Under South Africa’s fifth administration, led by former president Jacob Zuma, there was immense political manipulation of the criminal justice agencies characterised by the administration’s appointment of individuals who were manifestly not suited for senior leadership positions.
These dubious appointees, as a token of their appreciation, then allegedly returned the favour through unlawfully withdrawing corruption charges against prominent figures associated with the then president or ensuring that they hindered investigations or charges being laid against Zuma and his executive.
This formed part of the joint submission that has been handed over to evidence leaders of the Judicial Commission of Inquiry into allegations of State Capture by civil society organisations Corruption Watch and The Institute for Security Studies.
As per the detects of the commission, once an individual has expressed a willingness to make a submission before the commission and has supplied the evidence leaders with a sworn affidavit, the evidence team is duty bound to issue a notice to any implicated parties.
Implicated parties have a stipulated amount of time within which from the date of issue to inform the commission on whether they wish to challenge or cross examine said individual or organisation before they make their oral presentations before the Zondo commission.
It still remains unclear when the two civil society organisations will be giving their oral testimony before the commission.
However, the scope of their submission as stated in the affidavit – which was also made available to City Press – bordered “on state capture and the political manipulation of criminal justice agencies, in particular by the executive under the administration of former president Jacob Zuma”.
The key criminal justice agencies they singled out were the South African Police Service (SAPS), in particular its crime intelligence division; the Directorate for Priority Crime Investigation (the Hawks); the National Prosecuting Authority (NPA); and to a lesser degree, the Independent Police Investigative Directorate (Ipid).
The affidavit make it clear that, even though the two civil society organisations will mainly focus on the Zuma administration, it was “not to say that such manipulation was not evident during former president Thabo Mbeki era” instead, it was necessitated by “the persistence and aggression with which it was pursued under Zuma” hence the “special attention”.
“Senior appointments were made by the executive that were apparently intended to ensure that the powers of these agencies were exercised in a selective manner favourable to the executive. This was done notwithstanding the legislative provisions and court judgments that have sought to uphold the independence of these agencies,” reads the joint submissions.
“The two civil society organisations argued that “implicit within the Constitution is the assumption that the executive will exercise these powers in good faith in order to appoint people who are likely to discharge their responsibilities effectively in line with the Constitution.
However, notably during the Zuma era, a number of senior appointments were made by the executive that were apparently intended to ensure that the powers of these agencies were exercised in a selective manner favourable to the executive.”
In their submissions, the two civil society organisations also questioned the appointments of individuals into criminal justice agencies from as far back as 2009 where evidently blurry and did not adhered entirely to the legislative provisions and court judgments that have sought to uphold the independence of these agencies.
In the affidavit, their case in point was the questionable appointment of Menzi Simelane as national director of public prosecutions in November 2009.
“The litigation was initiated in December 2009 and eventually culminated in a judgment of the Supreme Court of Appeal [in December 2011] finding that the appointment of Simelane was unconstitutional and invalid. This was confirmed by the Constitutional Court on October 5 2012. The Constitutional Court judgment revolved in part around the question of whether Zuma had applied his mind properly when making the appointment or inappropriately ignored information pertaining to Simelane’s ‘credibility, honesty, integrity and conscientiousness’,” reads the submissions.
Questions on Simelane’s integrity had been raised by various formal bodies included the Ginwala Commission of Inquiry – established to look into the fitness for office of Vusi Pikoli as national director of public prosecutions – and a subsequent report of the public service commission prior to Zuma’s appointment of the former.
Also under scrutiny in the pair’s submission was the September 2015 appointment of Berning Ntlemeza as head of the Hawks.
The affidavit states that this undeserving appointment was exposed as such “in a judgment of the Supreme Court of Appeal on June 9 2017 in which the court dismissed an appeal against a March 2017 judgment of the Gauteng high court setting aside the appointment of Ntlemeza.”
“Material to these judgments were a series of decisions by the Gauteng high court, given in 2015 prior to Ntlemeza’s appointment. These related to a dispute over Ntlemeza’s decision, taken in January 2015 while he was still serving as acting head of the Hawks, to suspend the Gauteng head of the Hawks, Shadrack Sibiya.”
In its judgment the court had repeatedly raised concerns over Ntlemeza’s integrity as well as that he had acted in a “contemptuous manner” towards the court.
The November 2013 appointment by then police minister Nathi Mthethwa of Robert McBride as the new head of Ipid was also questioned.
Corruption Watch and The Institute for Security Studies interrogated how McBride’s eligibility was assessed and the subsequent legal provisions regarding the renewal of the contract of the Ipid executive director which dominated the news in 2019 when Police Minister Bheki Cele challenged the renewal of the former’s leading to his dismissal.
“McBride has contested Cele’s decision, asserting that the minister does not have the authority to make this decision unilaterally and that the decision has to be reviewed, and may be overturned, by the parliamentary committee.”
“As of mid-February 2019 the parties had agreed that Cele’s decision not to renew McBride’s term is a ‘preliminary decision that must still be confirmed or rejected by the portfolio committee on police’. A process had been established to resolve the issue by the end of February 2019,” read the affidavit.
Controversial acting appointments
Not only permanent appointments where on the spotlight during the submission, the acting appointment of Nomgcobo Jiba as national director of public prosecutions, in December 2011, was also thrust under the microscope.
The two civil society organisations challenged her appointment saying it was “effected on the basis of the understanding that she would perform the function in a manner advantageous to Zuma.”
They added that “the appointment, which ultimately lasted for 21 months, involved taking advantage of the fact that there are no strict legal limitations on the duration of acting appointments.”
He went on to submit that “Zuma appointed Jiba as a deputy national director of public prosecutions in December 2010 a somewhat unusual appointment as it involved being promoted by two levels, bypassing the director level.”
In their affidavit, they also argued that Jiba was already “personally indebted to Zuma” since “three months earlier, in September 2010, Zuma expunged the criminal record of her husband Booker Nhantsi. In 2005 Nhantsi was convicted of theft for stealing R193 000 worth of trust funds from a client while practising as an attorney.”
Jiba has herself been the subject of a considerable amount of judicial criticism as well as being the focus of litigation.
Much of this relates to allegations of impropriety in the exercise of her powers while she was acting national director of public prosecutions.
The complainants also stated that one of the matters that has been prominent and led to her criticism was the December 2011 withdrawal of corruption charges against Richard Mdluli.
In this matter she faces allegations alongside her colleague, Lawrence Mrwebi. The two are currently facing a board of inquiry into their fitness to hold office, chaired by Justice Yvonne Mokgoro.
Last week Corruption Watch and the Right 2 Know Campaign appeared before the North Gauteng High Court challenging the findings of the Seriti commission that there was no corruption in the controversial 1999 arms deal.
Speaking to City Press, Ghalib Galant, deputy national coordinator also expressed some disappointment on the Farlam commission and questioned the precedence that has been set by these commissions.
“We were disappointed in Farlam Commission’s failure to find anyone, in particular, to be responsible for the deaths of the 34 miners on August 16 2012 and we continue to support the Marikana Solidarity Campaign to get justice for the victims and their families. We believe if the Seriti Commission’s findings are set aside then this will set a precedent in terms of how commissions conduct their work in future. A commission of inquiry is set up to unearth evidence and to make recommendations. It does not have decision-making powers. However, a good commission can reaffirm the public’s faith in the principle of accountability, and in the structures and institutions set up to enforce constitutional principles,” said Galant.