DEFENDING OUR DEMOCRACY: The DA’s plan to firewall key institutions

Introduction

South Africa is on the verge of a constitutional crisis. The institutions of our democracy, the principle of the separation of powers, and the Constitution itself, are increasingly being undermined.

Since coming to power in 2009, President Zuma has presided over a systematic project of state capture that has seen a number of key institutions, such as the National Prosecuting Authority, the Public Protector, and the South African Revenue Service side-lined and eroded by cadre deployment and ANC majoritarianism.

Under President Zuma we have also seen a dramatic rise in the power of the Executive relative to the other branches of government, and growing contempt for the independence of the Judiciary by the President and the Executive.

This culminated in the deliberate decision by the President’s Cabinet to violate both international and domestic law, and contravene two North Gauteng High Court orders, by allowing Sudanese President Omar Al-Bashir to escape South Africa on 15 June 2015.

The High Court found that the failure to arrest Al-Bashir, wanted under two arrest warrants issued by the International Criminal Court (ICC) was “inconsistent with the Constitution of the Republic.” Furthermore, it found that the decision by Cabinet to grant Al-Bashir immunity was invalid and unlawful.

When questioned about this decision, ANC secretary-general Gwede Mantashe decried what he referred to as “judicial purism” that “does not exist in real life” and “can’t be implemented.” It is on this basis that Mantashe claimed that “court orders like this will from time to time be disregarded.”

Remarks such as these, coupled with the disdain shown by the President for institutions such as the Public Protector, set a dangerous precedent for all ANC officials. Nepotism, cronyism and patronage have now become endemic at all levels of government. The example set by the President is symbolically seen as a license to plunder state coffers at the expense of ordinary South Africans.

Moreover, the ANC has come to believe that it is above the law and that its majority entitles it to bend the Constitution to its will in protection of its own.

This has been witnessed in their complicity in absolving President Zuma from accountability for the theft of public funds at Nkandla, and voting down a motion to establish an ad hoc committee to investigate his impeachment on the basis of his breaking of the law in the Al-Bashir matter.

It is in the context of these growing threats to the foundation of our democracy that the Democratic Alliance (DA) has set out to identify steps that can be taken to firewall some of our most important institutions against capture by the ANC through their programme of cadre deployment.

The Impact of Cadre Deployment

In any constitutional democracy it is essential that institutions are politically independent and not simply extensions of the ruling party. Cadre deployment provides the single biggest threat to this independence by blurring the line between party and state.

From as early on as 1997 the African National Congress (ANC) began to roll out a policy of cadre deployment. This was first formalised at the ANC’s 50th Annual Policy conference in December 1997. This included amendments to the ANC’s constitution to give the National Working Committee (NWC) responsibility over all ANC structures to ensure that all decisions of the National Executive Committee (NEC) were implemented across ANC party structures. Further, a policy resolution was adopted at the conference which mandated the NWC to deploy cadres to ‘key centres of power,’ to establish committees at all levels to oversee deployment, and to draw up a comprehensive party policy document in this regard.

Since then, South Africa has witnessed the ramifications of the roll out of this strategy. Broadly, it has resulted in a massive erosion of South Africa’s public service. Maladministration, corruption and poor service delivery are rife at all spheres of government. The Public Service Commission’s 2014 report entitled ‘Assessment of the Implementation of Policy Framework on the Appointment of Ministerial Staff in National and Provincial Departments’ paints a bleak picture of the failure of the public service due to unqualified and unskilled appointments – arguably the effect of widespread and prolonged cadre deployment by the ANC.

At a municipal level, the service delivery protests being witnessed around the country are arguably a visible ramification of the inefficiency and lack of capability caused by cadre deployment within the public service.

At a national level this is seen in various recent, previous and existing appointments which can only be said to be eroding South Africa’s institutions. Cadre deployment, and by extension the strategy of the ANC to gain complete centralised control of the state, has developed a culture where independent thinking, and persons who carry out their jobs without fear or favour, are very quickly shown the door by the ANC.

Aside from these instances, other key institutions are under threat from the Executive through political interference or through deliberate attempts to undermine their work and credibility when they challenge the Executive or attempt to hold it to account.

While the ANC has certainly failed in the goal of delivering services, it most certainly has succeeded in its plan to turn institutions of the state into extensions of itself. The ANC is failing at every level of governance precisely because of its cadre deployment policy. Effective performance means little when promotion and upward ‘deployment’ are determined solely on the basis of political loyalty.

The National Prosecuting Authority

The independence and integrity of the National Prosecuting Authority (NPA) is a pre-requisite for upholding the Constitution’s central pillar of equality before the law. The NPA thus sits at the heart of the country’s capacity to combat crime by prosecuting and securing conviction against alleged criminal offenders and delivering justice to countless South Africans affected by crime.

The NPA fulfils a crucial role within our criminal justice system. The DA is concerned about the future of the NPA because it is essential that in the post-apartheid, democratic South Africa our justice system is one in which everyone can trust. Importantly, it must be known to treat all South Africans equally before the law. This is currently not the case, as the President continues to evade some 783 charges of corruption, fraud and racketeering.

Over the years, the effects of cadre deployment within the NPA can been traced through the appointment and/or dismissal of former NPA heads Vusi Pikoli, Mokotedi Mpshe, Menzi Simelane, Nomgcobo Jiba, and most recently the replacement of Mxolisi Nxasana by Shaun Abrahams as National Director of Public Prosecutions (NDPP).

Vusi Pikoli

Pikoli was a deployed cadre, but once in the position as NDPP he managed to put his loyalty to the Constitution ahead of his loyalty to the ANC. Ultimately, Pikoli was ousted when he refused to takes sides between two factions of the ANC. First, President Mbeki suspended Pikoli because he had issued a warrant of arrest against Jackie Selebi on charges of corruption, and then President Motlanthe fired Pikoli for refusing to withdraw Zuma’s corruption charges.

Mokotedi Mpshe

Pikoli was replaced by acting NDPP, Mokotedi Mpshe. Mpshe is credited with single-handedly being responsible for the dropping of the charges against Jacob Zuma due to political reasons. The release of Spy Tapes, after a long legal battle by the DA, has revealed that the record of decision was baseless, irrational and should be set aside.

As part of its contention, the DA has argued that the record of decision reveals that Mpshe:

- did not make his decision based on an reassessment of his initial decision to institute criminal proceedings against Zuma;

- did not make his decision based on any new information;

- and did not make his decision based on any substantive content of the indictment containing the charges, or on concerns about the prosecuting team.

This leads to the conclusion that the withdrawal of the charges against Zuma could only have been politically motivated.

Menzi Simelane

The DA’s court challenge to the appointment of Menzi Simelane as the NDPP by President Zuma, and its ultimate success in having the appointment set aside, is a crucial example of the DA’s commitment to ensuring the institutional independence of the NPA. Importantly, the position of NDPP cannot be filled by individuals who are beholden and loyal to political masters.

Simelane's December 2009 appointment by Zuma was set aside by the courts on the basis that it was “inconsistent with the Constitution and invalid”.

While in the position of NDPP, Simelane was on record as believing, inter alia that the NDPP should be accountable to the Director-General of Justice and should not be independent, as required by the Constitution. He had also disputed that the Constitution guaranteed  the independence of the NPA, and stated it was legitimate for the Minister of Justice to determine whether a prosecution was in the public interest and should proceed or not.

Nomgcobo Jiba

Menzi Simelane was succeeded by Zuma’s ‘yes woman,’ Nomgcobo Jiba, as acting NDPP.

Jiba’s handling of charges against Richard Mdluli, former Crime Intelligence Head, and ardent supporter of President Zuma, has come under attack from within the judiciary itself. In August 2014 she was also criticised by the Supreme Court of Appeal (SCA) for her handling of the Spy Tapes matter, by deliberately failing to provide any meaningful affidavits or testimony and neglecting to mention any relevant facts regarding this court application. She also failed to produce “documents and other materials within her possession as the then acting NDPP, particularly in the face of an order of this court”.

Jiba was expressly found by the SCA to be unfit for office and found to be dishonest by the KwaZulu Natal High Court. She is currently facing a bid by the currently facing a bid to see her disbarred by the South African Bar Council.

Mxolisi Nxasana

The effect of the President’s overreach into the independence of the NPA via his powers to appoint and remove the NDPP have been made ever clearer in the recent saga involving now former NDPP, Mxolisi Nxasana.

All indications point to Nxasana having the backbone and respect for the Constitution that is needed in the NDPP. This is substantiated by his decision to reinstate the charges of murder, kidnapping and defeating the ends of justice against Zuma’s longtime friend, Richard Mdluli, and his decision to institute charges against Jiba (now in the position of deputy NDPP) and Lawrence Mwrebi.

In what can only be described as political interference, President Zuma announced that he would institute an inquiry into the fitness of Nxasana to hold office. The day this enquiry started, however, it was inexplicably stopped by the Special Advisor to the President, Michael Hulley. It would appear that President Zuma is using his power to institute judicial enquiries as a political tool to protect his personal interests – not the interests of the South African people.

Shaun Abrahams

Failing in his attempt to remove Nxasana through this inquiry, Zuma succeeded in removing him with a golden handshake. Nxasana’s replacement, Shaun Abrahams, is proving to be the deployed cadre that Zuma has long been looking for to pick up where Simelane and Mpshe left off.

Abrahams has irrationally dropped the charges against Jiba and Mwrebi and is instead preparing criminal charges against former South African Police Service (SAPS) head, Ivan Pillay, and former Hawks head, Anwa Dramat.

This confirms that President Zuma has used his appointing authority to once again deploy a cadre to the head of the NPA, having catapulted Abrahams over seasoned Directors of Public Prosecutions like Dr Silas Ramaite, to continue his campaign to ensure that those close to him are protected. Ultimately, President Zuma is doing everything in his power to ensure that he never sees the inside of a court room.

It is clear that the NPA and the South African criminal justice system continue to be undermined and eroded at the behest of President Zuma.

Recommendation

The current actions of President Zuma will have a long lasting, detrimental effect on the public perception of the NPA as an effective and impartial body responsible for prosecutions.

In the fair society envisioned by the DA, all South Africans, including President Zuma, will be equal before the law as is consistent with our constitutional democratic order.

It is clear that the independence of the NPA needs to be ensured. This crucial pillar within our criminal justice system must be firewalled from further cadre deployment to ensure that everyone is treated with fairness in our criminal justice system, and to ensure that prosecutions happen free from political interference or bias.

This can only happen when the head of the NPA has security of tenure and is appointed by the National Assembly and not by the President alone.

The President’s powers to appoint or remove the NDPP must therefore be amended so as to include the National Assembly’s oversight. This will provide the best safeguard for the institution against inappropriate political influence.

Specifically, the DA will introduce a Private Members Bill which will seek to amend the Constitution so as to require that the appointment of the NDPP is made on the recommendation of the National Assembly, by a vote requiring at least 60% support.

Further, it will propose amendments to the effect that dismissal of the NDPP will only be possible on (i) the ground of misconduct, incapacity or incompetence; (ii) a finding to that effect by a committee of the National Assembly; and (iii) the adoption by the Assembly of a resolution calling for that person’s removal from office.

Importantly, the Minister should no longer be allowed to exercise final responsibility over the prosecuting authority. This section of the Constitution ought to be deleted so as to bring final clarity on the NPA’s institutional independence. In this regard, Ministerial oversight may still be exercised through section 179 (5) which requires that broad prosecution policy must be determined in concurrence with the Minister. This is an acceptable means for a democratically elected government to influence prosecution priorities. This will prevent inappropriate Ministerial interference thereby strengthening the NPA’s prosecutorial independence.

The DA believes that such an amendment to the Constitution will provide a firewall against cadre deployment and political manipulation over the position of NDPP, and will further serve to strengthen the effectiveness of the NDPP by providing the office not only with security of tenure, but with much needed prosecutorial independence.

The Judiciary and Judicial Services Commission

The existence of a fully functional and fair legal system speaks to the core promise of a post- apartheid South Africa; a state capable of delivering justice to its people. A necessary condition for this is a judiciary up to the task of fulfilling this promise which necessitates that the appropriate individuals are appointed to the bench.

There is general agreement that a Judicial Service Commission (JSC) should include politicians alongside judges and representatives of the legal professions – and this is supported by the DA. But the balance which was achieved in the Interim Constitution was lost in the final Constitution. At certification there was an objection against the preponderance of politicians with the Constitutional Court noting that “its composition was a political choice”. It remains a political choice, and the National Development Plan rightly points out that the JSC is now too large and is hamstrung by political interests.

Public criticism of the Judiciary by the Executive

President Zuma’s term of office has been marred by the flagrant contempt that he and his Executive have demonstrated for the Judiciary. Recent attacks have included assertions that judges are being influenced to reach specific verdicts. The DA has commended the subsequent rejection of these attacks by Chief Justice Mogoeng Mogoeng and Deputy Chief Justice, Dikgang Moseneke and their subsequent reaffirmation to resisting undue political influence.

The current wave of public criticism by President Zuma and his cabinet is evidence of an increasing attempt by the ANC to intimidate the Judiciary away from its constitutional obligations in favour of protection of the ANC elite – in true cadre deployment policy style.

Breach of the Constitution and Separation of Powers principle

The most brazen example of this was when the Executive aided departure of wanted war criminal, Sudanese President Omar Al-Bashir in June this year. Cabinet collectively accepted and decided that the South African government, as the hosting country of a summit of the African Union (AU), was first and foremost obliged to uphold and protect the immunity granted to Al- Bashir by the AU and thus not to arrest him.

On 15 June 2015 a full bench of the North Gauteng High Court declared the conduct of the Ministers of Justice and Constitutional Development; Police; International Relations and Cooperation; Home Affairs; their respective Director-Generals; the South African Police Service; the National Director of Public Prosecutions; the Head of the Directorate of Priority Crimes Investigation and the Director of the Priority Crimes Litigation Unit (the Respondents) to the extent that they failed to arrest Al-Bashir to be inconsistent with the Constitution of the Republic, and invalid.

This followed an interim order, by the same court on 14 June 2015, prohibiting Al-Bashir from leaving the Republic. This interim order also found that failure of the Respondents to prepare to take steps to arrest and/or detain President Bashir to be inconsistent with the Constitution of the Republic.

Following from the 15 June order, the Court considered whether a Cabinet Resolution coupled with a Ministerial Notice are capable of suspending South Africa’s duty to arrest a head of state against whom the ICC has issued arrest warrants for war crimes, crimes against humanity and genocide.

Importantly the court found as follows:

1. The actions of the Executive in allowing President Bashir to leave the country on 15 June constitute a clear violation of the 14 June court order.

2. Neither the Immunities Act, in line with ‘the June Agreement’, nor his status as a head of state according to the General Convention on the Privileges and Immunities of the Organisation of African Unity (OAU), confer immunity on President Bashir.

3. The Rome Statute expressly provides that heads of state do not enjoy immunity under customary international law.

4. Similarly, the Implementation Act states that immunity which would otherwise have been attached to Al-Bashir as a head of state is excluded or waived in respect of crimes and obligations under the Rome Statute.

5. The Implementation Act which was domesticated, versus the OAU Convention which was not, represents a clear decision by the Legislature not to confer blanket immunity on AU bodies, meetings and officials that attend them.

6. Decisions of the AU cannot trump South Africa’s obligations under the Rome Statute.

7. “The Rome Statute gives effect to international human rights law and enables the prosecution of customary international law crimes. As such, its provisions enjoy

pre-eminence in our constitutional regime. Moreover, it has been domestically enacted. Its binding status is clear.”

8.  “The Respondent’s reliance on these documents [the Cabinet Resolution and Ministerial Notice] is therefore ill-advised and ill-founded. They could not possibly “trump” the international agreement, the Rome Statute i.e. and the subsequent Implementation Act. In any event the Implementation Act enjoys legislative authority, having passed through Parliament, and it cannot be displaced by a notice promulgated by a Minister nor by a Cabinet decision.”

Importantly, the South Africa government, in allowing Al-Bashir to esape, violated the separation of power principle, by defying both a law made by the legislative branch and a ruling by the judicial branch of government.

Configuration of the Judicial Services Commission

In light of the ANC’s continuing cadre deployment policy, it is imperative that appointments to the judiciary are safeguarded. Such appointments are of vital importance as they impact how the rule of law is maintained, and how the values enshrined in the Constitution are not only secured against erosion but also promoted. To this end, and in recognition of the principle of the separation of powers, nothing less than an independent and qualified judiciary will ensure the continuation of our constitutional democracy.

The JSC, as the principle body involved with the selection of judges, despite the President’s final decision making powers in the appointment process, must in itself function so as to promote the selection of suitable legal practitioners to the bench. Selecting those responsible for interpreting the Constitution and upholding the framework of rights and responsibilities within which South Africa functions is one of the most essential elements in protecting our freedoms.

Given its present configuration, care must be taken in preventing the judicial appointment process from being sullied by politicisation and crucially, selection to the bench must primarily involve an enquiry into both one’s formal training and level of experience in determining whether a person is a fit and proper candidate to be appointed.

Unfortunately the current ANC-loaded JSC has made the system very vulnerable to abuse, and to the selection of politically connected cadres. In many ways the JSC, short of protecting the judiciary from political appointees, in fact serves as a vehicle to legitimate ANC choices.

All South Africans should have no doubt that if they were to appear in court on trumped-up charges that the judge would evaluate the evidence fairly and impartially, with full knowledge of the law based on thorough experience. This would ensure that justice is done and that no political vendettas could sway the outcome.

Currently, the JSC comprises 23 members (and occasionally 25, when premiers and judges president sit in on specific matters). This number is made up of the Chief Justice, the President of the Supreme Court of Appeal, a Judge President, a cabinet member (Justice), two practising advocates, two practising attorneys, one teacher of law, six members of the National Assembly (three from opposition parties), four members of the National Council Of Provinces (NCOP) and four people designated by the President.

Under presidents Mandela and Mbeki, the NCOP members were traditionally split between the ANC and opposition parties, adhering to the notion of proportional representation. In 2009, the single DA member of the NCOP was removed and replaced by an ANC member, which meant that 12 of the 23 were ANC politicians or appointees, giving the ANC a voting majority.

This time round, the ANC rejected all nominations from other parties and deployed four of their own NCOP members to the Commission. The result is now a dangerously ANC-heavy JSC. This paves the way for undisguised politically-driven cadre deployment, despite the presence of the country’s most eminent jurists.

In the fourth Parliament, now retired DA MP Dene Smuts introduced a Private Member’s Bill in Parliament with Constitutional amendments to the way Judges are selected. This bill was unsurprisingly blocked by the ANC.

Recommendations

The DA will now reintroduce this Bill so as to continue to push for changes which would see the JSC shrunk to a size at which it can function properly. This would be achieved by cutting in half each of the categories directly elected (National Assembly and NCOP), and limiting the participation of the four Presidential appointees to the selection of judges where the president does not have a discretion. The JSC’s lists of nominees for Constitutional Court judges would also have to include three names more than the number of places to be filled.

Further, the application of criteria in the appointment of judges must be treated as part of a two stage process – with the consideration of broad representivity as to race and gender being considered after the establishment of whether the candidate is qualified for the post. This is similar, for instance, to the process required for the appointment of the heads of the Chapter Nine Institutions.

Chapter 9 institutions

Chapter 9 institutions are intrinsic to the founding framework of our constitutional democracy as they were designed to ensure that the rights of South Africans were not confined to pages of the Constitution, but were actively realised, promoted and entrenched. In September 2006 the National Assembly appointed a multi-party ad hoc committee to review the Chapter 9 and associated institutions at the request of the Executive. The report that followed this review became known as the Asmal Report.

The Asmal Report describes the purpose of Chapter 9 institutions as follows:

“The object was the complete transformation of our society from a culture that was oppressive, secretive and profoundly disrespectful of basic human rights into a human rights based culture in which the human dignity of all is both respected and celebrated. In order to achieve this goal, a range of institutions were established in the Constitution itself and in national legislation, the purpose of which was to strengthen constitutional democracy in South Africa by the active promotion of a culture of human rights and the protection, development and attainment of those rights, including monitoring and assessing their implementation and observance.”

It is exactly because these institutions have a central role to play in ensuring the freedoms of all South Africans, and in playing a watchdog role for our democracy, that their independence needs to be jealously guarded against political interference and cadre deployment.

Office of the Public Protector

A look at the effectiveness of office of the Public Protector since 1995 provides an excellent snapshot of the impact that cadre deployment can have on key South African institutions.

Selby Baqwa

For the most part, Selby Baqwa’s term in office was viewed in a positive light. Early complaints related to pension matters, procurement issues and proceedings before the Truth and Reconciliation Commission. Baqwa noted in the Public Protector’s 1996 half yearly report that state institutions were responding well to the presence and role of the Public Protector and that he experienced excellent levels of cooperation from the outset.

He also observed that valuable lessons came out of the first few months of operations about how citizens could be seen to hold the state accountable for any maladministration and also how the Public Protector operated as an instrument to enforce such accountability.

During Baqwa’s term in office, the majority of complaints received by the office were related to ‘bread and butter’ issues such as social grants, delays in payments thereof, and other delays in service delivery targets. Investigations also focused on the Constitutional duty of the state to render health care, service standards by public servants, the administration of criminal case appeals, compensation for injuries sustained on duty and the protection of whistle-blowers.

It was clear that the Public Protector’s office was putting real effort into establishing itself as an accessible, credible institution with systemic investigations into nepotism within government, as well as its own investigations, such as one into alleged improprieties by the then Director-General of Home Affairs.

Lawrence Mushwana

The appointment of Lawrence Mushwana to the position of Public Protector in October 2002 ushered in a different era of operation for the institution. Mushwana’s appointment was a clear example of the ANC’s cadre deployment policy. His tenure saw the blatant abuse of the office of the Public Protector to block investigations or serious inquiries into irregularities in government activities. Mushwana followed the cadre deployment policy by the book and ensured that his position protected the ANC from the people instead of protecting the people from abuses by government.

Important instances of this abuse of office include:

- His finding in support of Zuma (then Deputy President) after he complained about the Scorpion’s investigation into his involvement in the Arms Deal;

- his finding in 2006 that then Deputy President Phumzile Mlambo-Ngcuka’s R700 000 Christmas joyride to the United Arab Emirates was justified as an ‘obligation’ for her own safety, adding that there was nothing unethical or improper in a Deputy President having the travel bill funded from the public purse; and

- his 2006 finding which cleared then Social Development Minister, Zola Skweyiya, of wrong- doing in awarding a large government contract to a company partly owned by Imvume – an oil company implicated in the Oilgate scandal – and that company’s interest-free loan to Skweyiya’s wife. Instead he found Skweyiya guilty only of non-disclosure of the loan to Parliament and imposed a sanction requiring the Minister to apologise to Parliament. This report was eventually set aside by a High Court ruling, later upheld by the Supreme Court of Appeal, which went so far as to rebuke Mushwana’s report as “so scant as not to be an investigation at all”.

Mushwana’s term in office as the Public Protector was marred at first by controversy and by the end in scandal in his vociferous attempts to make sure that the ANC government escaped its responsibility and opportunities for them to be held accountable for their actions. Mushwana’s strong party political affiliations as an ANC MP, and later Deputy Speaker of the NCOP, prior to his nomination and appointment to the position of Public Protector, and his subsequent failures while in the position, are a clear example of the ill effects of cadre deployment.

Thuli Madonsela

The first distinction between Mushwana and Madonsela stem from the fact that Madonsela turned down a nomination from the ANC to serve as an MP after 1994. Instead, she chose to participate in the process of writing South Africa’s post-liberation, democratic Constitution. Directly prior to her appointment to the office of the Public Protector, Madonsela served as a full-time member of the South African Law Reform Commission.

Her term thus far has been characterized by an earnest adherence to the maxim of performing her duties “without fear or favour”. However, what has become clear in the past few years is the direct attempts of government to both undermine the office of the Public Protector and to diminish the effectiveness of the office.

The ANC has made repeated and vicious attacks on Madonsela while in office as the Public Protector. President Zuma has also repeatedly failed to implement her findings expediently, and in recent cases, at all. Examples of this include:

President Zuma’s delay of several months in firing National Police Commissioner Bheki Cele and Public Works Minister Gwen Mahlangu-Nkabinde following Madonsela’s remedial action. It is arguable that President Zuma only implemented the Public Protector’s remedial action because of the enormous public pressure to do so, not necessarily because he felt he had to respect the rule of law and the stipulations of the Public Protector Act. This is especially true considering the fact that only a few years after these scandals, Bheki Cele now enjoys a high-profile both within the ANC’s leadership and Zuma’s Cabinet as the Deputy Minister of Agriculture, Forestry and Fisheries.

President Zuma summarily ignored the Public Protector’s report into the fisheries tender scandal involving Sekunjalo for no reason. Ultimately, Tina Joematt-Petterson was re- appointed to the Cabinet as the Minister of Energy in June 2014.

Joematt-Petterson’s factually inaccurate remarks around the time of the investigation and the release of the report are also illustrative of attempts by government to undermine the Office of the Public Protector:

 She asserted that Public Protector Thuli Madonsela was “claiming powers she does not have” and that her role was really nothing more than a kind of “mediator”.

 “She has claimed powers that she does not really have, including the power to set deadlines for answers to her letters and that I must submit a plan for implementation of her report.”

 “I was informed that, in terms of legislation, her powers are limited to mediation, conciliation and giving advice to complainants where, in the circumstances, it is required.”

The Minister of Communications, Faith Muthambi, summarily ignored the remedial actions in Madonsela’s report into South African Broadcasting Corporation (SABC) acting COO, Hlaudi Motsoeneng’s matric certificate/qualifications scandal which called for a disciplinary hearing and procedures to be instituted against Motsoeneng.

The most recent case in point is the current saga surrounding the security upgrades to President Zuma’s private home in Nkandla. Madonsela investigated President Zuma on a request by then DA Parliamentary Leader, Lindiwe Mazibuko, after evidence of gross overspending of taxpayers’ money on Zuma’s private Nkandla residence came to light.

Madonsela concluded that Zuma had unduly benefitted. She found that National Treasury, in conjunction with the SAPS, should determine a reasonable amount for Zuma to repay the state.

President Zuma then instructed the Minister of Police to make this determination, which the DA has contended is unlawful. The Police Minister essentially concluded that Zuma did not unduly benefit and thus did not need to repay any money to the State.

It is critical to reiterate that if President Zuma disagreed with the Public Protector’s report and the remedial action therein expressed it is for him to approach the courts by way of a review application to have her remedial actions set aside, not to commission a member of his Cabinet to contradict it and thereby substituting his own compromised findings in place of the Public Protector’s.

To this end President Zuma commissioned a report that is in contravention of due process and is therefore unconstitutional in the first instance. The ad hoc committee should have set aside the Zuma-Nhleko report on the grounds that its very existence is legally untenable and therefore irrational. Instead the report was adopted by the committee, and subsequently by the National Assembly. The DA has since referred the matter to the courts.

President Zuma, Minister Nhleko and the ANC at large have treated the Public Protector with disdain in an attempt to diminish the authority of her office.

The Presidency’s complete disregard and the Executive’s wilful attempts to undermine the Public Protector’s findings and remedial actions is possibly the most worrying example of how the government has tried to delegitimize and strip the office of its legally mandated powers and authority.

More recently, Madonsela has come out in criticism of the current mechanisms for Presidential oversight and has called for the Executive Ethics Act to be amended to ensure that the President is not responsible for implementing disciplinary actions against himself. Madonsela is also currently appealing a judgement in the Western Cape High Court which compared her powers to those of the UK ombudsman.

The DA is also awaiting our review application before the SCA in the SABC matter that will, in part, provide greater legal clarity on the powers of the Public Protector and how the Chapter 9 institution’s remedial action is to be engaged.

The Independent Electoral Commission

The Independent Electoral Commission (IEC) is a permanent body established by the Constitution to promote and safeguard democracy in South Africa. It is a publicly funded body and while it is accountable to Parliament, it is independent of government. The IEC, which was established in 1993, has five full-time commissioners, appointed by the President, whose brief is to deliver regular, free and fair elections at all levels of government – national, provincial and local. In terms of the Electoral Commission Act of 1996, the IEC has to compile and maintain the voters' roll and it is responsible for counting, verifying and declaring the results of an election, which must be done within seven days of the close of the election.

The current Commissioners are:

Mr IT (Terry) Tselana – Vice Chairperson

Judge GM (Thami) Makhanya – Commissioner

Reverend BB (Bongani) Finca – Commissioner

The position of Chairperson and that of a third commissioner are currently vacant and in the process of being selected.

The IEC is responsible for all the logistics of running elections, including setting up voting stations in the most remote rural areas, installing telecommunications facilities and setting up a computer network to link all voting stations. More important are the preparations that the commission puts into the holding of elections. Thousands of officials – including presiding officers, counting officers, volunteers and monitors – are trained for specific tasks and posted at voting stations on election days to carry out these tasks.

It is important to note that since the advent of democracy and democratic voting procedures in South Africa, the IEC has successfully facilitated five national elections and four local/municipal elections. All of these were declared free and fair and there were no accusations of irregularities or voting-rigging.

However, the IEC has not been without issue and several instances have been cause for specific concern for the DA.

On 3 March 2015, the ANC in the Portfolio Committee for Home Affairs in the National Assembly used their majority to push through the nomination of Glenton Vuma Mashinini as an IEC Commissioner. Mashinini was at the time of the nomination an employee in the Office of the President as a Special Projects Adviser making his independence highly questionable for this position. In many ways his nomination can be seen as a prime example of cadre deployment. This also opens up the path to Mashinini to become Chairperson of the IEC as that position is still currently vacant and many have said that he has been tipped for the position.

Parliament is currently responsible for recommending a candidate for the President to appoint as Commissioner, preceded by a short-listing process conducted by the Chief Justice, heads of the South African Human Rights Commission (SAHRC), Commission for Gender Equality (CGE) and the NDPP. Both the Home Affairs Portfolio Committee process of recommending a candidate from the shortlist, and the simple majority vote in the National Assembly to resolve on this, are open to the ANC using their majority to select a preferred candidate and to implement their policy of cadre deployment.

With a simple majority vote in the National Assembly, at this point, the ANC is able to shut down all debate and meaningful deliberation on candidates in favour of or against any particular candidate.

Recommendations

Currently, the budgets of the various Chapter 9 institutions are located within the budget appropriations of various national government departments. For example, the budgets of the SAHRC and the Public Protector can be found within the Budget Vote of the Department of Justice and Correctional Services.

However, what has become clear in recent years is that the current location of the Chapter 9 budgets within the hands of the Executive means that there is a threat of abuse in that the Executive could use this as a mechanism to deliberately constrain the Chapter 9 institutions from properly fulfilling their Constitutional mandates through the provision of inadequate funds.

Further, in many instances these institutions have complained that they have not been able to defend their budget submissions and seldom receive the allocations they request.

The Asmal Report found that:

“The location of the budgets of these institutions within the budget allocations of specific government departments impacts negatively on the perceived independence of the institutions and creates a false impression that the institutions are accountable to the respective government departments for the use of their finances.”

The DA concurs with the report’s recommendation that the budgets of all bodies identified by Chapter 9 of the Constitution should be part of Parliament’s Budget Vote.

This is justified on the grounds that Parliament maintains oversight over these bodies and thus Parliament’s Budget Vote would be most appropriate. It is vitally important to our democracy that the independence of these bodies in not negatively affected in any way and similarly that their ability to fulfil their constitutional mandates is not inhibited.

This is especially true for the Public Protector’s office as the institution is specifically mandated to investigate the administrative wrongdoings of the Executive. It therefore cannot stand that the budget and thus capacitation of the office is left up to the Executive to decide.

The DA believes that further from this, the Rules Committee of Parliament should establish a Standing Committee on Institutions Supporting Constitutional Democracy. This would a separate committee of Parliament to oversee the Chapter 9 institutions.

Following from this proposal, the composition of this committee should also be slightly different in that the ruling party in government would have six members and opposition parties would make up the other five members of the committee (including the chairpersonship). This is similar to the composition of the Standing Committee on Public Accounts that stipulates that the chairperson should be elected from an opposition party. The majority party in government would still have the majority of seats but with the chairperson position set up in this way, the debate and level of engagement within this committee would still be high.

This can be seen as an interpretation and application of Section 181(3) of the Constitution: “Other organs of state, through legislative and other measures, must assist and protect these [Chapter 9] institutions to ensure the independence, impartiality, dignity and effectiveness of these institutions”.

Specifically, while the IEC has not as of yet experienced a significant breakdown in function or its ability to carry out its duties in the way that we have seen with the NPA or Special Investigating Unit (SIU), the DA believes that there is a need to firewall the institutional independence of the IEC from cadre deployment such as Mashinini’s recent appointment to the body.

As such the DA believes that, while the Home Affairs portfolio committee should continue to shortlist and nominate the candidates for possible appointment to the body, the recommendation of the portfolio committee should require the support of at least 60% of the members in the National Assembly prior to the recommendation being sent to the President.

This would help to prevent the present situation where the ANC uses their majority in the House to push through nominations and would bring this appointment process in line with the appointment processes of the Public Protector and the Auditor-General.

The South African Revenue Service (SARS) is an important institution in South Africa. The SARS must have the ability to collect tax revenues without fear or favour. This is important as these taxes are the source of funds for the South African Revenue Fund – from which substantial portions of government expenditure is drawn, providing a large basis for government to have the ability to build schools, staff hospitals and pay social grants. It is a crisis when the ability of SARS to fulfil its mandate becomes compromised in any way.

During the first two decades of our democracy, SARS built up a formidable reputation for competence and incorruptibility. It has been lauded by some as one of the most effective tax collection agencies in the world, earning runner-up status in “innovative technology” for their e-filing system at the Adobe Max Awards in 2008. Although it should be noted that while SARS has been very good at extracting taxes from citizens operating in the formal sector of the economy, the same cannot necessarily be said of its effectiveness in extracting taxes from the informal sector. Nonetheless, until fairly recently it has operating without fear of favour and with a high reputation.

In the ultimate attempt to shield himself from all forms of accountability, Zuma, just eight months into his second term of office started to pull apart the SARS. This is most likely as a result of two key issues currently under investigation by SARS – Zuma’s tax bill for Nkandla, which the DA has estimated will amount to some R16,8 million, and the ANC’s R41 million customs duty bill for a consignment of election T-shirts that it imported from China.

Jacob Zuma’s conflict with SARS began over a dispute argued by Zuma in his original 2008 affidavit to the Pietermaritzburg High Court as to whether tax evasion charges should be added to the 783 charges of fraud, corruption and racketeering that the NPA was drawing up at the time (and which the DA is still fighting to have reinstated). President Zuma, through cadre deployment at the NPA has done all in his power to avoid these criminal charges, but now, facing a potential tax bill for the upgrades to his private home at Nkandla, has turned his attention to the SARS.

The crisis began to surface in February 2014 when Ms Belinda Walter disclosed her romantic relationship with Mr Johan van Loggerenberg, SARS Group Executive: Projects, Evidence Management and Technical Support, as well as giving information, purportedly shared during their relationship, to members of the media. This information included the existence of a covert investigative unit within the SARS, allegedly operating without a legal mandate.

In September 2014, following a formal complaint lodged against Mr Van Loggerenberg by Ms Walter, SARS’s then-Acting Commissioner Ivan Pillay appointed an external panel, headed by Adv. Muzi Sikhakhane, to investigate allegations of impropriety against Van Loggerenberg.

Although the Sikhakhane panel’s terms of reference specifically focused on allegations of impropriety against Mr Van Loggerenberg, the panel appears to have covered wider questions of governance and legal compliance at SARS during the investigation.

Accordingly, the panel investigated the origins and modis opperandi of an alleged “rogue unit” within the SARS and concluded the following:

SARS established a study group during 2004 – 2005 to eliminate the “illicit economy”. SARS also initiated formal interactions with the SAPS, Military Defence and the erstwhile National Intelligence Agency (NIA) to establish a specialised investigative unit, located within and managed by the NIA, to deal with tax and customs issues, in particular.

With the approval of the then-Minister of Finance, Trevor Manual, and the then-SARS Commissioner, Pravin Gordhan, a unit within SARS was established in 2007 and was given investigative capacity.

The unit – first called the Special Projects Unit, then the National Research Group (NRG) – initially comprised some 23 to 26 members who were primarily drawn from the intelligence community. This unit commenced limited intelligence work in 2007 that mainly involved desk-top research and physical surveillance of those suspected of participating in the illicit economy.

However, SARS and the NIA were unable to formalise the creation of the Special Projects/NRG unit. Consequently this unit operated without the requisite legal mandate to investigate organised crime.

The Special Projects/NRG unit was disbanded in 2009. Six members of this unit who had an intelligence and law enforcement background were retained by SARS. Mr Van Loggerenberg assumed leadership of a new unit, known as the High Risk Investigation Unit (HRIU) that was staffed by the six members retained from the Special Projects/NRG unit that had been disbanded. It was generally accepted based on testimony received by the Sikhakhane panel that neither the NRG nor the HRIU units had at any stage possessed the necessary equipment to carry out electronic surveillance or interception.

The HRIU is believed to have remained operational until being exposed by the Sunday Times on the 12th of October 2014.

The current crisis at SARS began shortly after the media announced in September 2014 that Tom Monyane had been appointed to replace then acting Commissioner, Ivan Pillay. Monyane, a deployed cadre, then suspended Pillay and SARS’s Chief Strategy officer, Peter Richer. After taking their suspensions to the Labour court, both Pillay and Richer eventually resigned following rumoured golden handshakes close to R10 million each.

The findings and recommendations of the Sikhakhane report offer the following: a rogue investigative unit of former intelligence officers has been operating within SARS since 2007, largely without the Commissioner or relevant Minister(s) exercising oversight or having explicit knowledge of their specific activities. The unit is presented as autonomous and operating outside SARS’s jurisdiction, both physically and legally. Mr Pillay is quoted as categorically denying that unlawful conduct was authorised by SARS top management. Media reports, however, have questioned claims that the unit operated without the knowledge of senior managers in the agency and/or state officials. Indeed, some reports have suggested that the unit has been subject to political manipulation and/or undue influence from the tobacco industry. In testimony to the Sikhakhane report, alleged members of the unit claimed to have been instructed to pose as drivers to political figures such as Julius Malema and Fikile Mbalula, insinuating political interference.

According to news reports, as many as six separate investigations have been launched into allegations of a rogue unit operating within SARS. Previous and/or related investigations apparently include:

The Kanyane Panel, an internal probe launched by SARS on 11 June 2014, which did not find “any wrongdoing or breaches of the law on Mr. Van Loggerenberg’s part”, but did recommend further investigation “to safeguard the integrity of SARS”. The findings of the investigation was neither considered nor contained in the Sikhakhane Report.

In 2010, the State Security Agency (SSA), successor to the NIA, investigated the unit’s activities after receiving a complaint, purportedly from a former SARS employee.

SARS officials are believed to have written to former police commissioner, Bheki Cele, sometime during 2010 to request an investigation into the unit.

A probe, launched by the SSA in 2014, concluded in November of that year that, according to reports, criminal charges were recommended to Minister of State Security, David Mahlobo.

The Hawks are believed to be investigating a complaint against SARS relating to the unit.

Public Protector Thuli Madonsela is said to have received a formal complaint regarding events at SARS; Ms Madonsela reportedly informed SARS that an investigation into the unit was underway.

SARS Commissioner, Tom Monyane, announced on 5 December 2014 that he would initiate a forensic investigation to “ensure that the alleged unit and its activities cease to exist in its entirety”. The report, conducted by KPMG, was due in June 2015.

In addition, the Minister of Finance, Nhlanhla Nene, following consultation with the SARS Commissioner and the Minister of Justice and Correctional Services, Michael Masutha, appointed an advisory committee chaired by retired Judge Frank Kroon on 25 February 2015. Appointed in terms of section 11 of the SARS Act 34 of 1997, the committee’s primary task will be “to guide the direction of long-term strategy at SARS by ensuring that decisions about the revenue and customs authority’s operations, personnel, budget and technology support its long-term strategy and plans”.

Recommendations

The Sikhakhane Report has now been released, after much opposition by the ANC. The KPMG report is still to be made public, despite every attempt by the DA. What seems clear is that there is information which the ANC do not want us to know about. Given the fact that there are so many questions surrounding the SARS crisis, it is imperative that an inquiry, with broad ranging terms of reference, be instituted.

The DA thus believes that a judicial commission of inquiry should immediately be appointed. This recommendation is echoed by the Sikhakhane Report which states that “the Commissioner should recommend to the President that a judicial commission of enquiry with powers of compulsion in terms of section 3 of the Commissions Act 8 of 1947 should be appointed.”

The specific terms of reference should include, inter alia:

- an investigation into the particulars and nature of the unit’s covert activities, the extent its the funding and how it was funded;

- what knowledge senior SARS management, Government Ministers AND state officials had of its activities, if any;

- the legality of the suspension of Messrs Pillay and Richer;

- what knowledge intelligence agencies had of the unit’s activities and if they cooperated in the operations of the unit or with any of its members;

- whether the unit had been infiltrated, co-opted and/or influenced in any way by persons who are/were not employed by the State including SARS, specifically by persons and or entities who are/were elements involved in and/or connected with the trade of illicit tobacco or any other commodity or product; and

- whether the unit had influenced, in any way, any regular SARS investigations and/or settlements reached with parties previously or currently under investigation by SARS.

The Constitution, in terms of section 207(1), gives the President the power to appoint the National Police Commissioner. The National Commissioner’s job is to control and manage the police service in accordance with the national policing policy and the directions of the relevant Minister.

When analysing the most recent events surrounding the existing and previous National Police Commissioners it becomes clear that the position has become increasingly politicised and subject to cadre deployment. It is thus necessary to provide a firewall in the form of interventions in an effort to increase the independence of this position.

Jacki Selebi

In 2000, Jackie Selebi was appointed as National Commissioner of the SAPS by President Thabo Mbeki. Selebi did not come from the ranks of the SAPS. Selebi was a deployed cadre, having previously been elected as an ANC MP in 1994 and from 1995 to 1998 having served as the South African ambassador and permanent representative to the United Nations. In 1998 he was appointed Director-General of the Ministry of Foreign Affairs.

In September 2007 the NPA issued a warrant of arrest for Selebi for corruption, fraud, racketeering and defeating the ends of justice. At the time when the warrant was issued, Vusi Pikoli was the NDPP. After the charges were laid, Pikoli was suspended by President Mbeki.

The new acting NDPP, Mokotedi Mpshe, then dropped charges against Selebi, although on 12 January 2008 President Mbeki suspended Selebi by placing him on an “extended leave of absence”. After Mbeki’s defeat at Polokwane the charges were reinstated.

Selebi’s trial began on 8 April 2010 nearly two years after the charges were first laid. He was found guilty of corruption on 2 July 2010 and sentenced to 15 years in prison.

Bheki Cele

Subsequent to this, on 2 August 2009 President Jacob Zuma appointed Bheki Cele as National Police Commissioner. Cele also did not come from the ranks of the SAPS and was also an ANC cadre, having previously been the MEC for Transport, Community Safety and Liaison in KwaZulu- Natal.

Cele was suspended on 24 October 2011 pending an inquiry into the police building-lease scandal emanating from a report from the Public Protector.

Cele was eventually dismissed in December 2012 after a board of inquiry found him “unfit for office” and recommended his removal.

Riah Phiyega

On 12 June 2012 President Zuma appointed “General” Mangwashi Victoria “Riah” Phiyega as the new National Police Commissioner. Once again, Phiyega did not come from the ranks of the SAPS. According to her heavily edited CV presented to the Police Portfolio Committee, she had previously held various high profile positions with corporates, parastatals and NGOs. What Parliament was not told was that she failed to complete two previous five-year contracts for not possessing the administrative skills she was much vaunted for in her bid to become the National Police Commissioner.

At the end of March 2015, then NDPP, Mxolisi Nxasana, said that Phiyega’s intervention in the case against deputy NDPP, Nomgcobo Jiba, was worrying. Nxasana told journalists that it seems that Jiba “is being protected at all costs”.

The findings of the Marikana Commission of Inquiry were damning, and it has been advised that a Commission of Inquiry must be instituted to determine her fitness for office. It is clear that Phiyega

played a pivotal role in the events that lead to the eventual Marikana Massacre. The DA has forwarded a substantial document of evidence to the President in this regard and has called for a Commission of Inquiry into Phiyega’s fitness to hold office, with a view to having her contact terminated effective at the completion of the Inquiry’s life.

It is important to note that neither Phiyega, Cele nor Selebi had any policing experience when they assumed the position as National Police Commissioner.

Recommendation

To ensure that we achieve the vision of a truly free and fair society in which every South African is treated equally before the law, the DA believes that it is imperative to bring an end to the possibility of the National Police Commissioner being a political appointee without any policing experience.

People should be appointed to leadership positions in the SAPS on the basis of their abilities and qualifications.

In a document from 2009 entitled “SAPS in Crisis - The DA's Plan to fix the police service” it was stated that political deployments within the Police Service are damaging for a number of reasons:

Such individuals are rarely trained in police work, and have as their objective the fulfilment of certain political tasks rather than active police work. Facing the levels of crime that we do in South Africa, political deployments need to stop immediately. We need to get trained experts in to deal with what has become a national crisis.

The DA believes that in order to end cadre deployment to the position of National Police Commissioner a constitutional amendment must be made to ensure that the National Police Commissioner is selected by a multi-party committee of Parliament, with the President performing only the formal act of appointment.

Inspector-General of Intelligence

The Inspector-General of Intelligence is responsible for monitoring the intelligence services compliance with the Constitution, national legislation and policy on intelligence and counter- intelligence. The Inspector-General is also responsible for investigating complaints of alleged maladministration, abuse of power and transgressions of the Constitution, national legislation and policy on intelligence and counter-intelligence by the intelligence services.

The Inspector-General of Intelligence has wide ranging powers to conduct these investigations and can literally go through the bottom draws of Crime Intelligence, Defence Intelligence and the SSA.

It is thus imperative that the Inspector-General for Intelligence is impartial, independent and willing to perform their functions without fear or favour. Most importantly the Inspector-General cannot be a cadre deployed to protect the ANC and President Zuma.

Most recently the issue of cadre deployment to the position of Inspector-General of Intelligence came the fore with the ANC’s attempt to instate Cecil Burgess to replace Faith Radebe.

Aside from the fact that Burgess has a proven track record of not being impartial and of favouring secrecy over transparency, he is a known ANC cadre. Burgess is a card-carrying ANC member, having represented the ANC as a MP and having chaired the Joint Standing Committee of Intelligence. Most notably, Burgess chaired the parliamentary committee which greased the Secrecy Bill through Parliament and the committee that produced the whitewashed Nkandla report.

The DA objected to his nomination to the position and to the attempts of the ANC to close the committee meetings when the candidates to the position were shortlisted. The ANC could not gain the required two-thirds majority in Parliament to nominate Burgess to the position, but the fact that they were willing to try raises the need to firewall the independence of this position from future cadre deployment.

Recommendation

The DA believes that it is time to seriously consider amending the relevant legislation to provide that the Inspector-General of Intelligence must be a retired judge who is able to serve impartially and independently in the position.

In a constitutional democracy it is imperative that the intelligence services abide by the constitution and are scrutinized by the Inspector-General of Intelligence. That is why is it is important that the Inspector-General of Intelligence be impartial and act without fear and favour.