Paul Ngobeni: DA urges Minister to act

On Friday morning, we sent a letter to the Minister of Defence, Lindiwe Sisulu, in response to the letter received from her office on 15 February, concerning the hiring of controversial figure Paul Ngobeni as a legal advisor to her Ministry.

The contents of the letter received from the Minister and that of the DA's response sent on Friday, follow below.

The correspondence between the Minister and the Democratic Alliance (DA) on this matter stems from a complaint laid with the Presidential Hotline on 14 September 2009 regarding Mr Ngobeni's appointment. Subsequent to the complaint lodged with the Hotline, the DA, in response to a request from the Ministry of Defence, wrote to Minister Sisulu on 28 January 2010.

In her response to this letter, dated 15 February, the Minister contested our argument that Mr Ngobeni had been suspended from the roll in the United States and is a fugitive from justice- and is therefore highly unsuitable for the advisory position he has assumed in her Ministry. Mr Ngobeni also left his position as deputy registrar at the University of Cape Town under a cloud of suspicion after an internal disciplinary process was conducted.

On Friday, we provided the Minister with irrefutable proof of Mr Ngobeni's status as a wanted criminal and his disbarment in the United States.

Faced with the necessary evidence about Mr Ngobeni, Minister Sisulu now has no option but to make a decision about his continued employment in her Ministry. Whether the Minister will take a principled stand against the hiring of unsuitable individuals on the grounds of political patronage, or whether she will decide to perpetuate this corrupt agenda, remains to be seen.

Either way, her decision will be a critical indicator of where the ANC government's true allegiance lies - with their political cronies or with the South African citizenry the government was elected to serve.

Letter from Minister of Defence and Military Veterans, Lindiwe Sisulu, to DA parliamentary leader Athol Trollip, February 15 2010:

15 February 2010

Mr A Trollip
Parliamentary Leader
Democratic Alliance
PO Box 15
Cape Town
8000

Fax no: 021 403 2689

Dear Mr Trollip

Appointment of Dr P Ngobeni as part time advisor

Your letter in the above regard, dated 28 January 2010, as well as your complaint lodged with the Presidential Hotline refer.

Repeated allegations have been made regarding Dr Paul Ngobeni. The allegations range from Dr Ngobeni being a fugitive from justice to him having being found guilty of misconduct including theft, larceny etc. None of this is true despite being repeated ad nauseum.

A. Dr Ngobeni is a fugitive

Dr Ngobeni has been in the USA a number of times since the first time the allegation was made. South Africa and the USA have some of the most effective extradition arrangement and this would have been activated if there was merit to the allegation. He is a public figure and continues to participate in the public life of this country. This is not the behavior of a fugitive from justice. Fugitives hide, and will even assume a different identity. Dr Ngobeni has taken a frontline position in the public domain, as you well know.  Hardly the demeanor of a fugitive.

B. Dr Ngobeni is banned from practicing law in several states in America

This is a baseless allegation that is meant to confuse. First is that he is admitted to more than 8 jurisdictions in the US, including the US Supreme Court itself. In December 2007, he resigned his membership in the Connecticut state bar and the Court made the following finding: "...there are matters pending before Judge Graham now, a jurisdictional challenge by you to his ability to proceed with disbarment and answer by you denying many of the claims made in the presentment that the Disciplinary Counsel has brought. You're not in any way today, by voluntarily resigning either conceding that the court has jurisdiction to proceed with disbarment or admitting any of the allegations against you in the presentment. Is that correct? See, Transcript page 8, lines 10-19. The Court went on to state that "...judgment of disbarment has been vacated and that a resignation has been accomplished...the record will be clear that Mr Ngobeni hasn't been disbarred; that the final resolution is by way of his resignation." Dr Ngobeni's detractors have refused to familiarise themselves with the actual transcript from the court which is publicly available. It is one those inconvenient truths they prefer not to reveal.

Dr Ngobeni is still a member of the bar in Massachusetts. A simple investigation will reveal this. In early 2008 the Bar Counsel submitted a motion to a single justice of the Massachusetts highest court seeking disbarment based on his Connecticut voluntary resignation. The court (Greaney J.) refused to grant the request and expressly noted that the Connecticut court's jurisdiction was disputed, no wrongdoing was established and no disbarment ordered.

To set the record straight, it is worth repeating what Dr Max Price, the University of Cape Town's Vice Chancellor had to say on the matter of Dr Ngobeni's departure from UCT. Writing to staff, Price wrote;

‘The media reported these as allegations of professional misconduct in his role as an attorney in Connecticut USA, as a result of which he had been suspended from practice in Connecticut, New York and Massachusetts. These charges were never proven and they were dropped in Connecticut after he resigned from the Connecticut bar and waived any future right to seek readmission to it. These facts were not known to UCT when Paul Ngobeni was appointed. Confronted with the public allegations, the UCT Council rightly raised concern about the substance of the allegations... The Council sought, and accepted, independent legal advice that was given at the time, viz. that these matters had no bearing on his employment at UCT and that he was not obliged to reveal them if we did not specifically ask him about them. I believe UCT erred in not making it public at the time that we had cleared Paul Ngobeni of any suggestion that he misled the university. There can be no question that we should have done so.'

Dr Ngobeni is a brilliant legal brain and I have no reason to question his integrity. I appointed him as a legal advisor based on his knowledge and ability to understand and advise me on the legal challenges facing the Department of Defence.

Should your information be contrary to the factual assertions detailed here, please feel free to submit these to myself.

 Yours sincerely

L N Sisulu, MP
Minister of Defence and Military Veterans

Letter from Athol Trollip, MP, to Minister Lindiwe Sisulu, March 19 2010:

19 March 2010

Minister Lindiwe Sisulu
Department of Defence and Military Veterans
Private Bag X427
PRETORIA
0001

Response to letter regarding the appointment of Paul Ngobeni

Dear Minister Sisulu,

The response to my initial letter, dated January 28, 2010, sent by your office on 15 February, 2010, appears to be both disingenuous and overlooking of key facts related to Paul Ngobeni's questionable legal integrity.

Key Areas of Concern

On March 28, 2008, a warrant for the arrest of Mr Ngobeni was issued by a Connecticut court after he failed to report for a court hearing. Communications Officer for the Division of Criminal Justice in the State of Connecticut, Mark A. Dupuis, confirmed the following in writing on 12 March 2010:

"Mr. Ngobeni is charged with four separate counts of Larceny and one count of Illegal Practice of Law. The present status of the case is ‘Rearrest Ordered', and he is considered a fugitive from justice by the State of Connecticut."

Mr Ngobeni's status as a fugitive from justice makes his appointment in your Department, especially in a legal capacity, greatly problematic.

In an attempt to dismiss his status as a fugitive, your letter states that Paul Ngobeni has visited the USA "a number of times since the first time the allegation was made." Mr Ngobeni may well have visited the United States since the first allegation. However, it must be clarified whether he made these trips after the 28 March 2008, when the warrant for his arrest was issued, and whether he visited the state of Connecticut or neighbouring states.

For Mr Ngobeni to have done so would be highly unlikely, as he would have been arrested and subject to the "effective extradition arrangements" to which your letter refers. Therefore, the argument that Mr Ngobeni's freedom of movement between the United States and South Africa serves to confirm his non-fugitive status, holds little weight.

Arguing that Mr Ngobeni's position as a fugitive can be disputed given his brazen re-involvement in South Africa's public life is more a testament to his audacious behaviour than proof that he is innocent of the allegations made against him. 

Factual Oversights

Your letter refers to a December 2007 court finding; see Transcript page 8, lines 10-19, as proof that Mr Ngobeni is not barred from practicing law in the United States. Furthermore, it is argued that the highest court in Massachusetts refused to grant a request for Mr Ngobeni to be disbarred based on his Connecticut voluntary resignation, expressly noting that "...the Connecticut court's jurisdiction was disputed, no wrongdoing was established and no disbarment was ordered."

At one point, your letter goes so far as to accuse Mr Ngobeni's detractors of refusing "...to familiarise themselves with the actual transcript from the court which is publically available. It is one of those inconvenient truths they prefer not to reveal."

The truth is inconvenient indeed.

In a subsequent decision made in Massachusetts in February 2009, which you conveniently omitted to mention, the court overruled the decision mentioned in your letter. It was found that, given Mr Ngobeni's voluntary resignation in Connecticut after a series of allegations of professional misconduct, the state of Massachusetts is permitted to institute reciprocal discipline against him. Mr Ngobeni would therefore be barred from legal practice in this state.

The court concluded that: "...the respondent's voluntary resignation in Connecticut unaccompanied by an admission or finding of misconduct warrants the imposition of reciprocal discipline in Massachusetts without the need to litigate the validity of the Connecticut charges. If an attorney like the respondent may permanently resign in another State in the face of serious allegations of misconduct- here involving multiple clients- but do so without admission of misconduct, and then practice in Massachusetts without restriction unless bar counsel undertakes the burdensome and expensive task of investigating and proving the other State's charges, it would "tend[] to undermine public confidence in the effectiveness of attorney disciplinary procedures and threaten []harm to the administration of justice and to innocent clients." See Transcript: Case Number SJC-10178, Supreme Judicial Court for the Country of Suffolk, page 6, lines 21-31.

The Massachusetts ruling confirms that Mr Ngobeni is currently barred from practicing under state law.

This case has been referred to the Court of Appeal and is currently awaiting decision.  As it stands, the above finding has a significant bearing on the original Connecticut ruling. Given that its outcome has been overruled, the finding of the Connecticut enquiry to which you refer is therefore no longer applicable to discussions concerning Mr Ngobeni's freedom to practice law in the United States.

Given Paul Ngobeni's proven status as fugitive from justice in the United States, his subsequent appointment as an advisor in your Department raises serious questions about the NIA clearance procedures followed as part of his application process.

On 8 September 2009, you confirmed that Mr Ngobeni had been vetted by the intelligence services prior to his appointment.  Quite how a wanted criminal could have obtained the high level clearance necessary to act in an advisory capacity to a Ministry for which such vetting is of primary importance, given the sensitive nature of the Defence Department's work, is of the utmost concern.

These points powerfully substantiate our initial argument- Paul Ngobeni is highly unsuitable for the position within the Ministry of Defence that he has assumed under your leadership, and for which he is remunerated using taxpayers' money.

I consider this an issue of public importance and will be making the correspondence related to this matter available to the press in the near future.

Given the serious nature of this situation, we request that Mr Ngobeni's appointment in your ministry be urgently reviewed.

Yours sincerely

Athol Trollip MP
Parliamentary Leader
Democratic Alliance

Statement issued by Athol Trollip, MP, Democratic Alliance parliamentary leader, March 22 2010

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