence”.
Earlier, Zuma denied reports in the New Age that he ordered Nxasana to resign or face being fired.
“The president has not met with Mr Nxasana and has not asked him to resign,” Maharaj said.
NPA spokesperson Nathi Ncube said the article was a lie. “The story is a pure fabrication by information peddlers with a very active imagination,” Ncube told a South African Press Association reporter via SMS.
Sources close to the NPA and the presidency reportedly told the New Age that Zuma met Nxasana recently to discuss Nxasana’s future. It was at that meeting that Zuma reportedly asked Nxasana to resign or face being fired.
Source: Mail & Guardian
Monday, December 2, 2013
Mdluli wins bid to appeal charges ruling
Suspended police crime intelligence head Richard Mdluli, the National Prosecuting Authority and the Specialised Commercial Crime Unit may appeal against a ruling that charges against him must be reinstated, the high court in Pretoria ruled on Monday.
Freedom Under Law (FUL) did not oppose the application, and said the matter concerned issues of significant public importance which ought to be aired in the Supreme Court of Appeal.
An application by the public interest group to revive a previous interim interdict stopping Mdluli from returning to work would continue only at a later stage.
National police commissioner Riah Phiyega has agreed to give the FUL 30 days' notice if she wants to reinstate Mdluli.
The FUL said it reserved its rights to approach the court again.
Deputy Judge President of the high courts in Johannesburg and Pretoria Aubrey Ledwaba granted leave to appeal against Judge John Murphy's ruling in September in favour of the FUL.
Decision set aside
Murphy had set aside decisions to withdraw charges of money laundering and murder, and disciplinary proceedings, against Mdluli.
Ledwaba said there were compelling reasons to grant leave, and there was a reasonable prospect that another court might come to a different conclusion.
Considering the importance and complexity of the issues, the Supreme Court of Appeal in Bloemfontein would be the correct court to deal with the matter.
Ledwaba said Murphy was not available to hear the application. The application for leave to appeal began before Murphy in October, but due to "some unfortunate altercation" between him and William Mokhari SC, Ledwaba intervened and postponed the matter indefinitely.
The altercation started when Mokhari, who represented the police commissioner, told Murphy it was presumptuous to ask if Phiyega intended reinstating Mdluli.
Murphy repeatedly told Mokhari to sit down and when he refused, Murphy walked out of the court. Mokhari, who is the chairperson of the Johannesburg Bar Council, has since laid a formal complaint about the judge's "demeaning" remarks with the Judicial Service Commission. – Sapa
Freedom Under Law (FUL) did not oppose the application, and said the matter concerned issues of significant public importance which ought to be aired in the Supreme Court of Appeal.
An application by the public interest group to revive a previous interim interdict stopping Mdluli from returning to work would continue only at a later stage.
National police commissioner Riah Phiyega has agreed to give the FUL 30 days' notice if she wants to reinstate Mdluli.
The FUL said it reserved its rights to approach the court again.
Deputy Judge President of the high courts in Johannesburg and Pretoria Aubrey Ledwaba granted leave to appeal against Judge John Murphy's ruling in September in favour of the FUL.
Decision set aside
Murphy had set aside decisions to withdraw charges of money laundering and murder, and disciplinary proceedings, against Mdluli.
Ledwaba said there were compelling reasons to grant leave, and there was a reasonable prospect that another court might come to a different conclusion.
Considering the importance and complexity of the issues, the Supreme Court of Appeal in Bloemfontein would be the correct court to deal with the matter.
Ledwaba said Murphy was not available to hear the application. The application for leave to appeal began before Murphy in October, but due to "some unfortunate altercation" between him and William Mokhari SC, Ledwaba intervened and postponed the matter indefinitely.
The altercation started when Mokhari, who represented the police commissioner, told Murphy it was presumptuous to ask if Phiyega intended reinstating Mdluli.
Murphy repeatedly told Mokhari to sit down and when he refused, Murphy walked out of the court. Mokhari, who is the chairperson of the Johannesburg Bar Council, has since laid a formal complaint about the judge's "demeaning" remarks with the Judicial Service Commission. – Sapa
Friday, October 18, 2013
New NPA boss Nxasana seeks clarity on Mdluli case
Mxolisi Nxasana says his decision to wait on an appeal court ruling to reinstate charges against Richard Mdluli is not a delaying tactic.
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Several security checks are required before the Mail & Guardian meets the recently appointed national director of public prosecutions (NDPP), Mxolisi Nxasana, at the offices of the National Prosecuting Authority (NPA) in Pretoria this week.
Even our cellphones are locked up until we have finished the interview with the 45-year-old attorney who has what is probably one of the toughest jobs in crime-fighting and justice in South Africa.
Nxasana's Durban colleagues approached him about putting himself forward for the top job at the NPA and he agreed. The next step was an interview by a team from the presidency.
Nxasana, who was running his own legal practice, was in court in August, with a client on the stand, when his cellphone started vibrating. The news of his appointment that day changed his life dramatically.
His appointment was made after President Jacob Zuma was taken to court by the civil rights group the Council for the Advancement of the South African Constitution, to force him to appoint a permanent NDPP.
It meant a rushed move and he and his wife, Amagugu Khanyile Nxasana, who is also an attorney and works for a mining company, are still busy settling their family in Gauteng.
Nxasana says he has prioritised the cases of suspended police crime intelligence head Richard Mdluli and NPA prosecutor, advocate Glynnis Breytenbach. Breytenbach, now back at work downstairs in the sprawling NPA offices, still maintains that she was suspended and charged to stop her from proceeding with a fraud case against Mdluli.
Cool-headed attorney
Shortly after his appointment Nxasana informed Parliament that he had launched an application for leave to appeal a Pretoria High Court judgment ordering the reinstatement of criminal charges against Mdluli.
As a result, he soon went from "hero to villain", according to some news reports. The cool-headed attorney says he was not given a chance to explain the rationale behind the move.
The nub of the NPA's court application, seen by the M&G, is that the courts should not interfere with the decisions of an independent prosecutor except in exceptional cases.
The damning judgment by Judge John Murphy was handed down after civil society organisation Freedom Under Law made an application to the Pretoria High Court asking it to overturn the decision by specialised commercial crimes unit head Lawrence Mrwebi to drop the charges against Mdluli.
In his judgment, Murphy ordered the immediate reinstatement of corruption and murder charges against Mdluli.
"We just want the higher courts to give guidance because this is a first judgment of its kind," says Nxasana emphatically.
"If I want to reinstate the charges against Mdluli, I can. Nobody should view the decision as a delaying tactic. I owe nothing to Mdluli and I haven't even met him. I owe the NPA and the people of South Africa, and no one else.
"I am hoping that Judge Murphy will grant us leave to appeal to the Supreme Court of Appeal."
Spy tapes
Nxasana says he is yet to meet Zuma himself and also insists that his cannot be considered a political appointment.
When asked whether he would take up the case of former acting NPA head Nomgcobo Jiba, who came under fire for apparently refusing to hand over the controversial "spy tapes" that let Zuma off the hook, Nxasana says he is not yet aware of what is on the tapes.
"If I feel that there is prima facie evidence that will ultimately warrant prosecution I can tell you my duty, my responsibility, will be mandated by the Constitution, regardless of who appointed me," he says.
"Without putting a name to any person, if a crime is committed and there is admissable and credible evidence, my team will come to a conclusion. It doesn't matter what position a person holds. Even if it is President Zuma, or whoever it is."
Mention his former mentor and close friend, the late attorney Mvuseni Ngubane, and Nxasana's face immediately lights up.
"Whenever I think about him I know he was going to be first person to be proud of my appointment," he says. "I was his candidate attorney, his product. We went on to become very good friends. He had faith in me. So I did look up to him."
Unclear
Nxasana's reflections on Ngubane are tinged with sadness.
"Mvuseni was my mentor. I wish he were around. He would be able to say: 'You are what you are because of me.'
"As an officer of the court he was a very principled man, who held the value and ethos of the profession in very high esteem. He wouldn't do anything to compromise his profession, and he instilled this in me."
Ngubane was found dead in the back of his Mercedes-Benz in his garage in Durban in 2012, in what was described as a suspected suicide.
The attorney had been appointed to the key position of secretary of the Arms Procurement Commission and would have controlled all the evidence gathered by the inquiry, which is now under way.
To this day, it is unclear why he decided to take his life, says Nxasana.
Regularly detained
"It was suicide. I was glad that I was among the first persons to arrive at the scene and to witness what had happened myself and to see where he was sitting with the firearm. It was just next to him," says Nxasana, who wants to dispel any rumours that his friend's death might not have been a suicide.
"This was captured on the CCTV monitor, which was viewed, and there was absolutely no foul play."
After his appointment Nxasana relinquished his post as chairperson of the Durban branch of the Black Lawyers' Association, a position Ngubane had held until his death.
Nxasana, who is little known outside of KwaZulu-Natal, says he owes his fighting spirit to many people, including his father, Bhakisisa Harold Nxasana, who was a trade unionist in the clothing industry.
The older Nxasana, he says, was regularly detained by police at the family's home in Umlazi. On his release the house would be filled with inspiring visitors like anti-apartheid lawyer Mlungisi Griffiths Mxenge and political activist Rick Turner, both of whom were later assassinated, allegedly by apartheid security forces.
His mother, Toti Clotilda Nxasana, a teacher, mostly raised the family single-handedly, sometimes with financial help from his father's prominent friends.
The Richard Mdluli saga
In early 2011 the police's suspended crime intelligence head, Richard Mdluli, was arrested and charged with various crimes, including murder, intimidation, attempted murder, kidnapping, assault with intent to do grievous bodily harm and defeating the ends of justice.
Later the same year he was arrested again and charged with further counts of fraud, corruption, theft and money laundering. This was after he was sensationally accused of looting the police secret service account for his personal benefit.
The charges against him were withdrawn, but the Pretoria High Court ruled recently that the National Prosecuting Authority (NPA) should reinstate the charges. The NPA has launched an urgent application for leave to appeal that judgment.
Last month the police's specialist unit, the Hawks, laid a criminal charge against the NPA's specialised commercial crimes unit head, Lawrence Mrwebi, for defeating the ends of justice by dropping the corruption charges against Mdluli. – Glynnis Underhill
Source: Mail & Guardian
Friday, August 30, 2013
Zuma appoints new NPA head
President Jacob Zuma has appointed Mxolisi Nxasana as the new national director of public prosecutions, says the presidency.
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Nxasana, from the KwaZulu-Natal division of the high court, would start his new role on October 1, spokesperson Mac Maharaj said in a statement.
"Nxasana currently practises as an attorney with a wealth of experience in criminal litigation, coupled with his having occupied senior positions in the legal profession – including the chairpersonship of the KwaZulu-Natal Law Society," said Maharaj.
The NPA has been without a permanent chief since November 2011, after Menzi Simelane's appointment was declared invalid.
Simelane's appointment as NPA boss was deemed "inconsistent with the Constitution and invalid" as Zuma did not apply his mind in the decision.
Simelane, who Zuma placed on paid leave after the decision, was appointed NPA boss in 2009 after the 2008 Ginwala inquiry severely criticised him.
The inquiry, which investigated the fitness of former NPA head Vusi Pikoli's ability to hold office, labelled Simelane's evidence before the inquiry as "contradictory and without basis in fact or in law" and blamed him for suppressing a disclosure of information. – Sapa
Source: Mail & Guardian
Friday, October 5, 2012
Democratic Alliance v President of South Africa and Others
On Friday 5 October 2012, the Constitutional Court gave judgment in a case about whether the appointment of Mr Simelane as National Director of Public Prosecutions (NDPP) by the President of the Republic was constitutionally valid. In an application brought by the Democratic Alliance (DA), the North Gauteng High Court had held that the President’s decision was indeed valid, but the Supreme Court of Appeal set aside the decision as having been irrational. The Minister for Justice and Constitutional Development (Minister) sought to appeal against this decision.
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
Mr Simelane had given evidence before the Ginwala Commission of Enquiry concerning the conduct of the then NDPP, Mr Vusi Pikoli. The Report of the Ginwala Enquiry had severely criticised Mr Simelane’s approach to and evidence before that Enquiry and the Public Service Commission (PSC) had recommended that disciplinary proceedings be instituted against him. The Minister rejected the recommendations of the PSC and advised the President to ignore the findings of the Enquiry and Mr Simelane’s evidence before the Enquiry in the process of appointing Mr Simelane as NDPP. The President did not take these matters into account in making his decision to appoint Mr Simelane.
In a unanimous judgment (subject to a qualification by Zondo AJ in relation to one paragraph of the judgment), Yacoob ADCJ reached a number of legal conclusions:
a. The requirement that the National Director of Public Prosecutions must be a fit and proper person for appointment with due regard to his conscientiousness and integrity was not a matter to be determined according to the subjective opinion of the President. It was rather a jurisdictional pre-requisite to be determined objectively.
b. The requirement of rationality obliges courts to engage in an evaluation of the relationship between the means employed to reach a decision on the one hand, and the purpose for which the power to make the decision was conferred, on the other.
c. Each and every step in the process of reaching the decision must be rationally related to the outcome.
d. A failure to take into account relevant material that colours the entire process with irrationality will render the decision irrational.
e. The rationality test is the least invasive form of legal scrutiny and its applicability in respect of Executive decisions flows from an acceptance and recognition of the separation of powers, not the converse.
f. The purpose of the conferral of the power to appoint the National Director of Public Prosecutions on the President was to ensure that the appointee was sufficiently conscientious and had the integrity required to be entrusted with the responsibilities of the office.
g. Dishonesty is inconsistent with the conscientiousness and integrity required for the proper execution of the responsibilities of a National Director of Public Prosecutions.
The Constitutional Court evaluated Mr Simelane’s evidence at the Ginwala Enquiry and concluded that the evidence was contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility. The failure to take this into account would, absent acceptable reasons for not doing so, not be rationally related to the achievement of the purpose of appointing a person of conscientiousness and integrity as NDPP. The Constitutional Court held further that the reasons the Minister had provided for withholding this evidence from the President was insufficient,and that the failure by the President to take into account this evidence without more was irrational in the sense of not being rationally related to and inconsistent with the purpose of appointing, as NDPP a fit and proper person with due regard to his conscientiousness and integrity.
The President’s decision was set aside and the Minister was ordered to pay the costs of the DA, including costs of two counsel.
In a short concurring judgment, Zondo AJ agreed with the conclusion, most of the reasoning and order in the main judgment. However, he took the view that, on the facts, it was not necessary to express a definitive view on whether or not a statutory body such as the PSC was required to have given Mr Simelane an opportunity to be heard before it reached its conclusions and made its recommendations to the Minister. This was because the Minister, who was the authority in whom the power to institute a disciplinary hearing into Mr Simelane’s conduct vested, did give Mr Simelane the opportunity to be heard.
Source: Polity
Wednesday, September 12, 2012
'Corruption at forensic lab sabotages convictions'
ALLEGED wide-scale corruption and theft at the country's leading police forensic science laboratory is leading to massive backlogs in the finalisation of horrific crimes, including sexual assaults.
A detailed dossier compiled by the Police and Prisons Civil Rights Union (Popcru) has blown open the lid on alleged criminal activities by police working within the national forensic science laboratory in Pretoria.
Contained within the dossier is damning information on the alleged irregular decommissioning of a multi-million rand DNA database machine, the theft of R500-million worth of narcotics evidence, the apparent sabotaging of court cases and the concealing of information reflecting the true situation of the laboratory's caseload backlog.
The dossier was given to National Police Commissioner General Riah Phiyega nearly two months ago. According to Popcru, which is calling for an investigation, police management have done nothing about the allegations, while whistle-blowers have been victimised - with two being subjected to internal disciplinary hearings.
According to the National Prosecuting Authority (NPA) and gender violence NGOs, DNA databases are essential in the fight for justice. NPA spokesman Vuyisile Calaza said DNA was crucial in proving the guilt of an accused in a sexual offence.
People Opposed to Women Abuse (Powa) director Nhlanhla Mokwena said a database of DNA from perpetrators of rape would make seeking justice easier.
A report by the Medical Research Council and the Study of Violence - involving the tracking of rape cases through the criminal justice system - showed how DNA reports more often than not led to an acquittal than a conviction. The report said DNA reports were seldom available because kits were infrequently analysed and the suspects' blood rarely taken for comparison against any DNA identified by the laboratory.
Popcru's Gauteng provincial chairman Vusi Shabalala said they had spent months collecting information to compile the dossier, which contained information on the alleged irregular decommissioning of a R46-million DNA database machine - crucial parts of which were sold for scrap metal.
Police spokesman Brigadier Phuti Setati said the matter was receiving attention.
"Popcru is being engaged. We cannot discuss the contents until the matter has been addressed," he said.
Police ministry spokesman Zweli Mnisi said Minister Nathi Mthethwa had been briefed on the allegations.
Source: The Sowetan
A detailed dossier compiled by the Police and Prisons Civil Rights Union (Popcru) has blown open the lid on alleged criminal activities by police working within the national forensic science laboratory in Pretoria.
Contained within the dossier is damning information on the alleged irregular decommissioning of a multi-million rand DNA database machine, the theft of R500-million worth of narcotics evidence, the apparent sabotaging of court cases and the concealing of information reflecting the true situation of the laboratory's caseload backlog.
The dossier was given to National Police Commissioner General Riah Phiyega nearly two months ago. According to Popcru, which is calling for an investigation, police management have done nothing about the allegations, while whistle-blowers have been victimised - with two being subjected to internal disciplinary hearings.
According to the National Prosecuting Authority (NPA) and gender violence NGOs, DNA databases are essential in the fight for justice. NPA spokesman Vuyisile Calaza said DNA was crucial in proving the guilt of an accused in a sexual offence.
People Opposed to Women Abuse (Powa) director Nhlanhla Mokwena said a database of DNA from perpetrators of rape would make seeking justice easier.
A report by the Medical Research Council and the Study of Violence - involving the tracking of rape cases through the criminal justice system - showed how DNA reports more often than not led to an acquittal than a conviction. The report said DNA reports were seldom available because kits were infrequently analysed and the suspects' blood rarely taken for comparison against any DNA identified by the laboratory.
Popcru's Gauteng provincial chairman Vusi Shabalala said they had spent months collecting information to compile the dossier, which contained information on the alleged irregular decommissioning of a R46-million DNA database machine - crucial parts of which were sold for scrap metal.
Police spokesman Brigadier Phuti Setati said the matter was receiving attention.
"Popcru is being engaged. We cannot discuss the contents until the matter has been addressed," he said.
Police ministry spokesman Zweli Mnisi said Minister Nathi Mthethwa had been briefed on the allegations.
Source: The Sowetan
Thursday, September 6, 2012
South Africa: NPA still wrong in Lonmin matter
Despite the withdrawal of the charges on Sunday by South Africa’s National Prosecuting Authority (NPA) to charge 270 arrested mine workers for the killings of their colleagues, the initial decision to charge them in respect of the doctrine of common purpose is a perverse application of the law and that may have had the consequence of exacerbating tensions at Lonmin Mine in Marikana, North Western Province.
The tragic scenes of August 16, 2012, when police opened fire and killed 34 miners who were part of a group protesting against low wages, sent shockwaves throughout the world. Many reacted with horror at a display of police force that was reminiscent of apartheid South Africa.
Irrespective of what the Judicial Commission of Inquiry - established by President Zuma to investigate the killings and those responsible - may find once it conducts its investigation, there can be no doubt that the actions of the police can at best be described as extremely heavy handed.
While police may have overreacted, what happened in Marikana was a result of a Molotov cocktail of extremely angry miners (many of whom were armed with machetes and spears), a recalcitrant employer that seemed reluctant to negotiate to resolve the labour dispute, and an absent political and union leadership.
As a result of the killings and cognizant of the broader context in which the killings occurred, Human Rights Watch called on the South African government to ensure that the Commission is established speedily and for its terms of reference to include a fact-finding mission on the background and underlying events leading to the violence in Marikana.
It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.
The creation of the Judicial Commission of Inquiry and the appointment of retired Judge Farlam to head it, is therefore a welcome step. Farlam is a highly respected judge who served many years on the Supreme Court of Appeal. The Commission will have four months in which to conduct its investigation and to submit its final report a month thereafter.
However, the actions by the NPA to add the doctrine of common purpose to the initial charge of public violence could have undone all the good efforts to address the situation. According to the doctrine, where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design.
In other words, there was a common purpose to commit a crime. It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.
This nonsensical decision by the NPA to charge the miners in this manner may have led many to conclude that these charges were politically motivated and an attempt to prevent further protests.
The terms of reference of the Judicial Commission of Inquiry include an investigation of all the parties involved and mandate the Commission to refer any matter regarding the conduct of any person or group for prosecution. In addition, the South Africa’s Independent Police Investigative Directorate (IPID) has also initiated an investigation into the conduct of the police that led to the tragedy.
It is therefore very worrisome that there is very little complementarity between these investigations. As the Judicial Commission of Inquiry has been specifically established to conduct an independent and impartial investigation, it is more prudent for entities to work collaboratively with the Commission.
The decision by the NPA to charge the miners in terms of the doctrine of common purpose seems shortsighted for at least three reasons: Firstly, in the context of the establishment of the Judicial Commission of Inquiry, it should await the results and recommendations of the investigation before deciding the appropriate course of action.
Secondly, the requirement of active association upon which it seems to rely is a misapplication of the doctrine which could lead to the unintended consequence of limiting human rights in other contexts. Lastly, its decision could have exacerbated the already tense situation and set off another Molotov cocktail.
Cameron Jacobs is the South Africa Director at Human Rights Watch
Source: Human Rights Watch
The tragic scenes of August 16, 2012, when police opened fire and killed 34 miners who were part of a group protesting against low wages, sent shockwaves throughout the world. Many reacted with horror at a display of police force that was reminiscent of apartheid South Africa.
Irrespective of what the Judicial Commission of Inquiry - established by President Zuma to investigate the killings and those responsible - may find once it conducts its investigation, there can be no doubt that the actions of the police can at best be described as extremely heavy handed.
While police may have overreacted, what happened in Marikana was a result of a Molotov cocktail of extremely angry miners (many of whom were armed with machetes and spears), a recalcitrant employer that seemed reluctant to negotiate to resolve the labour dispute, and an absent political and union leadership.
As a result of the killings and cognizant of the broader context in which the killings occurred, Human Rights Watch called on the South African government to ensure that the Commission is established speedily and for its terms of reference to include a fact-finding mission on the background and underlying events leading to the violence in Marikana.
It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.
The creation of the Judicial Commission of Inquiry and the appointment of retired Judge Farlam to head it, is therefore a welcome step. Farlam is a highly respected judge who served many years on the Supreme Court of Appeal. The Commission will have four months in which to conduct its investigation and to submit its final report a month thereafter.
However, the actions by the NPA to add the doctrine of common purpose to the initial charge of public violence could have undone all the good efforts to address the situation. According to the doctrine, where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design.
In other words, there was a common purpose to commit a crime. It is a perversion of the doctrine to suggest that whatever common crime it is alleged the miners were pursuing, that the killing of their colleagues by the police was a foreseeable outcome on their part of achieving that goal.
This nonsensical decision by the NPA to charge the miners in this manner may have led many to conclude that these charges were politically motivated and an attempt to prevent further protests.
The terms of reference of the Judicial Commission of Inquiry include an investigation of all the parties involved and mandate the Commission to refer any matter regarding the conduct of any person or group for prosecution. In addition, the South Africa’s Independent Police Investigative Directorate (IPID) has also initiated an investigation into the conduct of the police that led to the tragedy.
It is therefore very worrisome that there is very little complementarity between these investigations. As the Judicial Commission of Inquiry has been specifically established to conduct an independent and impartial investigation, it is more prudent for entities to work collaboratively with the Commission.
The decision by the NPA to charge the miners in terms of the doctrine of common purpose seems shortsighted for at least three reasons: Firstly, in the context of the establishment of the Judicial Commission of Inquiry, it should await the results and recommendations of the investigation before deciding the appropriate course of action.
Secondly, the requirement of active association upon which it seems to rely is a misapplication of the doctrine which could lead to the unintended consequence of limiting human rights in other contexts. Lastly, its decision could have exacerbated the already tense situation and set off another Molotov cocktail.
Cameron Jacobs is the South Africa Director at Human Rights Watch
Source: Human Rights Watch
Monday, September 3, 2012
Marikana murder charge withdrawal: the first glimmer of sanity
The NPA seems to have regained a small sprinkling of sanity – it looks like the charges of murder against 270 protesting Lonmin miners will be withdrawn. Yet a number of so-called experts and scholars are still claiming, although feebly, that the charge could have held water. Let’s not kid ourselves – the law is perfectly clear.
The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.
Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.
According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.
Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?
The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:
Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:
This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.
For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.
That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.
In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the
How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.
But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.
To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.
Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.
The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.
But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.
Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.
In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.
We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.
It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law.
Source: Constitutionally Speaking
The decision by the National Prosecuting Authority (NPA) preliminary to withdraw charges of murder against 270 Marikana miners for the killing of 34 of their colleagues by the police was the only remotely rational course of action to take. It is probably too late to save the NPA from becoming the laughing stock of most South Africans and people across the rest of the world, but the decision seems like a glimmer of rationality in a sea of madness.
Yet it is more than surprising that the NPA is maintaining its original decision to charge the miners was legally sound. It’s like a child denying that he ate his mother’s chocolate cake when he has chocolate icing smeared all over his face. Even more surprising is that a legal academic from Wits has argued that, theoretically at least, the miners could be convicted of murder under the common purpose doctrine.
According to these defenders of the NPA, the decision was legally sound because the state would only have to prove that the miners were present at the scene of the killing and aware of an attack on the police; that the miners intended to associate with those attacking the police and had manifested their sharing of the common purpose by some act; and lastly that the miners had the intent, in the form of dolus eventualis, by showing the miners foresaw the (reasonable) possibility that someone may be killed by the actions of those in the crowd who provoked the police to shoot and kill some of them.
Could these views have been animated by a blinding animosity towards the miners; or by a fear of the protesting (black) hordes; or by an unexamined belief that the miners deserved to be punished collectively because one or more persons who took part in the strike had allegedly killed two police officers? Or have those who made this decision to prosecute or defended it – even if only on theoretical grounds – not studied the relevant legal materials properly?
The leading Criminal Law textbooks (quoted approvingly by the Constitutional Court in its judgment on the common purpose doctrine) illustrate that the doctrine is used to impute the criminal conduct of some members of a group to the whole group who had the common purpose to commit a crime. Burchell and Milton define the doctrine as follows:
Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. Liability arises from their ‘common purpose’ to commit the crime.
Similarly, the other Criminal Law guru, Snyman, points out in his textbook that:
the essence of the doctrine is that if two or more people, having a common purpose to commit a crime, act together in order to achieve that purpose, the conduct of each of them in the execution of that purpose is imputed to the others.
This means that the 270 miners could only be convicted of murder if the conduct of one of its members could be shown to have caused the death of the 34 miners and if all the other requirements for common purpose had been met. Given the fact that the police actually shot the 34 miners, it is unclear how the conduct of any of the miners could have cause the death of their comrades.
For a successful prosecution, the state would have to prove that the miners made common purpose with the police with the intention to have their fellow workers killed. It is only where the miners can be shown to have had a common purpose with the police that the conduct of the police (who actually killed the miners) could be imputed to them. As none of the miners actually killed anyone on the day of the massacre, it would help little to prove they had a common purpose to protest or even to attack the police, because none of them were involved in the killing of the 34 miners.
That is why the Constitutional Court confirmed in the Thebus case that a group of people who are not co-perpetrators could only be found guilty of a crime with assistance of the common purpose doctrine if they were aware the crime was being committed and must have intended to make common cause with those who were actually perpetrating the crime. The crime in this case being the killing of 34 miners by the police, it would be impossible to prove that the miners made common purpose with the police to kill their fellow miners.
In any case, even if this was not so, and even if the state only had to prove that the miners acted with a common purpose with one another by walking in a group towards the police and that this led to the shooting that killed 34 of their comrades, the state would never have been able to prove the involvement of the 270 miners in this common purpose. As the Constitutional Court warned, it is the
duty of every trial court, when applying the doctrine of common purpose, to exercise the utmost circumspection in evaluating the evidence against each accused person. A collective approach to determining the actual conduct or active association of an individual accused has many evidentiary pitfalls. The trial court must seek to determine, in respect of each accused person, the location, timing, sequence, duration, frequency and nature of the conduct alleged to constitute sufficient participation or active association and its relationship, if any, to the criminal result and to all other pre-requisites of guilt. Whether or not active association has been appropriately established will depend upon the factual context of each case.
How would the state ever prove that the 270 actively associated with the one person in the crowd who allegedly shot at the police? Merely being proven to have been in the crowd might have been sufficient to be convicted of murder by one of the members of the crowd during the Apartheid years, but those days are long gone. The Constitutional Court decision makes this abundantly clear. More is required now, and the state would never have been able to meet this more stringent evidentiary burden.
But apart from the evidentiary problems, there is still the problem that none of the miners had actually set out to kill their comrades. Neither had any of the miners killed any of their comrades. The police did that.
To overcome this problem, those who argue that the decision to charge the miners with murder was legally plausible say that all the miners could be guilty of murder if one of them had shot at the police because the person who shot at the police could be found guilty of murder and his guilt could be ascribed to all of them via the common purpose doctrine. But this argument conflates the requirements for common purpose with the requirements for intention.
Those who defend the NPA (as well as the NPA itself) wrongly invoke the 1981 judgment of the Appellate Division in S v Nhlapo and Another, where a guard was shot and killed – possibly by a fellow guard – in a gun battle with robbers. The court stated that the robbers – who were ready to use their guns to overpower the guards – must have reasonably foreseen that someone could get killed in the robbery and therefore possessed the necessary intention for murder (in the form of dolus eventualis). The court therefore convicted the robbers of the murder of the guard – even though the state had not proven that any of them shot the guard.
The problem is that this scenario is entirely different from what the police claimed happened at Marikana. The Nhlapo case did not deal with the common purpose doctrine because all the robbers were co-perpetrators: they all had guns, were prepared to use them, and then reasonably foresaw that someone would be killed. The actions of one robber were not imputed to other robbers via the common purpose doctrine: they were all charged because they had taken part in the shootout. Their actions caused the death of the guard and they reasonably foresaw that it could.
But the actions of all 270 miners did not cause the death of the 34 victims. At most, the actions of one miner who shot at the police could arguably be said to have caused the death of others. To hold otherwise would be to criminalise the behaviour of every member of a crowd of protestors, where the behaviour of one of the protestors might have contributed to the death of someone and where that protestor had reasonably foreseen the possibility that his actions would lead to the death. It would, in effect, abolish most of the requirements for criminal liability for anyone taking part in a protest march and would be so invasive not only of the right to protest freely but also of the right to be presumed innocent until proven guilty, that it would undermine the very essence of our Bill of Rights.
Unlike those robbers, all of the 270 miners were not armed with guns. They had not all taken part in a shooting match with the police. They were not co-perpetrators going out to overpower the police. Arguably, one of those in their midst had a gun and shot at the police. They could therefore not have been guilty of murder because they had no intention to kill their comrades. To hold otherwise would be to use the common purpose doctrine in a situation for which it has not been designed and for which has not (and never will be) approved by our courts.
In any case, even if this was not so, no court in South Africa is ever going to find that the miners should reasonably have foreseen the possibility that the police would start shooting at them with live ammunition and would kill 34 of their comrades because one among them had a firearm.
We live in a democracy. We have a right to expect the police to obey the law and use minimum force, as they are required to do by the Police Act. We cannot and should not ever accept that it is reasonable to foresee that the police would use maximum force and would shoot and kill 34 protestors because one of them happened to have been armed with a gun. For a court to hold otherwise would be for it to hold that it is reasonable for the police at best to be untrained, bumbling, and bizarrely incompetent or, at worst, to be malicious, vengeful, law-breaking thugs.
It is a pity that some in the NPA seem to have forgotten (or might never have noticed) that we indeed live in a democracy now, and that we can reasonably expect the police to obey the law.
Source: Constitutionally Speaking
Sunday, September 2, 2012
NPA won't divulge report on decision to drop Nkonyeni charges - DA KZN
ACTING KZN Prosecutions Director Moipone Noko has officially refused to release the report on why the National Prosecuting Authority (NPA) dropped fraud and corruption charges against two high-profile KZN politicians.
Advocate Noko wrote to the DA late Wednesday stating that the reasons for not charging KZN Speaker Peggy Nkonyeni and provincial Finance MEC Mike Mabuyakhulu are "confidential" and cannot be released. The DA will today officially submit a Promotion of Access to Information Act (PAIA) request to the NPA to get this information. We believe that the NPA must make the record of decision public as it is in the public's interest to know whether the criminal justice system is free from political bias.
This is important given the massive network of politicians and officials in multiple provinces who are linked to dealings with controversial businessman Gaston Savoi. The DA has previously won a Supreme Court of Appeal case against the NPA for the release of the report on why corruption charges against President Zuma were dropped.
We believe that the precedent set by this decision should also apply to the KZN NPA's report on the so-called "Amigo's" case.
Source: Politicsweb
Advocate Noko wrote to the DA late Wednesday stating that the reasons for not charging KZN Speaker Peggy Nkonyeni and provincial Finance MEC Mike Mabuyakhulu are "confidential" and cannot be released. The DA will today officially submit a Promotion of Access to Information Act (PAIA) request to the NPA to get this information. We believe that the NPA must make the record of decision public as it is in the public's interest to know whether the criminal justice system is free from political bias.
This is important given the massive network of politicians and officials in multiple provinces who are linked to dealings with controversial businessman Gaston Savoi. The DA has previously won a Supreme Court of Appeal case against the NPA for the release of the report on why corruption charges against President Zuma were dropped.
We believe that the precedent set by this decision should also apply to the KZN NPA's report on the so-called "Amigo's" case.
Source: Politicsweb
Friday, August 24, 2012
Politicking among police
Concerns over the politicisation of the criminal justice system were first raised over the Mbeki administration's investigation of Jacob Zuma.
Now, under a Zuma presidency, concern has congealed into dread as his appointments to the prosecution service have injected political poison into the state's most sensitive independent organs.
First came the appointment of the hopelessly compromised Menzi Simelane as national director of public prosecutions. Then came Willem Heath's return to the Special Investigating Unit. His political agenda was so transparent he blurted it out in the media and had to go.
Next was Lawrence Mrwebi, chosen to head the Specialised Commercial Crime unit. Mrwebi is a fallible man who had been deeply embroiled in efforts to shut down the Scorpions.
In December last year, when Simelane was beginning to test his leash, the Supreme Court of Appeal declared his appointment invalid, allowing Zuma to appoint a stand-in candidate arguably as deeply partial as Heath: Nomgcobo Jiba.
In 2007 Jiba was suspended for her role in trying to procure the arrest of then-Gauteng Scorpions boss Gerrie Nel. Richard Mdluli came to her defence, alleging she had been assisting police with an intelligence-driven investigation of the Scorpions. The justice minister weighed in to query her case and after Zuma took power she was reinstated.
Intelligence
Since December last year, Jiba and Mrwebi have acted like a tag team to take on politically sensitive cases. In the Mdluli case, Mrwebi ordered the withdrawal of fraud charges, relying, in part, on undisclosed "intelligence".
Jiba followed that punch with the suspension of prosecutor Glynnis Breytenbach, who wanted to pursue charges against Mdluli and was central to a politically sensitive investigation of alleged fraud in the acquisition of mining rights at Sishen. Next came the withdrawal of charges against Zuma backers and KwaZulu-Natal MECs Mike Mabuyakhulu and Peggy Nkonyeni in the "amigos" corruption case.
Today we report on further damaging allegations of Mrwebi's meddling in a case whose implications are as yet obscure. All we know is the man Mrwebi allegedly tried to protect is someone whose business it was to know the dirty secrets of the National Prosecuting Authority's provincial office.
The poison is now at the heart of the system.
Source: Mail & Guardian
Now, under a Zuma presidency, concern has congealed into dread as his appointments to the prosecution service have injected political poison into the state's most sensitive independent organs.
First came the appointment of the hopelessly compromised Menzi Simelane as national director of public prosecutions. Then came Willem Heath's return to the Special Investigating Unit. His political agenda was so transparent he blurted it out in the media and had to go.
Next was Lawrence Mrwebi, chosen to head the Specialised Commercial Crime unit. Mrwebi is a fallible man who had been deeply embroiled in efforts to shut down the Scorpions.
In December last year, when Simelane was beginning to test his leash, the Supreme Court of Appeal declared his appointment invalid, allowing Zuma to appoint a stand-in candidate arguably as deeply partial as Heath: Nomgcobo Jiba.
In 2007 Jiba was suspended for her role in trying to procure the arrest of then-Gauteng Scorpions boss Gerrie Nel. Richard Mdluli came to her defence, alleging she had been assisting police with an intelligence-driven investigation of the Scorpions. The justice minister weighed in to query her case and after Zuma took power she was reinstated.
Intelligence
Since December last year, Jiba and Mrwebi have acted like a tag team to take on politically sensitive cases. In the Mdluli case, Mrwebi ordered the withdrawal of fraud charges, relying, in part, on undisclosed "intelligence".
Jiba followed that punch with the suspension of prosecutor Glynnis Breytenbach, who wanted to pursue charges against Mdluli and was central to a politically sensitive investigation of alleged fraud in the acquisition of mining rights at Sishen. Next came the withdrawal of charges against Zuma backers and KwaZulu-Natal MECs Mike Mabuyakhulu and Peggy Nkonyeni in the "amigos" corruption case.
Today we report on further damaging allegations of Mrwebi's meddling in a case whose implications are as yet obscure. All we know is the man Mrwebi allegedly tried to protect is someone whose business it was to know the dirty secrets of the National Prosecuting Authority's provincial office.
The poison is now at the heart of the system.
Source: Mail & Guardian
Lawrence Mrwebi accused of interfering in staff fraud probe
Controversial National Prosecuting Authority strongman Lawrence Mrwebi is at the centre of new claims of trying to interfere with an investigation. Mrwebi, appointed late last year to head the NPA’s Specialised Commercial Crime unit, has accumulated a number of controversial interventions in politically charged cases. They include his instruction to withdraw charges against suspended crime intelligence supremo Richard Mdluli and his review of charges against KwaZulu-Natal provincial heavyweights Mike Mabuyakhulu and Peggy Nkonyeni.
But the latest allegation is so serious that it is said to have been brought to the attention of the Hawks, although this could not be confirmed. And it is also much closer to home, involving current and former members of the NPA staff in corruption allegations that seem to have been kept buried for years.
The background
The case goes back to 2006 when the NPA advertised a tender for security at various NPA buildings around the country for an amount of R13-million. In a process that formed the basis of criminal charges against five men, the tender was awarded to an unknown KwaZulu-Natal security company, Intense Protection and Tourist Services, owned by KwaZulu-Natal businessperson Muziwandile Nala. By this time, the cost had increased to R19-million.
According to a summary of the evidence in the case, a key player in setting up the tender was the then acting head of the KwaZulu-Natal security and risk management unit of the NPA, Terence Joubert. Prior to the issuing of the tender, key members of its national security and risk management team travelled to Durban on official business.
The ‘coloured’ group
The group included its head, Walter “Wally” Rhoode, and the man who was later to serve as the chair of the bid evaluation committee, John Maree. Joubert, Rhoode and Maree formed part of what was later termed a “coloured” group that dominated the NPA’s security structures. During that visit, Joubert brought Nala after hours to the hotel in order to introduce him to the NPA delegation. Nala was later encouraged to bid for the tender and approached his former mentor, prominent Durban VIP protection specialist Andre van der Byl, to submit a joint bid because Nala had no capacity to meet the bid requirements.
According to the evidence summary, Nala approached Van der Byl with the claim that “through Terence Joubert … and other coloureds based at head office” he was “guaranteed” to win the tender.
The ‘scam’
The summary records that in the open tender no company met the minimum 60% score. Rhoode and the NPA’s head of supply chain management, Tebogo Sethabela, then recommended a closed tender through a request for bids from companies that had scored 40% or more. Inexplicably, Intense Protection was invited to bid again, although, according to the investigation, it had scored only 27% in the first round.
The instruction to invite Intense Protection was issued by both Maree and Sethabela, although they both allegedly knew the company did not qualify. It is alleged that Nala, Joubert and Van der Byl, who is a state witness, travelled to Pretoria for a briefing and that Nala handed over an envelope believed to contain R20 000 to Rhoode. Nala is alleged also to have gratified others in the syndicate, including Joubert, Maree and Sethabela.
The closed tender, under the chairmanship of Maree, disqualified the other two bidders and awarded the contract to Intense Protection. Van der Byl pulled out of the deal.
Joubert
Joubert occupies a highly sensitive position in the NPA’s Durban office and has wide internal access to information and involvement in internal investigations of NPA staff. It was this role that appears to have blown the lid on the alleged tender scam. Colleagues suspected that Joubert was being used by organised crime targets to disrupt their investigations by laying complaints against them, which Joubert would then investigate because of his risk management mandate.
It appears the NPA head office was, in turn, tipped off about an infraction by Joubert, who allegedly used a state vehicle for private travel to the Eastern Cape. The probe, by the Scorpions’s special national projects unit, was completed in August 2007 and is understood to have revealed the relationship between Nala and Joubert. Allegations and evidence against Joubert were handed to the NPA’s integrity management unit, led by Prince Mokotedi.
There the matter appears to have lain dormant until 2009 when, in May of that year, the Sowetan was tipped off about the Intense Protection contract. Following inquiries, the NPA announced that the matter had been referred to the police for investigation. Although no names of suspects were released, Rhoode, who had left the NPA to take over as head of security for the Fifa World Cup, unexpectedly resigned his position three months later.
Mokotedi
Mokotedi has since emerged as a key ally of Mrwebi and the acting national director of public prosecutions, Nomgcobo Jiba. Together with Jiba, he assisted Mdluli with the investigation into Gauteng Scorpions boss Gerrie Nel, which led to Nel’s arrest just ahead of the charging of former police commissioner Jackie Selebi.
Jiba faced disciplinary charges because of her actions and both Mdluli and Mokotedi gave statements in her defence. Both Mokotedi and Mrwebi gave evidence for the defence in the Selebi trial.
Enter the Hawks
According to evidence by the prosecutor in court, police began seriously probing the Intense Protection case only in late 2011 when it was taken over by the Hawks. In early December 2011, Hawks investigator Colonel Frans Kola arrested Nala, Joubert, Maree, Rhoode and Sethabela for tender fraud. They were all released on bail and have indicated they believe the state does not have a case against them.
However, during Kola’s investigation, the police conducted a search and seizure operation on Joubert. It was at this stage that Mrwebi allegedly intervened.
Enter Mrwebi
According to an account provided to the Mail & Guardian, Mrwebi “stormed in” to the office of the prosecutor overseeing the case, advocate Nathi Mncube, and allegedly instructed him to halt the execution of the search warrant.
Mncube asked to know the basis of this instruction because, at the time, he did not report to Mrwebi.
Mrwebi, who knows Joubert well from his time as head of the Scorpions in KwaZulu-Natal, could not provide a satisfactory justification and Mncube refused his demand.
It is alleged that Mrwebi thereupon telephoned a police officer involved in the search and attempted to instruct him to call off the search. The officer also refused.
Mrwebi also instructed Mncube to hand over the investigation docket. Mncube refused.
Following Jiba’s appointment to act as national director of public prosecutions in the place of Menzi Simelane at the end of December 2011, she called for a briefing on cases that had been overseen by Simelane, which included the Intense Protection matter.
Mncube was reluctant to brief Jiba in the presence of Mrwebi because of his previous interference, but she insisted.
Following the briefing, she confirmed that he must report to Mrwebi on this matter.
NPA response
The NPA declined to deal with the allegations of interference.
NPA spokesperson Bulelwa Makeke said in an email response: “As a matter of principle, we will not be drawn into responding to gossip-mongering and clandestine media leaks by faceless internal sources. Doing so will be legitimising clearly unethical behaviour by employees with anti-establishment agendas.”
On May 28, Mncube was provisionally forced to withdraw charges when the magistrate in the Pretoria Regional Court refused to grant another postponement for further investigation.
Mncube complained that part of the delay was owing to the investigator, Kola, having been removed from the case and the fact, since March, that two new officers had to be briefed.
The NPA said: “The investigations are on track and advocate Mncube will re-enrol the case as soon as the outstanding elements of the investigation are completed.”
Source: Mail & Guardian
But the latest allegation is so serious that it is said to have been brought to the attention of the Hawks, although this could not be confirmed. And it is also much closer to home, involving current and former members of the NPA staff in corruption allegations that seem to have been kept buried for years.
The background
The case goes back to 2006 when the NPA advertised a tender for security at various NPA buildings around the country for an amount of R13-million. In a process that formed the basis of criminal charges against five men, the tender was awarded to an unknown KwaZulu-Natal security company, Intense Protection and Tourist Services, owned by KwaZulu-Natal businessperson Muziwandile Nala. By this time, the cost had increased to R19-million.
According to a summary of the evidence in the case, a key player in setting up the tender was the then acting head of the KwaZulu-Natal security and risk management unit of the NPA, Terence Joubert. Prior to the issuing of the tender, key members of its national security and risk management team travelled to Durban on official business.
The ‘coloured’ group
The group included its head, Walter “Wally” Rhoode, and the man who was later to serve as the chair of the bid evaluation committee, John Maree. Joubert, Rhoode and Maree formed part of what was later termed a “coloured” group that dominated the NPA’s security structures. During that visit, Joubert brought Nala after hours to the hotel in order to introduce him to the NPA delegation. Nala was later encouraged to bid for the tender and approached his former mentor, prominent Durban VIP protection specialist Andre van der Byl, to submit a joint bid because Nala had no capacity to meet the bid requirements.
According to the evidence summary, Nala approached Van der Byl with the claim that “through Terence Joubert … and other coloureds based at head office” he was “guaranteed” to win the tender.
The ‘scam’
The summary records that in the open tender no company met the minimum 60% score. Rhoode and the NPA’s head of supply chain management, Tebogo Sethabela, then recommended a closed tender through a request for bids from companies that had scored 40% or more. Inexplicably, Intense Protection was invited to bid again, although, according to the investigation, it had scored only 27% in the first round.
The instruction to invite Intense Protection was issued by both Maree and Sethabela, although they both allegedly knew the company did not qualify. It is alleged that Nala, Joubert and Van der Byl, who is a state witness, travelled to Pretoria for a briefing and that Nala handed over an envelope believed to contain R20 000 to Rhoode. Nala is alleged also to have gratified others in the syndicate, including Joubert, Maree and Sethabela.
The closed tender, under the chairmanship of Maree, disqualified the other two bidders and awarded the contract to Intense Protection. Van der Byl pulled out of the deal.
Joubert
Joubert occupies a highly sensitive position in the NPA’s Durban office and has wide internal access to information and involvement in internal investigations of NPA staff. It was this role that appears to have blown the lid on the alleged tender scam. Colleagues suspected that Joubert was being used by organised crime targets to disrupt their investigations by laying complaints against them, which Joubert would then investigate because of his risk management mandate.
It appears the NPA head office was, in turn, tipped off about an infraction by Joubert, who allegedly used a state vehicle for private travel to the Eastern Cape. The probe, by the Scorpions’s special national projects unit, was completed in August 2007 and is understood to have revealed the relationship between Nala and Joubert. Allegations and evidence against Joubert were handed to the NPA’s integrity management unit, led by Prince Mokotedi.
There the matter appears to have lain dormant until 2009 when, in May of that year, the Sowetan was tipped off about the Intense Protection contract. Following inquiries, the NPA announced that the matter had been referred to the police for investigation. Although no names of suspects were released, Rhoode, who had left the NPA to take over as head of security for the Fifa World Cup, unexpectedly resigned his position three months later.
Mokotedi
Mokotedi has since emerged as a key ally of Mrwebi and the acting national director of public prosecutions, Nomgcobo Jiba. Together with Jiba, he assisted Mdluli with the investigation into Gauteng Scorpions boss Gerrie Nel, which led to Nel’s arrest just ahead of the charging of former police commissioner Jackie Selebi.
Jiba faced disciplinary charges because of her actions and both Mdluli and Mokotedi gave statements in her defence. Both Mokotedi and Mrwebi gave evidence for the defence in the Selebi trial.
Enter the Hawks
According to evidence by the prosecutor in court, police began seriously probing the Intense Protection case only in late 2011 when it was taken over by the Hawks. In early December 2011, Hawks investigator Colonel Frans Kola arrested Nala, Joubert, Maree, Rhoode and Sethabela for tender fraud. They were all released on bail and have indicated they believe the state does not have a case against them.
However, during Kola’s investigation, the police conducted a search and seizure operation on Joubert. It was at this stage that Mrwebi allegedly intervened.
Enter Mrwebi
According to an account provided to the Mail & Guardian, Mrwebi “stormed in” to the office of the prosecutor overseeing the case, advocate Nathi Mncube, and allegedly instructed him to halt the execution of the search warrant.
Mncube asked to know the basis of this instruction because, at the time, he did not report to Mrwebi.
Mrwebi, who knows Joubert well from his time as head of the Scorpions in KwaZulu-Natal, could not provide a satisfactory justification and Mncube refused his demand.
It is alleged that Mrwebi thereupon telephoned a police officer involved in the search and attempted to instruct him to call off the search. The officer also refused.
Mrwebi also instructed Mncube to hand over the investigation docket. Mncube refused.
Following Jiba’s appointment to act as national director of public prosecutions in the place of Menzi Simelane at the end of December 2011, she called for a briefing on cases that had been overseen by Simelane, which included the Intense Protection matter.
Mncube was reluctant to brief Jiba in the presence of Mrwebi because of his previous interference, but she insisted.
Following the briefing, she confirmed that he must report to Mrwebi on this matter.
NPA response
The NPA declined to deal with the allegations of interference.
NPA spokesperson Bulelwa Makeke said in an email response: “As a matter of principle, we will not be drawn into responding to gossip-mongering and clandestine media leaks by faceless internal sources. Doing so will be legitimising clearly unethical behaviour by employees with anti-establishment agendas.”
On May 28, Mncube was provisionally forced to withdraw charges when the magistrate in the Pretoria Regional Court refused to grant another postponement for further investigation.
Mncube complained that part of the delay was owing to the investigator, Kola, having been removed from the case and the fact, since March, that two new officers had to be briefed.
The NPA said: “The investigations are on track and advocate Mncube will re-enrol the case as soon as the outstanding elements of the investigation are completed.”
Source: Mail & Guardian
Friday, August 17, 2012
Charges against officials withdrawn
Charges of fraud and corruption against six people, including two high-ranking ANC KwaZulu-Natal officials, have been withdrawn, the National Prosecuting Authority (NPA) said on Friday. “The acting Director of Public Prosecutions advocate Moipone Noko has withdrawn charges against six accused in the Intaka case,” provincial NPA spokeswoman Natasha Ramkisson said.
Charges were dropped against KwaZulu-Natal legislature speaker Peggy Nkonyeni, economic development MEC Mike Mabuyakhulu, Lindelihle Mkhwanazi, Nozibele Phindela, Jabulani Thusi and Ian Blose.
“Upon a thorough and interrogative assessment, available evidence including consultations with some key witnesses, the acting DPP in consultation with the prosecution team felt there are no prospects of a successful prosecution, therefore these charges can not be sustained against them during trial,” Ramkisson said.
The six were linked to the sale of water purification plants to the KwaZulu-Natal health department, allegedly at inflated prices. Initially, 25 people were implicated in the in the so-called “amigos” corruption case which will be heard on October 1 in the Durban High Court. The “amigos case” is a corruption matter involving Uruguayan businessman Gaston Savoi.
Savoi's company Intaka allegedly paid bribes to ensure that a contract to supply water purifiers and oxygen generators to hospitals, at hugely inflated prices, went its way.
He would go on trial with former provincial treasury boss Sipho Shabalala, who allegedly received a R1 million donation for the ANC.
Noko was appointed in July after KwaZulu-Natal's acting head of prosecutions Simphiwe Mlotshwa was ousted, reportedly for refusing to withdraw the charges against the two politicians.
Source: IoL
Charges were dropped against KwaZulu-Natal legislature speaker Peggy Nkonyeni, economic development MEC Mike Mabuyakhulu, Lindelihle Mkhwanazi, Nozibele Phindela, Jabulani Thusi and Ian Blose.
“Upon a thorough and interrogative assessment, available evidence including consultations with some key witnesses, the acting DPP in consultation with the prosecution team felt there are no prospects of a successful prosecution, therefore these charges can not be sustained against them during trial,” Ramkisson said.
The six were linked to the sale of water purification plants to the KwaZulu-Natal health department, allegedly at inflated prices. Initially, 25 people were implicated in the in the so-called “amigos” corruption case which will be heard on October 1 in the Durban High Court. The “amigos case” is a corruption matter involving Uruguayan businessman Gaston Savoi.
Savoi's company Intaka allegedly paid bribes to ensure that a contract to supply water purifiers and oxygen generators to hospitals, at hugely inflated prices, went its way.
He would go on trial with former provincial treasury boss Sipho Shabalala, who allegedly received a R1 million donation for the ANC.
Noko was appointed in July after KwaZulu-Natal's acting head of prosecutions Simphiwe Mlotshwa was ousted, reportedly for refusing to withdraw the charges against the two politicians.
Source: IoL
Monday, July 23, 2012
PAUL HOFFMAN: Good chance of success for DA review of Zuma decision
The corridor chatter in places legal is that the DA’s review of the NPA’s decision not to proceed with the prosecution of President Jacob Zuma should be successful.
THE "good guys" in the National Prosecuting Authority (NPA), and there are many of them, must be kicking themselves today because they did not charge Jacob Zuma and Schabir Shaik together in the same case. The latter was sentenced to 15 years for corrupting the former, who is now the president of SA. The benefit of hindsight, that 20/20 vision it invariably imparts, is not always so beneficial, as the contrasting fates of Zuma and Shaik show.
In the latest twist in the saga of the cases of these two senior African National Congress (ANC) members, the Democratic Alliance (DA), which launched a review of the NPA’s decision not to proceed with the prosecution of Zuma in 2009, has instructed its attorneys to institute contempt of court proceedings against the NPA. This unique step has been taken because it has failed to comply with the March 20 order of the Supreme Court of Appeal that it deliver, within 14 days, the record of all the documents, recordings, materials and evidence that were before it when it considered, and made, the fateful decision not to proceed with the 783 charges of corruption Zuma was facing in the run-up to the last general election in May 2009.
It needs to be borne in mind that when the acting national director of public prosecutions, Mokotedi Mpshe, announced the decision, he made it clear that the NPA was convinced it had a good case on the merits of the charges against Zuma.
In other words, the NPA was bullish about its prospects of proving beyond any reasonable doubt that Zuma was corrupt.
The reason proffered for withdrawing the charges was that political interference in the process had so tainted the case that it would not be possible to give Zuma a fair trial.
Unfortunately, the evidence upon which this conclusion was based is far from relevant or convincing. The controversial conversation between former colleagues Bulelani Ngcuka and Leonard M cCarthy, neither of whom had any say in the matter of the pressing and timing of charges, is best characterised as idle and irrelevant gossiping, not as a train smash for the proper administration of criminal justice.
The person who made the decisions, Mpshe himself, was not aware of the content of the clandestinely taped conversation at any material time, so how it could have influenced or interfered with his decision-making processes remains a mystery and gives the DA good grounds for taking him on review, as it has done.
The small matter of how the tape recording relied upon by Mpshe came to be in the possession of the attorney acting for then private citizen Zuma, when there is no legal way in which this can happen, is also a matter that will cast doubt upon the propriety of the decision to withdraw the charges that Zuma was facing. And then, to complete the potted prehistory of the current issue, there is the embarrassing detail that the Hong Kong legal precedent that the NPA dug up to justify its otherwise mystifying decision was overturned on appeal before Mpshe relied on it. In short, the DA’s review has good prospects of success, if its merits can ever be reached by overcoming the delaying and point-taking tactics of the respondents in the matter.
If this occurs before Mangaung hosts the ANC’s elective national conference in December, then the cat will truly be among the pigeons. Whether the DA would prefer a second Zuma presidential term or not, the old legal axiom applies: justice delayed is justice denied. Retired chief justice Pius Langa had occasion to admonish Zuma’s legal team to desist from endless preliminary technical point-taking in earlier litigation; but the habit of the Stalingrad strategy seems to die hard.
In the DA’s press release announcing the decision to deal with the NPA’s disregard for the court order, certainly a lamentable state of affairs, a few rhetorical questions are raised in an attempt to breathe outrage into the wholly predictable. Usually, rhetorical questions have obvious answers, but this is not necessarily so in this instance. Seriatim:
"Is the failure to produce the record an indication that there is no record to produce?" This is hardly likely. The phalanx of exhausted and miserable-looking senior staff who flanked Mpshe as he made the announcement on national TV could not have been doing sweet nothing in the process of compiling the announcement. The fact that the announcement itself included mention of the strength of the merits of the case, in the view of the NPA, is an indication that there were conflicting views behind the looks of disappointed disbelief on the faces in the background. It is likely that a flurry of memorandums and e-mails preceded the announcement. Finding the Hong Kong case took effort. The NPA’s problem today is that these documents most likely point up the flaws in the decision made, hence the tardiness, possibly aimed at kicking the case into touch until the post-Mangaung period.
"Is it possible that there was no rational basis on which this crucial decision was taken?" Here the DA is closer to the mark. The taped conversation upon which the decision hinged seems to be legally irrelevant and practically of no real consequence. Its provenance is highly questionable; courts do not have regard to illegally acquired evidence and neither should the NPA.
"Was the decision taken on political grounds?" This is hyperbole. The grounds for the decision were announced at the time, they were couched in legal, not political, terms and the decision has to stand or fall on the cogency of the legal reasons given, irrespective of the background hum from highly placed cadres of the ANC, both within and outside the NPA, who were all undoubtedly putting political pressure on the hapless and vulnerable Mpshe.
"Is the NPA party to placing someone above the law just because he holds high political office?" It is not clear whether this last DA question refers to the alleged contempt of court now, or the original decision back in 2009. Section nine of the bill of rights guarantees equality before the law to all. The NPA is bound to respect and protect this. It is also supposed to act independently and "without fear, favour or prejudice".
Zuma was a private citizen when the prosecution was stopped. He was also leader of the ANC, a party that is openly and unashamedly striving for hegemonic control of all the levers of power in society. Zuma deployed Menzi Simelane (not Mpshe, who went after Jackie Selebi despite political interference in that, ultimately successful, prosecution process) as his new national director of public prosecutions. At the time, this was described as an "insurance policy" against the risk of the DA succeeding in the review, the completion of which is now being thwarted by foot-dragging and obfuscation. As the whole game plan of the ANC is to put party above state, or at least so commingle them as to render the two indistinguishable, the answer must unfortunately be a disgraceful "yes" on the aspects back then of the ambiguous question, as well as those now.
As the courts have sent Simelane packing by resoundingly upholding the rule of law, the corridor chatter in places legal is that the DA’s review should be successful. This involves the reinstatement of the 783 corruption charges. Should this happen, it remains to be seen whether Zuma will follow Humphrey Mmemezi, a former Gauteng MEC and art lover, into resignation in accordance with the new guidelines for comrades under a corruption cloud.
• Hoffman SC is with the Institute for Accountability in Southern Africa
Source: Business Day
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
Monday, July 9, 2012
When will the political interference stop?
After President John F Kennedy was assassinated, Malcolm X famously said that the assassination was a case of the “chickens coming home to roost,” adding that “chickens coming home to roost never did make me sad; they’ve always made me glad.” In other words, he was implying that since the white man had used violence so often and so easily in America (especially against black Americans), it was just cosmic balance that the President would become a victim of violence.
Well, the chickens are coming home to roost big time with regard to the on-going political manipulation and abuse of the National Prosecuting Authority (NPA) by various political factions within the ANC. When a perception takes hold that the NPA will prosecute some and avoid prosecuting others solely on the basis of their political connections or on the basis of whether they belong to the faction associated with the incumbent President or not, the credibility of that institution is fatally compromised.
When newspapers then report allegations of flagrant political interference in decisions to prosecute politically connected politicians (as the Mail & Guardian again did on Friday), few well-informed people will read such reports with scepticism. After all, we know that the NPA has often made decisions in the past based on political rather on legal considerations (including in the case relating to the prosecution of President Zuma and then later, the dropping of charges against President Zuma).
It was exactly to prevent this sorry state of affairs, that the drafters of our Constitution included a provision in section 179(4) of the Constitution which states that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Of course, politicians, including then President Thabo Mbeki and now President Jacob Zuma, do not like to focus on this section of the Constitution, instead pointing to section 179(6) of the Constitution to justify direct interference in the decisions of the NPA. This section states that: “The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
What the politicians choose to ignore is the following.
The Constitutional Court, in the First Certification Judgment, confirmed that despite this strange provision about the Minister having to exercise final responsibility for the NPA, the Constitution created an independent body in the following terms:
[Section] 179(4) provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.
The politicians also conveniently ignore the judgment of the Supreme Court of Appeal (SCA), in which it dealt with the need for the NPA to be independent while also taking cognisance of the need for the Minister to take final responsibility for the NPA in the following terms:
[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
That is why the NPA Act requires members of the prosecuting authority to serve “impartially” and exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law. The Act further provides that no one may interfere “improperly” with the NPA in the performance of its duties and functions (in section 32(1)(b) of the Act).
The Act confirms that the manner in which the Minister exercises final responsibility over the NPA is by obliging the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken. The Minister can ask for information, but cannot give any instructions or make any requests regarding the prosecution or non-prosecution of anybody (unless, of course, the Minister is intent on committing a criminal offence by “improperly” trying to influence the NPA).
Of course, problems around political interference in the work of the NPA and the corrupt influence of political loyalties on NPA decisions arise not only when the Minister tries to issue illegal and criminal instructions to the NPA (as former Minister Bridget Mbandla did when she sent a letter – drafted by Menzi Simelane – to former head of the NPA, Vusi Pikoli to stop the arrest of a crook who also happened to be the Police Commissioner ), but also when members in leadership positions inside the NPA stop acting in good faith and instead make decisions based purely on their own political loyalties and self-interest.
When they are willing to do the bidding of their political masters without being instructed to do so, or when they improperly follow the hints or instructions of the Minister or other member of the relevant political faction inside the ANC, they destroy the credibility of the NPA and directly undermine the Rule of Law by creating a situation in which some criminals are above the law because of the political protection they enjoy.
The allegations in the Mail & Guardian regarding the interference in the “Three Amigo’s” case as well as the allegations tha5t the disciplinary charges were brought against prosecutor Glynnis Breytenbach for what appears to be her rather enthusiastic pursuit of the company owned by President Zuma’s financial benefactors, the Gupta’s, or because of her pursuit of that bastion of probity and honesty, Richard Mdluli, illustrate the dangers of the political “capturing of the NPA rather well.
Even if all these allegations are false, given the past abuse of the NPA many people will think them credible or even true. They will think it is true because the chickens have truly come home to roost for the politically much abused and subverted NPA. Who on earth is ever going to believe the protestations of the NPA that there is no political interference when there is such strong proof of on-going political interference at the NPA? I know, I won’t.
It is ironic that President Zuma, who complained bitterly about the abuse of the NPA by the Thabo Mbeki faction when he was facing corruption charges has overseen the further erosion of trust in this institution. I guess it was bad when the other guys were doing it, but now that he is in charge the principles are slightly different to suite the politics. But I guess he will only realise how the chickens have ccome home to roost if he loses his bid for another term as ANC and South African President and again faces the possibility of having to explain to a judge why he took a bribe from Schabir Shaik.
Source: Constitutionally Speaking
Well, the chickens are coming home to roost big time with regard to the on-going political manipulation and abuse of the National Prosecuting Authority (NPA) by various political factions within the ANC. When a perception takes hold that the NPA will prosecute some and avoid prosecuting others solely on the basis of their political connections or on the basis of whether they belong to the faction associated with the incumbent President or not, the credibility of that institution is fatally compromised.
When newspapers then report allegations of flagrant political interference in decisions to prosecute politically connected politicians (as the Mail & Guardian again did on Friday), few well-informed people will read such reports with scepticism. After all, we know that the NPA has often made decisions in the past based on political rather on legal considerations (including in the case relating to the prosecution of President Zuma and then later, the dropping of charges against President Zuma).
It was exactly to prevent this sorry state of affairs, that the drafters of our Constitution included a provision in section 179(4) of the Constitution which states that: “National legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice”. Of course, politicians, including then President Thabo Mbeki and now President Jacob Zuma, do not like to focus on this section of the Constitution, instead pointing to section 179(6) of the Constitution to justify direct interference in the decisions of the NPA. This section states that: “The cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority”.
What the politicians choose to ignore is the following.
The Constitutional Court, in the First Certification Judgment, confirmed that despite this strange provision about the Minister having to exercise final responsibility for the NPA, the Constitution created an independent body in the following terms:
[Section] 179(4) provides that the national legislation must ensure that the prosecuting authority exercises its functions without fear, favour or prejudice. There is accordingly a constitutional guarantee of independence, and any legislation or executive action inconsistent therewith would be subject to constitutional control by the courts.
The politicians also conveniently ignore the judgment of the Supreme Court of Appeal (SCA), in which it dealt with the need for the NPA to be independent while also taking cognisance of the need for the Minister to take final responsibility for the NPA in the following terms:
[T]he Constitution on the one hand vests the prosecutorial responsibility in the NPA while, on the other, it provides that the Minister must exercise final responsibility over it. These provisions may appear to conflict but, as the Namibian Supreme Court held in relation to comparable provisions in its Constitution, they are not incompatible. It held (I am using terms that conform with our Constitution) that although the Minister may not instruct the NPA to prosecute or to decline to prosecute or to terminate a pending prosecution, the Minister is entitled to be kept informed in respect of all prosecutions initiated or to be initiated which might arouse public interest or involve important aspects of legal or prosecutorial authority.
That is why the NPA Act requires members of the prosecuting authority to serve “impartially” and exercise, carry out or perform their powers, duties and functions “in good faith and without fear, favour or prejudice” and subject only to the Constitution and the law. The Act further provides that no one may interfere “improperly” with the NPA in the performance of its duties and functions (in section 32(1)(b) of the Act).
The Act confirms that the manner in which the Minister exercises final responsibility over the NPA is by obliging the NDPP, at the request of the Minister, to furnish the latter with information or a report with regard to any case and to provide the Minister with reasons for any decision taken. The Minister can ask for information, but cannot give any instructions or make any requests regarding the prosecution or non-prosecution of anybody (unless, of course, the Minister is intent on committing a criminal offence by “improperly” trying to influence the NPA).
Of course, problems around political interference in the work of the NPA and the corrupt influence of political loyalties on NPA decisions arise not only when the Minister tries to issue illegal and criminal instructions to the NPA (as former Minister Bridget Mbandla did when she sent a letter – drafted by Menzi Simelane – to former head of the NPA, Vusi Pikoli to stop the arrest of a crook who also happened to be the Police Commissioner ), but also when members in leadership positions inside the NPA stop acting in good faith and instead make decisions based purely on their own political loyalties and self-interest.
When they are willing to do the bidding of their political masters without being instructed to do so, or when they improperly follow the hints or instructions of the Minister or other member of the relevant political faction inside the ANC, they destroy the credibility of the NPA and directly undermine the Rule of Law by creating a situation in which some criminals are above the law because of the political protection they enjoy.
The allegations in the Mail & Guardian regarding the interference in the “Three Amigo’s” case as well as the allegations tha5t the disciplinary charges were brought against prosecutor Glynnis Breytenbach for what appears to be her rather enthusiastic pursuit of the company owned by President Zuma’s financial benefactors, the Gupta’s, or because of her pursuit of that bastion of probity and honesty, Richard Mdluli, illustrate the dangers of the political “capturing of the NPA rather well.
Even if all these allegations are false, given the past abuse of the NPA many people will think them credible or even true. They will think it is true because the chickens have truly come home to roost for the politically much abused and subverted NPA. Who on earth is ever going to believe the protestations of the NPA that there is no political interference when there is such strong proof of on-going political interference at the NPA? I know, I won’t.
It is ironic that President Zuma, who complained bitterly about the abuse of the NPA by the Thabo Mbeki faction when he was facing corruption charges has overseen the further erosion of trust in this institution. I guess it was bad when the other guys were doing it, but now that he is in charge the principles are slightly different to suite the politics. But I guess he will only realise how the chickens have ccome home to roost if he loses his bid for another term as ANC and South African President and again faces the possibility of having to explain to a judge why he took a bribe from Schabir Shaik.
Source: Constitutionally Speaking
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