Thoshan Panday the latest in Zuma Inc’s stranglehold on the criminal justice system 

This speech extract was delivered by the DA’s Shadow Minister of Justice, Adv Glynnis Breytenbach MP, during an address at the Current Affairs and Media Forum in Somerset West, Western Cape.

A lot has happened in South Africa since we last spoke, some of it wonderful, but unfortunately, most of it not so wonderful.  We are a country in deep trouble. We have a government that lacks direction and demonstrates an inability to grapple with the important issues. This is largely because there is no political will to deal with the problems we face.

We face a dysfunctional criminal justice system, corruption is rampant and institutionalized, unemployment is soaring daily and over 35% of South Africans are unemployed.  

Our economy is growing at a snail’s pace, with no real prospect of it improving materially in the foreseeable future under the current dispensation.

The reason for this is largely the collapse of institutions and political will meant to boost and support a constitutional democracy, due to systemic corruption, political patronage and cadre deployment on an unsustainable scale.

Before the President started his noxious efforts to destroy the National Prosecuting Authority (NPA), the prosecutorial services of this country were better than they are now. The fact that this may no longer be so is entirely thanks to President Zuma and the ANC in government. He has destroyed an institution in order to shield himself and his cronies – and it is clear that he intends to continue to do so until there is no state institution left that might be in a position to investigate or prosecute himself and his friends.

Upon reflection of how cadre deployment and overreach by the Executive has damaged the functioning of these institutions, the DA is proposing a number of ways in which their independence and effectiveness can be restored, safeguarded and firewalled.

These institutions can only be properly protected through constitutional and legislative amendments if we are to arrest the relentless assault Zuma Inc inflicts on our justice system.

Just this morning, a report in the Mail & Guardian revealed the levels to which our Criminal Justice System has sunk under Zuma Inc’s death grip. 

A quick glance at what is happening in the South African Police Service (SAPS) and in the NPA– particularly in KwaZulu-Natal (KZN) is but a microcosm of the problems facing us right now.

In 2010 a police investigation was opened into a R60 million tender scam, centred around Umhlanga businessman and business partner of Zuma’s son, one Thoshan Panday. The KZN Police Commissioner, Mmamonnye Ngobeni, attempted to shut the investigation down just four days after its launch. Three weeks later, Ngobeni’s husband held a birthday party, allegedly paid for by Mr Panday to the extent of R20 000.

The Hawks in KZN started an investigation into the activities of Panday. Instead of an investigation by the prosecuting authority to ensure that the corrupt activity was prosecuted to the full extent, this is what transpired: The then acting National Director of Public Prosecutions (NDPP), Nomgcobo Jiba, dispatched her acolyte in the NPA’s KZN branch to withdraw the charges against Panday.

In the midst of all this, charges were instead brought against KZN Hawks Boss, Johan Booysen who dared to investigate these dubious dealings. The reasons for this are obvious and are almost certainly linked to the protection of the President’s son at the expense of this critical crime-fighting body. 

These charges were unduly authorised by the then acting NDPP Jiba. In throwing out the trumped up charges, the Court found that Jiba had lied under oath to the Court. Yet, charges against Jiba were withdrawn – and she was rewarded with a promotion. Which is why the DA is currently in the process of taking on review her promotion and, in fact, her appointment, which we contend is wholly irrational. 

The departed Hawks Boss, Anwa Dramat, in a show of independence and grit, called for the docket with a view to reinstating the charges against Panday. At the same time the Executive Director of the Independent Police Investigative Directorate (IPID), Robert McBride, also launched an investigation into the Panday affair and the victimisation of Booysen. 

What happened next is astonishing, if not predictable, and demonstrates how the ANC government, under President Zuma’s baton, is desperately clutching onto power to ensure that all those close to him are protected to the detriment of our most critical state institutions.

By December 2014, Dramat was suspended and is now gone. McBride was suspended by the end of March 2015. In April 2015 the former NDPP, Mxolisi Nxasana, wrote to Panday’s lawyers informing them that he was reviewing the decision to withdraw charges against Panday, and, by May, Nxasana had been pushed out with a R17 million golden handshake at taxpayers’ expense.

This is what made it critical for the DA to propose a series of recommendations to firewall our critical institutions.

To defend our hard-won democracy, we need to reconsider the power of the Executive and correct the current imbalance by empowering Parliament with increased checks and balances.

To this end, the DA is proposing a number of steps to prevent the further erosion of our democratic order as detailed in our paper Defending our Democracy: The DA's Plan to Firewall Key Institutions.

The document covers several institutions, including the NPA, the Judiciary and Judicial Services Commission (JSC), the National Police Commissioner and the SAPS.

Prosecution in South Africa was intended to be free, fair and unadulterated by politics. Sadly, it is now ruled by politics. A gutless and politically expedient President and ANC in government have shown wanton disinterest in arresting the abuse of this vital institution. It is for these reasons that the DA will be reintroducing a Constitutional Amendment Bill this year. This Bill will seek to amend section 179 of the Constitution by addressing the appointment procedure of the National Director of Public Prosecutions. 

Other recommendations include:

- Decreasing the size of the political component of the JSC to increase its independence, and amending the process of appointing judges to make a determination of the fitness of candidates to hold office the primary consideration.

- Amending the process to appoint the National Police Commissioner (NPC) as the Head of the SAPS to ensure selection by a multi-party committee of Parliament, with the President performing only the formal act of appointment.

It is my pledge, here today, on behalf of the Democratic Alliance to do everything in our power to ensure that state institutions like the National Prosecuting Authority are not abused without consequence. 

Our criminal justice system depends on it.

Thank you.

Issued by Glynnis Breytenbach, DA Shadow Minister of Justice, 2 October 2015