Analysis: In South Africa, justice politicised is justice denied

By Stephen Grootes 18 July 2011

Over the weekend, the Sunday Times strongly confirmed what many have long suspected – that the person appointed to head up the National Prosecuting Authority by a president who claims to have been a victim of a political prosecution, is in fact, a political appointment. And as we said before, consequences of such a move could be catastrophic. By STEPHEN GROOTES.

A wrecked justice system is a very dangerous thing indeed. It’s what can push, and keep, a country down, corrupt and generally in the dumps for generations. And South Africa’s justice system is getting the stuffing knocked out of it. And who is NPA boss Menzi Simelane protecting? Why, it’s certain specific ANC members, of course. But the very same wrecked justice system will ultimately turn out to be extremely dangerous for ANC leaders themselves.

When Menzi Simelani was appointed head of the NPA we labelled it “An Appalling Choice”. We said it was the stuff of which our worst nightmares are made. We said at the time, the real problem, among many others, was that Simelane had said he believed the NPA head must bow to executive authority, i.e. the president, when it comes to making decisions. On the contrary, the Constitution is explicit that the office of the NPA does not bow to anyone. It bows only to the “Constitution and the law”. But now we know that Simelane not only does not see South Africa’s ultimate law as necessarily binding. He is indeed now meddling in it.

Several cases are currently winding their way through our courts relating to the company Intaka. It’s run by Gaston Savoi, a business wheeler-and-dealer from Uruguay. Essentially, it seems he may have been paying bribes for tender processes to be manipulated, one of the cases meandering through the courts relates to the ANC’s Northern Cape leader and MEC, John Block. Savoi’s been charged and has appeared in court.

The other case, which is beginning to get interesting, relates to KZN economic development MEC Mike Mabuyakhulu and the provincial speaker, Peggy Nkonyeni. Arrest warrants for both have been issued, but the arrests haven’t been executed yet. Mainly, it seems, because Simelane has become involved. At issue is a R1 million “donation” paid by Savoi, after his company was awarded a tender to build a water treatment plant at a provincial hospital. Yes, we’re dealing with tenders, rigging, manipulation, padding, the whole bit.

Savoi is in the business of providing hospital equipment, from water purification plants to oxygen machines. His modus operandi  appears to be to pay “donations” (up to R3.6 million) to a provincial ANC branch at about the same time he’s bidding for government tenders in that province. It’s a system that’s worked for him. He has contracts in Northern Cape, through Block, and in KZN through Mabuyakhulu and Nkonyeni. But the  Special Investigating Unit (SIU) has now started to catch up with him, and several cases relating to lower government officials are beginning move in Kimberley and Pietermaritzburg.

Now, according to the Sunday Times, Simelane is trying to oust Willie Hofmeyr, who is the head of the SIU and the Asset Forfeiture Unit. The paper quotes several sources close to the case, and seems to have it right.

In battles like this, credibility matters, and so does a person’s “backstory”. Hofmeyr is one of the good guys. He’s been with the ANC for decades, was one of the party’s legal negotiators at Codesa and is someone who appears to genuinely care for the country and the rule of law. He’s been in high office in the prosecuting machinery for years, and has managed to keep his nose clean up until this point, staying out of grubby politics. He was involved in the original investigation into President Jacob Zuma, and was the person who actually attached the assets of Schabir Shaik, when they were judged to have been the proceeds of crime.

And on the other hand, we have Simelane who, as we know, tried to mislead the Ginwala Commission of Inquiry into the suspension of Vusi Pikoli as NPA boss back in 2008. It was delicately phrased by Frene Ginwala as: “It is clear that the DG: Justice deliberately held these legal opinions from Adv. Pikoli and the enquiry. By persisting in this conduct, he could have misled the enquiry.”

So, do the maths yourself.

Hofmeyr, in his role as SIU head is very involved in the Intaka case and it is likely to bring down several ANC officials of MEC rank and lower. And now that the legal machinery has started, it can be hard to stop. Hence, what appears to be a possibly desperate move to bring down Hofmeyr himself and that way discredit the entire Intaka process.

So what could Simelane’s motivation for this be? He appears to be sabotaging cases by delaying arrests and assigning junior prosecutors to high-profile cases. Surely this is not the behaviour of a man doing his best to “uphold the Constitution and the law”. Rather it is the behaviour of a man taking orders from elsewhere, or at the very least, motivated by goals other than stipulated by law. Either way, it now seems that if one is accused of corruption, and one is a high-ranking ANC member, the chances good that you will get special treatment. It means that ANC officials are royal game (or in modern parlance, protected species) and as such are above prosecution. It means that, if it takes hold, corruption will be completely unchecked, that it won’t even be defined as corruption anymore, but rather as a simple fact of normal life –  like it was in Nigeria for decades.

But there is also a big danger for some of our politicians. At the moment, it seems Simelane is just working passively, stopping political prosecutions rather than starting them. But what could happen if Simelane goes from passively shutting down prosecutions, to actively starting political prosecutions? Firstly, it would make joining the opposition more dangerous. But Helen Zille getting arrested and prosecuted for a speeding fine is not a likely outcome. Much more likely is another political star rising within the ANC. Someone who could topple Zuma, or start any kind of leadership battle. Then the role of Simelane would come into the political frame. What if, say, a Julius Malema or someone equally unstoppable started to gain momentum, and started to call for the corruption charges against Zuma to be re-investigated. Would Simelane say no, would he do it because he might think that person is going to beat Zuma and thus it’s the smart thing to do, or would he prosecute any of Zuma’s challengers? Would the political reality guide his decisions?

We now know it was Thabo Mbeki who let the genie of politicising the NPA out of the bottle by appointing Bulelani Ngucka, who then prosecuted Zuma in a less than by-the-book fashion. You would have thought that the victim of such action, Jacob Zuma, would have realised how important it was to put that genie back in the bottle. But alas, Zuma couldn’t resist the temptation. And Simelane is proving to be a loyal soldier to the cause.

The reality of South Africa today is marked by the democratic system that is under attack by the ruling party from just about every angle. Many of us still place the last remaining hope in the justice system. The evil genie unleashed by politicising the NPA has a huge political and legal power and the potential to flush us all down the tube. DM

Grootes is an EWN reporter.

Photo: Menzi Simelane (Daily Maverick)


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