DA to submit Private Members Bill limiting President's powers regarding Head of SIU

Note to editors: the following press statement and attached documents were handed out at a press conference in Parliament today with DA Leader, Helen Zille, and the DA's Shadow Deputy Minister of Justice and Constitutional Development, Debbie Schafer MP.

Under the Zuma presidency, South Africa's justice system has been significantly politicised in an effort to protect his own interests and those of the ANC. This is not only a threat to our hard-won constitutional democracy, but undermines the fight against crime and corruption, and the securing of a better life for all South Africans.

President Zuma has also displayed an attitude of contempt for the rule of law and the courts, which is now emulated by some of his Cabinet Ministers, who ignore court orders with impunity. (See detail in outlining document).

As South Africa continues to decline on the Corruption Perception Index, currently being rated 69th out of 187 countries in the index (we were 64), and the crime rate continues to remain unacceptably high and the conviction rate unacceptably low, we can no longer ignore the President's ongoing failure to appoint a permanent, fit and proper National Director of Public Prosecutions (NDPP) and head of the Special Investigating Unit (SIU).

It is also critical to highlight how inappropriate appointments have led to cases simply being ignored for years on end, whether deliberately or otherwise, which undermines peoples' confidence in the system as a whole. Nomgcobo Jiba, whose problematic record speaks for itself and can be found in the outlining document, has served as the National Director of Public Prosecutions for 17 months and there is still no decision as to when a permanent appointment will be made. This follows the appointment of Menzi Simelane, which was found to be unconstitutional and invalid by the Constitutional Court in October 2012 as the result of the DA challenging the matter in court.

Under Jiba's watch, the following events have occurred, which we believe to be politically motivated:

• Dropping of the charges against Richard Mdluli;
• Allowing the accused's lawyers to decide, in the "spy tapes" case, whether the evidence fell within the ambit of breaching confidentiality attaching to the representations" which was excluded by the court order;
• Replacing Simphiwe Mlotshwa as DPP in KwaZulu Natal with Moipone Noko-Mashila, who has dropped the charges in the "Amigos" case, and "temporarily withdrawn" the charges against Thoshan Panday and Navin Madhoe, close business associates of the President's son, Edward Zuma; and
• Noko-Mashila has also refused to prosecute ANC members who violated the Regulation of Gatherings Act when the DA went to visit President Zuma's Nkandla home, alleging that the local traditional leader had given permission.

Now we read in the media that the President is considering appointing Pinetown magistrate Stanley Gumede as the new NDPP. We believe that there is substance to this speculation.

We have thus done some investigating as it was reported that he is the subject of a number of complaints at the Magistrates Commission. 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; and
• Cross-examining witnesses whilst he was the presiding officer.

The fact that the President is even considering someone who exhibits such unbecoming conduct as a judicial officer shows that he has not learnt anything from the Simelane judgment, and actually that he does not care. If an announcement is made that Mr Gumede is the NDPP, the DA will challenge this appointment. We do not wish to destabilise the NPA, which has been in a precarious position for far too long, but we will not stand by and watch as President Zuma continues to thumb his nose at the rule of law and the Constitution whilst weaving his web of protection from scrutiny and prosecution.

Yesterday also marks 17 months since Advocate Nomvula Mokhatla was appointed as the acting head of the Special Investigating Unit (SIU). Despite several promises by the Minister of Justice and Constitutional Development, Jeff Radebe, that this position will be filled "imminently", it has not been.

Mokhatla's mismanagement of the SIU has been highlighted by us for some time now. The loss of experience caused by a number of senior SIU staff leaving was clear for all to see at their latest appearance before the Justice Portfolio Committee.

The politicisation is also evident when comparing the manner of operation of the SIU in other provinces and the Western Cape. Minister Anton Bredell has been waiting for a report from the SIU into alleged corruption at the Oudtshoorn, George and Stellenbosch municipalities. Advocate Mokhatla confirmed at the recent portfolio committee meeting that they always issue progress reports during their investigations.

She could not explain why it was not done in the Western Cape. A promise was made at that portfolio committee meeting that the SIU would liaise with Minister Bredell urgently. This has not happened, despite every effort on his part. We would expect the SIU to take every possible step to assist those wishing to combat corruption, but here we see the opposite.

Both the NPA and the SIU have been characterised by their poor investigation records as a result of their lack of leadership and internal cohesion.

Together with the SAPS, they have not managed to investigate one of 22 cases laid by the DA or DA-led governments, some from as far back as 2006. (See attached schedule)

It is therefore of little surprise when, as we witnessed last week, J Arthur Brown was able to get off with a mere "slap-on-the-wrist", by all accounts as a result of either corruption or cluelessness by the NPA, or when police officers were acquitted for the death of Andries Tatane due to a lack of evidence in the trial.

South Africa cannot be expected to wait any longer for these key appointments to be made. The reality is that by leaving these appointments to the President in the first place, the process has been left open to political abuse.

This must be prevented in the future by removing this power from him. It is for this reason that I will table a Private Members Bill to amend the Special Investigating Unit and Special Tribunals Act to provide that Parliament play a more central role in this process, specifically that:

• An SIU head can only be appointed by the President "on the recommendation of the National Assembly";
• A person can only act in the position of SIU Head for a period not exceeding 6 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
• The SIU is to table 6 monthly progress reports to Parliament in respect of each investigation they have been assigned.

Together with our colleague, Dene Smuts MP, who has been driving this issue since 2010, the DA will also continue to push strongly for an amendment to s179 of the Constitution to provide that the President likewise must appoint the NDPP on the recommendation of the National Assembly.

It is time for us to restore credibility in the justice system in South Africa. These steps alone will not solve all the problems that need to be dealt with, but we believe that they will go a long way.

The other vital requirement is strong and principled leadership at the highest level. This is completely lacking at present and can only be solved next year at the ballot box.

Statement issued by Debbie Schafer MP, DA Shadow Deputy Minister of Justice and Constitutional Development, May 22 2013

Text of President's reply on the matter:

THE PRESIDENCY: REPUBLIC OF SOUTH AFRICA

Private Bag X1000, Pretoria, 0001

NATIONAL ASSEMBLY

WRITTEN REPLY

Internal Question Paper No. 6 of 2013

Date Published: 8 March 2013

346. The Leader of the Opposition (DA) to ask the President of the Republic:

What is the new deadline for the appointment of permanent heads to the (a) National Prosecuting Authority (NPA) and (b) Special Investigating Unit (SIU)? NW492E

REPLY:

There is no deadline for the appointment of the heads of the National Prosecuting Authority and Special Investigating Unit. The President is in the process of appointing the heads of both structures and these appointments will be announced once they have been finalised.

Issued by Parliament, May 22 2013

Click here to sign up to receive our free daily headline email newsletter