The politicisation of South Africa's Criminal Justice System

22 May 2013

Introduction

In the wake of last week's J Arthur Brown fiasco, the South African public is quite correctly asking, what is going on with our justice system?

When a high court judge slates the prosecution as Judge Anton Veldhuizen did last week, we need to ask serious questions about what has led us to this point. When he says that if he had the evidence before him before he accepted the plea agreement, he may well not have accepted it, this indicates a profound problem. Based on the reports to date, it would appear that either the prosecution acted in a corrupt manner in order to secure Brown's "slap-on-the-wrist" sentence, or they were just completely clueless.

The DA will most certainly be asking further questions on this matter.

There is much documented about various aspects of the justice system in South Africa, but looking holistically, a very gloomy picture emerges.

As we shall elucidate during this briefing, the primary problems are the following:

• the appointment of people to crucial positions in the system for reasons of political allegiance;
• people who are not suitably experienced and qualified for the job at hand; and
• government's attitude towards the courts and rule of law.

Background

It is well known how President Jacob Zuma ascended to the Presidency in 2009 amidst the controversy of 783 criminal charges against him being suspiciously dropped after Advocate Vusi Pikoli was removed as NDPP by President Thabo Mbeki, and replaced with Advocate Mokotedi Mpshe.

It is thus perhaps not surprising that under Zuma's presidency we have seen the most significant undermining of the South African justice system since the end of apartheid. The DA believes that it is important to highlight the exact extent of this undermining, as it is vital for voters to realise this in the run-up to next year's elections before they make their choice as to whether they wish our country to continue on this trajectory. It is also essential that voters understand the consequences of returning the ANC to office under these circumstances.

Our constitution is premised on a strict separation of powers, which is necessary to ensure a functioning and flourishing democracy. Whilst this relates strictly to the judiciary as being independent, it is also essential that people in key positions of power in the various law enforcement institutions should be fit and proper, and must act in a manner that is without fear or favour.

There is no point having an independent judiciary if cases never even reach the courts because the police either do not investigate certain cases because of who is involved, or because they do not have the relevant expertise. It does not help if the prosecution does not prosecute certain cases because individuals are involved who are close to the governing party or a faction of it, or the prosecutors are not competent enough to conduct the cases properly.

It goes without saying that in order to have a credible justice system, people who occupy all the senior positions in the system must not be beholden to any political party or individual in any political party. They must also be suitably qualified and experienced to occupy the positions they hold, as they provide leadership to the entire organisation that they head.

The proper functioning of the justice system is what stands between a functioning democracy on the one hand, and dictatorship and anarchy on the other. Where a government knows that it can act with impunity, and protect its friends from consequences, as it controls all levers of power, this opens the way for abuse of power and corruption.

When people know that they can act with impunity because the chances of being arrested and convicted are minimal, that opens the way for anarchy. When close friends of the President can commandeer a strategic air force base for their private wedding guests, secure in the knowledge that they will suffer no legal consequences, it illustrates just how far down the road we are in failing to maintain the rule of law.

Lack of confidence in the justice system also seriously affects our country's investment attractiveness, and thus the whole economy. South Africa dropped from 64^th in 2011 to 69^th in 2012 out of 176 countries in terms of Transparency International's Corruption Perception Index for 2012. This is one of the consequences of a system that fails to ensure that criminals are arrested and speedily and effectively prosecuted.

It is our view that instead of spearheading the fight against corruption by supporting and promoting the independence of the relevant institutions in the justice system, President Zuma has actively undermined the principle of the separation of powers and the justice system as a whole by appointing people to crucial positions who are not fit and proper, his primary objective being to protect himself, his family and associates from legal scrutiny.

Crucial appointments

After escaping prosecution and being elected to the presidency, President Zuma set about appointing key allies to the portfolios of Justice (Jeff Radebe), Police (Nathi Mthethwa) and State Security (Siyabonga Cwele). He then made work of appointing people to key positions in the justice system who have inspired no confidence at all either in their abilities or their independence.

Menzi Simelane

Menzi Simelane's appointment as National Director of Public Prosecutions came as a shock to many. He had previously presided over the Justice Department as Director-General, where he managed to obtain 5 qualified audits in a row, with no visible sign that this was going to change.

In addition, he had recently been a witness at the Ginwala Commission of Inquiry, which had slammed him for giving contradictory evidence and evidence which had no basis in fact or in law.

Notwithstanding this, and on the advice of the Justice Minister Jeff Radebe, President Zuma appointed him to the highest prosecutorial position in the country, where he had ultimate authority to decide who is prosecuted and who not.

It was only as a result of the DA taking this decision on review that this completely unsuitable appointment was set aside by the Constitutional Court in October 2012.

Nomgcobo Jiba

As a result of the DA's court action, the President then appointed Adv. Nomgcobo Jiba as acting head of the NPA with effect from 21 December 2011. She is still acting in this position some 17 months later.

At the time, the DA expressed astonishment at the appointment of Jiba, who was, until late 2009, facing internal charges of unprofessional conduct, dishonesty, fraud and bringing the NPA into disrepute.

The internal charges she was facing appeared to relate to a personal vendetta she was waging against her superior, Adv. Gerrie Nel, who was involved in the prosecution of her husband.

When Jiba was suspended pending the resolution of the internal charges, Menzi Simelane, who was at that time the Director-General in the Department of Justice, intervened and wrote a letter to then NDPP, Mokotedi Mpshe, questioning his right to suspend Jiba. She reportedly also received backing from Richard Mdluli, and Adv. Lawrence Mrwebi, now head of the Specialised Commercial Crimes Unit.

Advocate Jiba is rather significantly seen to be beholden to President Zuma as a result of his pardoning her husband, Booker Nantsi, after a conviction for stealing a client's trust monies.

She is quite clearly politically connected and owes allegiance to President Zuma and his acolytes.

If media reports are to be believed, the person who is being touted as the new NDPP is magistrate Stanley Gumede, of President Zuma's home province of KwaZulu-Natal. He is reported to have been approached by President Zuma's legal adviser, Michael Hulley.

At the time of the report, Gumede was said to be facing a number of charges at the Magistrates Commission. We have since done some investigating into Mr Gumede. The information at our disposal to date is that Mr Gumede has a long history of acting completely inappropriately in his court. Complaints include:

• Proceeding with a criminal case in the absence of a prosecutor;
• Releasing accused in custody on Schedule 6 offences without a formal bail application;
• Interfering in the prosecution's case, and dictating to them which witness they should or should not call;
• Being abusive towards prosecutors, court staff and witnesses;
• Indicating during the state's case that he had accepted certain evidence, before the cross-examination had taken place;
• Cross-examining witnesses whilst he was the presiding officer;

Some cases which exhibit this inappropriate behaviour are:

• S v Khanyile Pinetown Regional Court Case number 168/2009
• S v Meyiwa Pinetown Regional Court Case Number 90/2009
• S v Madondo Pinetown Regional Court Case Number 392/2010
• S v Shangase Pinetown Regional Court Case Number 275/2012

This behaviour is completely unbecoming of a judicial officer, and exhibits a profound ignorance of or disdain for the judicial process. If the President does appoint this man as NDPP, it will be challenged. How he can even be considering it beggars belief.

Special Investigating Unit (SIU)

Since the abolition of the Scorpions, the only body with teeth that exists to fight corruption is the SIU. Even though the SIU can only act when the President issues a proclamation, once they have the mandate, they can investigate everything and everyone involved in that matter.

In terms of section 3(4)(d) of the Special Investigating Unit and Special Tribunals Act, the president may only remove the head of the SIU "if there are sound reasons". On 29 November 2011, President Zuma removed Adv. Willie Hofmeyr as head of the unit. To this day he has not given the reasons behind this decision.

On 5 December 2011, Helen Zille wrote to the President requesting reasons. She has received an acknowledgement of receipt and nothing further. Never mind the contempt that this exhibits towards the Leader of the largest opposition party in the country, it even more fundamentally exhibits contempt for the rule of law in this country. The President seems to think that he can disregard the country's laws whenever he sees fit, secure in the knowledge that he will not suffer any consequences, as he knows that the people he has put in the crucial positions would not dare to take action against him.

Adv. Heath was then replaced within two weeks after he resigned in the wake of statements against former President Thabo Mbeki, and President Zuma then appointed Adv. Nomvula Mokhatla as acting head with effect from 21 December 2011. She thus celebrated her 17th month acting in that position yesterday.

Consequences

As a result of the politically influenced appointments, the ANC government has ensured that it can continue with its looting spree and ensure that politically connected individuals are protected from prosecution.

The most detrimental consequence of Simelane's tenure was his attempt to restructure the NPA. He effectively disbanded the Specialised Commercial Crimes Unit and almost did the same with the Asset Forfeiture Unit. The DA's Dene Smuts MP successfully opposed this, but in the meantime the former head of the Unit, Chris Jordaan was redeployed and has since left the NPA - more experience has been lost.

This restructuring has also been alleged by the acting NDPP as the reason for the NPA's current financial problems and for lower convictions.

Also under Simelane's tenure, he ordered the Asset Forfeiture Unit (AFU) not to pursue an attempt to seize millions of rands - allegedly the proceeds of bribes from arms multinational BAE Systems - held offshore by arms-deal kingpin Fana Hlongwane. This was after the AFU team had already obtained a provisional court order, a so-called ‘preservation order', against Hlongwane.

During Jiba's tenure as acting NDPP, she has presided over the following significant events:

• She has replaced Simphiwe Mlotshwa with Moipone Noko-Mashilo as Director of Public Prosecutions (DPP) in KwaZulu Natal, the heartland of President Zuma's support base. It was reported that Mlotshwa was removed for his "persistence" in prosecuting the Amigos case. Under Noko-Mashilo's watch, the charges of fraud and racketeering against the accused in the so-called "Amigos" trial have been dropped without reasons being given.
• In addition, she has "temporarily withdrawn" the charges against Thoshan Panday and Navin Madhoe, who are known to be close business associates of the President's son Edward Zuma. Adv. Jiba did say that the withdrawal is for strategic reasons, and implied to us that they were needed in another case. We will, however, be watching this closely.
• Given that, prior to Noko-Mashilo's appointment, Lawrence Mrwebi was alleged to have intervened in attempting to have charges withdrawn in both these politically significant matters, we are suspicious to say the least. Ironically, this is the very same Lawrence Mrwebi who is now heading the Specialised Commercial Crimes Unit. In the meantime the whole organised crime unit has been disbanded and crime is flourishing in KwaZulu Natal.
• Charges of fraud against Richard Mdluli being dropped in 2011, relating to his alleged abuse of crime intelligence funds. The head of the SCCU, Adv. Lawrence Mrwebi, admitted during the disciplinary hearing of Glynnis Breytenbach, that he had not consulted with the Director of Public Prosecutions in Pretoria as required by law.
• She allowed the President's lawyers to decide whether evidence in the "spy tapes" issue fell within the realm of breaching "any confidentiality attaching to the representations" made by President Zuma to the NPA which led to the dropping of the charges against him. The court ordered the NPA to hand over the reduced record in April 2012. We have still to see the evidence. The decision was clearly one for the prosecution to make. The fact that they permitted the accused's own lawyers to interfere in the process is horrifying, and serves to illustrate the dangers we are highlighting today. Jiba argues that there was an agreement between our lawyers and themselves to permit that. The fact that our lawyers deny it shows that there clearly was not.

In the SIU, under Mokhatla's acting tenure, she has presided over the controversial reinstatement of Miseria Nyathi, contrary to two legal opinions. The following senior people have either resigned or been dismissed:

• Warwick Meier - head of Forensic Data Department
• Marika Muller - SIU Company Secretary and Acting Head of Communications
• Peter Bishop - Acting Projects Director overseeing the core business of the SIU
• Clint Oellerman - Senior Programme Manager
• Karam Singh - Project Research Analyst
• Sello Makubela - Senior Enterprise Architect

The loss of experience was clearly evident at the recent budget presentation before the Justice Portfolio Committee. She could hardly answer any questions that were put to her. Her officials did not fare much better. The targets set were lower than previously, and it is quite clear that she is out of her depth. A once well-oiled corruption-busting vehicle is now a creaking wheelbarrow.

It leads us to the unavoidable conclusion that there is a deliberate attempt to disempower corruption busting institutions, whilst continuing to say that the government is serious about fighting corruption.

The politicisation of the SIU was clearly evident when I questioned Adv. Mokhatla on why the SIU Report into the Oudtshoorn, George and Stellenbosch municipalities has still not been given to the Western Cape MEC for Local Government, Anton Bredell, despite repeated requests. He had been asking for the report repeatedly - as he was advised that it was completed in August 2012 - and that there was corruption identified therein, which he wanted to deal with. The Western Cape SIU head, Mike Leaser, himself having been rescued by Mokhatla from a slew of disciplinary charges against him, stated simply that they were not obliged to give the report to the MEC.

Upon my questioning whether in other provinces the reports were given to the MEC, Mokhatla quickly advised that they did give them progress reports. When asked why it was different in the DA-run Western Cape, no satisfactory answer could be given and we were told that they would liaise with Minister Bredell shortly. Minister Bredell has been requesting a meeting with the SIU ever since. He had one appointment which was cancelled. He has advised that he will fly to their offices at any time they make themselves available. No time has been forthcoming. This would appear to be deliberately frustrating dealing with any corruption that may be identified in the report.

If the President were as concerned about combatting corruption as he and the ANC claim to be, this position would also have been filled as a matter of urgency, with a person who has the requisite experience and qualifications, and who is prepared to act without fear or favour.

Again, there has been media speculation that the position is to be filled shortly, but no official announcement from the presidency, leaving the South African public in the dark yet again. The Justice Minister announced in August last year that it would be filled "imminently". We think the Minister needs a dictionary so that he can understand the true meaning of "imminent". According to the Collins dictionary, "imminent" means "almost certain to happen very soon". Even in government terminology, nine months hardly falls into that category.

Attitude toward the justice system and contempt of court orders

At the 2011 Access to Justice Conference, President Zuma made utterances which caused consternation among many. He complained that "people who did not win elections" were trying to govern by taking matters to court. The reality escaped him that he needs to make decisions that comply with the Constitution, and that if he did so, it would not be necessary for the courts to be approached.

The President's and his Cabinet's disdain for the justice system can be seen both through their words and actions. He now simply ignores court orders, as do his cabinet ministers. We have already mentioned the court order which directed the NPA to hand over the spy tapes. Under the President's "leadership", other departments have followed suit.

Late last year, Minister of Agriculture Tina Joemat-Pettersson made statements during the Western Cape farm strikes that she would ensure that nobody was charged with and prosecuted for crimes of damage to property relating to the strike. She clearly believes that she has influence over the SAPS and NPA to have made such a statement. She was not censured by anyone in the ANC, so we can assume that they are comfortable with that situation.

To the credit of the judiciary, they do not appear to have bowed to the perceived threats from the executive. We trust that this will continue.

The following are some examples of court orders which government has failed to comply with:

National Government

Education

• On 25 January 2013, it was reported that Basic Education Minister Angie Motshekga, her DG Bobby Soobrayan and their Eastern Cape counterparts, Mandla Makupula and Mthunywa Ngonzo, had failed to comply with a court order to fill teaching posts.
• In October 2012, the North Gauteng High Court granted a third court order compelling the National and Limpopo Education Departments to urgently deliver textbooks to the province's schools. Judge Jody Kollapen granted an order in favour of Section 27 declaring that the departments had failed to comply with two court orders ordering them to deliver all textbooks by specified deadlines and to devise a catch-up plan for children and teachers as set out in the court order.

Home Affairs

• A study by the African Centre for Migration Studies found that the Department of Home Affairs actions also display a general contempt for the legal process. The report stated that "the Department fails to implement court orders, continues to act in direct contravention of judicial rulings, and openly states that its actions are not bound by the law in cases in which particular legal provisions would prevent it from undertaking actions it deems necessary, such as arbitrary and indefinite detentions".
• Department of Home Affairs failed to re-open the Refugee Reception Office in Cape Town after being ordered to do so.

Labour

• Commissioner Shadrack Mkhonto and Labour DG Nkosinathi Nhlekoto were found in contempt of court by a North Gauteng High Court judge two weeks after they failed to appear in court or explain the lengthy delay in the payment of claims made by a physiotherapist for injury-on-duty cases.

Police

• In the matter in which Police Minister Nathi Mthethwa is challenging Helen Zille's establishment of a Commission of Enquiry into the SAPS at Khayelitsha, the Western Cape High Court ordered the Minister to file papers by a certain date, in an application by Helen Zille and Community Safety MEC Dan Plato. The application was for the police minister to hand over certain documents. Judge Patricia Goliath said that it was unacceptable that the legal team for Mthethwa and three others had not handed in the court opposing papers within the prescribed time limit.

Agriculture

• Minister Tina Joemat-Pettersson was found in contempt of court in 2013 for failing to address the backlog in the administration of the registration of certain stick remedies which she was ordered to do in 2011.

Provincial Government

Limpopo Health and Social Development

• The MEC, Dr Norman Mabasa, had to appear before the North Gauteng High Court to explain why his officials ignored two earlier court orders. On 20 May 2011, his department was given 10 days to recalculate the salary of a nurse who was short-changed, and another 20 days to pay the money owed. Nothing was done for nearly 2 years to give effect to that ruling. Another ruling was then made in November 2012, and still nothing was done. The MEC was ordered to appear in person to explain why nothing had been done, failing which a warrant for his arrest would be issued.

Local Government

Ingquza Hill Council

• The Speaker of the Council, Nomfundo Gagayi, was locked out of her office for more than a month when the ANC defied a court order.  The municipality lost an appeal to the Supreme Court of Appeal to prevent Gagayi from being reinstated.

The essential question is, how many times must a court make an order before it is obeyed? The fact that Ministers continue to occupy their positions, with no sanction at all from the Presidency quite simply means that they enjoy the President's consent to disobey court orders at will. This is no example to set for the rest of the country.

Cases not being investigated

As we said earlier, by having a police service and/or an NPA that is politically compliant and/or which lacks the relevant skills can undermine the justice system in itself. The Schedule attached to this document is a list of 22 cases where the DA or DA-run government has laid charges against individuals in high profile cases. In the longest outstanding case, charges were laid in 2006. In not one single case has there been a complete investigation, nor has anybody been charged and brought to court. In most cases, there has been no feedback whatsoever.

This makes a mockery of the justice system. Either politically connected people are being protected, or the police and NPA are completely incompetent. Either way, it is a very sorry state of affairs.

Solution

There is no magic solution to this problem. There are quite simply four things that must be done, and urgently, in order for us to get the justice system back on track:

1. The President and his Cabinet need to lead by example. If you have an executive with the attitude of the current one towards court orders and court processes, it serves merely to encourage the general population to have the same attitude.
2. People must be appointed to positions in the police and prosecutions service who have the ability to do the job. They should not be appointed until they are in such a position. In addition, there needs to be intensive training for those who are already appointed, and who perhaps do not have sufficient expertise for the positions they currently occupy.
3. Important positions in the criminal justice system must be filled urgently with suitable people. It is wholly unacceptable to leave the positions of NDPP and SIU head vacant for 17 months.
4. We need to ensure that appointments to senior positions in the criminal justice system are independent, and fit and proper.

What the DA will do:

In order to minimise the potential politicisation of the positions of the NDPP and the SIU head, the DA will do the following:

• We have for some time now been pushing for a different appointment mechanism for the NDPP, where Parliament will have a significant role, such as with the appointment of the Public Protector and Auditor-General. We will continue to push for this appointment mechanism to be changed so that the President does not have discretion.
• Dene Smuts has proposed since 2010 an amendment to s179 of the Constitution to place the appointment of the NDPP in the hands of Parliament in the same way that the Chapter 9 institutions are appointed under s193. She continues to raise this proposal, first made by then President Motlanthe and Justice Minister Enver Surty, as well as all the MPs sitting on the Vusi Pikoli Ad Hoc Committee, and most lately with the present Justice Minister. No-one to date has rejected it.
• We shall propose a Private Member's Bill amending the Special Investigating Unit and Special Tribunals Act to provide that:
  • An SIU head can only be appointed by the President "on the advice of the National Assembly";
  • A person can only serve in an acting capacity as SIU Head for a period not exceeding six months;
  • An SIU Head may be removed by the President if there are sound reasons for doing so, "and with the approval of the National Assembly"; and that
  • The SIU is to table six monthly progress reports to Parliament in respect of each investigation they have been assigned.

We trust that this will go a long way towards bringing some credibility back to the justice system, and to our country.

Issued by the DA, May 22 2013

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