At a time when the judiciary is under growing pressure following 18 years of government by the African National Congress, a highly contentious civil and criminal action - involving senior ANC figures - is having to be adjudicated by the courts. This will be a further test of the courts' ability to adjudicate fairly and professionally, independent of the power of the executive.
In this case, it is a conflict internal to the ANC which presents a challenge to South Africa's judicial system, a challenge that transcends political boundaries.
At the heart of the issue is corruption: in particular, corruption institutionalised within the ANC as the ruling party of government. This has now been submitted to legal action in the courts by a group of long-standing ANC members outside of government and any senior office in the state, all former members of the ANC's military wing, Umkhonto we Sizwe (MK). This in itself makes this internal dispute within the ANC - which is now presented to the courts - even more than usually fractious, though all the more important to the future of the country.
The matter is especially pointed (some might say, ironic), given President Jacob Zuma's speech to the ANC policy conference on Tuesday this week in which he stated that "the ANC should be able to cleanse itself of alien tendencies", among which he listed such "alien tendencies" as "patronage, careerism, corruption and abuse of power."
In the real world, however, the "cleansing" by which ANC leaders accused in court of corruption have responded is through action taken outside of court against their accusers, in a heavy-handed manner reminiscent both of the ANC security department in exile, Mbokodo, and of the Broederbond in South Africa over the same period. It was publicly announced the day before President Zuma's edifying speech.
The issue facing South Africa is: - will the judicial system provide a proper hearing to the allegation of misappropriation of funds as placed before the courts, or will brute political power in the ANC and the state prevent this coming to an equitable judicial conclusion? This matter places a test upon the judiciary itself, as surely as did any vital application to the courts in the apartheid period. In this way, a matter internal to the ANC becomes a test case for the rule law in general. No citizen is unaffected.
A major article in the Mail & Guardian on 15 June, headed "Leading MK vets 'looted millions'", by Lionel Faull, stated:
"The top brass of the Umkhonto weSizwe Military Veterans' Association (MKMVA) turned investment holdings into their personal piggy bank, using funds to pay for jewellery, spa treatments and school drama lessons, and to withdraw large sums of cash before Christmas, a forensic report has alleged.
The association is an influential substructure of the ANC, often used to fight factional battles. It has long been plagued by suspicions of financial malfeasance, while rank-and-file veterans live in poverty.
The draft investigation report, by auditing firm SizweNtsalubaGobodo, directly fingers former association treasurer Dumisani Khoza, former chairperson Deacon Mathe, current treasurer Johannes "Sparks" Motseki and current chairperson Kebby Maphatsoe.
It alleges that they helped themselves to R5.4-million, almost half of all the money coming into two accounts that the auditors scrutinised. ...
The veterans behind the report have laid criminal charges against Khoza, Mathe, Maphatsoe, Motseki and the deputy public service minister and current secretary of the association, Ayanda Dlodlo, who received a R40 000 cash payout from the association in December 2008."
This report - accompanied by a graphic chart indicating cash flow, as set out by the auditing firm, SizweNtsalubaGobodo - was followed two days later by an article by Moffat Monageng in the Sunday Independent, headed "Pikoli given support from MK veterans". The article stated that a meeting of MKMVA members convened the previous day by a sub-section of the organisation, the Commissariat, had "come out in support of erstwhile prosecutions chief Vusi Pikoli after he was allegedly forced out" of the auditing firm SizweNtsalubaGobodo "because of political pressure from the ruling party".
In December 2008 Advocate Pikoli was forced out of office as director of the National Prosecuting Authority by former President (now Vice-President) Kgalema Motlanthe, after he had previously been suspended by former President Thabo Mbeki in September 2007 as a result of his efforts to prosecute the former head of South Africa's national police force, Jackie Selebi (subsequently jailed for corruption). Pikoli, a veteran of Umkhonto we Sizwe in exile, was present at the meeting. A member of the Commissariat alleged at the meeting that Pikoli had been forced out of this latest professional position "for sticking to principle."
A week later, and a day before the ANC's national policy conference, Kebby Maphatsoe - the most public figure on the MKMVA executive, and one of the four members accused in court of misappropriating the organisation's funds - announced this week that two members of the Commissariat had been expelled from MKMVA.
In an article in the ANC newspaper, The New Age (26 June) headed "MK vets back Zuma leadership", Maphatsoe was reported to have stated that two members of the Commissariat of MKMVA, Eddie Mokhoanatse (MK name Alex Mashinini) and Omry Mathabatha Makgoale (MK names Sidwell Moroka and Mhlongo), had been expelled from MKMVA.
According to the article, the MKMVA executive, represented by Maphatsoe and containing individuals accused of theft, "threw its weight behind the ANC leadership led by President Jacob Zuma in preparation for the ANC's upcoming elective conference."
One of the two individuals expelled, Omry Makgoale, was the appellant in the action Makgoale v Khoza (case number 2012/19824) brought against the respondents Maphatsoe, Khoza, Mathe, Motseki and Ayanda Dlodlo in the South Gauteng High Court on 1 June, with Adv Roshnee Mansingh appearing on behalf of Makgoale, in his capacity as secretary of the Commissariat. In addition to the five named former and current officials of MKMVA, the application cited also Deputy President Motlanthe and Speaker of the National Assembly, Max Sisulu, as alleged trustees of MKMVA.
The papers were served on the respondents on Wednesday 30 May at Luthuli House. A Notice of Opposition was not received.
Heard in Urgent Court before Judge Mayat on 1 June, there was no appearance for the Respondents. Judge Mayat then struck the matter from the Roll for lack of urgency.
The appearance of Mr Makgoale in this action is significant.
He took part in the Soweto school students' revolt on 16 June 1976 as a senior student at Morris Isaacson High School. Following training as a member of the ANC security department in the former German Democratic Republic, he was appointed as personal bodyguard of the ANC deputy president in exile, Oliver Tambo, in Lusaka. Along with other young members of the security department, he resigned his position as bodyguard in 1980 following the failure of Tambo to act on representations relating to corruption and abuse of power, accusations directed mainly against Joe Modise, the MK commander and later a central figure - as Minister of Defence - in the arms deal during the first six years of ANC government.
As district commander of Umkhonto we Sizwe in the Angolan capital at the time of the mutiny at Viana camp outside Luanda in February 1984, he was elected in his absence to the Committee of Ten to represent the concerns of the troops to the ANC leadership. When the MK troops were surrounded by armoured forces of the Angolan presidential guard, which had been summoned by Tambo, he persuaded them to lay down their arms to prevent a massacre.
Arrested and tortured in Luanda state security prison, he was the most senior MK commander to be imprisoned in Quatro prison camp. Released in late 1988 after nearly five years' detention, he was chosen by ANC exiles in September 1989 to hold the most senior elected position representing ANC members in Tanzania, as chairman of the Regional Political Committee. He and his Quatro colleague, the late Mwezi Twala, were then unilaterally removed from office in the RPC by Chris Hani and Stanley Mabizela, acting on behalf of the ANC National Executive Committee in Lusaka.
In 2006 Mr Makgoale was the organiser of the 30th anniversary commemoration of the 16 June 1976 uprising held by former Form 5A pupils at Morris Isaacson High School.
He is a senior engineer at Eskom, holding degrees in mechanical engineering from London South Bank University and from Wits.
This is the history which has now come to a head within the ANC, with its focal point the inflamed issue of corruption.
Unlike in Angola and Tanzania in the 1980s, however, the allegation of corruption and abuse of office brought by Mr Makgoale now takes place in a constitutional state, before a judiciary provided in the Constitution with independence.
His fate and that of his fellow members of the Commissariat will tell a great deal about the fate of the country.
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