The wait for new NPA & SIU heads over, the new wait begins
- Stephen Grootes
- South Africa
- 02 Sep 2013 12:03 (South Africa)
On Friday President Jacob Zuma, after a rather long wait, finally appointed new heads to the National Prosecuting Authority and the Special Investigating Unit. Implicit in the announcement of the appointments was the subtext that actually Number One does not feel the need to explain the reasons for the delays in making these decisions. He also does not feel he has to explain why he's picked these particular people, apart from saying they're "appropriately qualified" and "the best people" for the job. It is his Constitutional right to make these appointments, and there is no legal duty upon him at this stage (unless someone should legally object to his appointments) to explain himself. Fine. But it also means we have to try to understand the motivation for these powerful appointments ourselves, without the benefit of his explanation. STEPHEN GROOTES gives it a shot.
It is always unfair trying to evaluate someone appointed to a controversial job by one Jacob Zuma. Unless you know very much about them, the person who appointed them tends to overshadow the person themselves. It's disappointing and tough on them; they're almost handicapped from the start. People like National Police Commissioner General Riah Phiyega, or Chief Justice Mogoeng Mogoeng could claim, with some justification, that "media hostility" to them upon their appointments was motivated more by the view of the urban elite media practitioners hold of Zuma, than of them.
As head of the NPA, perhaps the most controversial job in recent times in this country, attorney Mxolisi Nxasana may well want to look to their experiences, as a prediction of his own near-future. In this case, that experience could be even more intense, because of the NPA's own peculiar back-story. It's been abused pretty much since its inception, first by Thabo Mbeki and his appointment of Bulelani Ngucka (and thus the heat and emotion, and the "this man cannot be allowed to rule" of the political conspiracy against Zuma,) and then by Zuma with that little Zuma Spy Tapes political conspiracy of his own.
The immediate question, and the only one that really matters in this case, is whether or not Nxasana is the type of independent person who will really look at all matters objectively.
Or, to cut the crap, if the evidence were strong enough, would he re-institute those corruption charges against Zuma?
That really is it.
This takes us, unfairly once again, back to the person who appointed him. If Zuma thought even for a moment that Nxasana was that kind of person, surely he would not appoint him. After all, Zuma's decisions sometimes seem inexplicable, but no one has ever accused him of being suicidal. On the basis of the evidence available, it is safe to say he is not someone who's shown any interest in going down in flames.
We've said before that the particular nexus of politics and law that surrounds this post meant that Zuma had to find someone who was "fit and proper" under the definition laid down by the Constitutional Court in its Menzi Simelane Judgment, and yet would not reinstitute these charges. With hindsight now available to us, it seems obvious that this would inevitably mean he would have to pick someone who is weak, not that experienced, qualified, and yet has done nothing wrong that anyone knows about at this point. Someone who can fit through the eye of this particular needle.
With that as the context, it's now time to try to put Zuma himself aside, and examine what we know about Nxasana himself, a man who is about to be put under just the most intense political, legal and media pressure one can imagine in this country.
Well, unfortunately, there is not much to say. That's not a comment you understand, that's just a function of the fact he is someone who hardly anyone outside the inner legal circles of Kwa-Zulu/Natal knows about. Yes, he's a former chair of the Law Society of KZN, they're plenty of them floating about. And yes, he's played a role in the Durban Branch of the Black Lawyers Association; many others have done that too.
It is interesting that Zuma has picked an attorney, and not an advocate. Nothing wrong or illegal you understand, it's just that advocates are generally given a higher standing in our society, because they do most of their work in the High Court, with all its gowns, bowing and "My Lords". Attorneys generally don't, they tend to be in the Magistrate's court, where the bows are a bit shallower, and the gowns a little grubbier.
Going through Nxasana's CV, perhaps the first thing that strikes a callous and cynical veteran of the NPA wars, is his relative youth. While he's been described in various places as a seasoned veteran, that's not exactly true. He matriculated in 1988. We haven't been given his date of birth, but that makes him now heading towards his mid 40's. Considering the wisdom and confidence that age does give you, we might have liked someone a little older. As we know, in politics and law, as in rugby, youth and skill are no match for age and treachery. (Simelane was similarly youthful, and look how that ended.)
Having said that, what really does stand him in good stead, is that most of his experience, in running his own law practice, is in criminal law. In other words, his experience is very much to do with the proper day to day business of the NPA. He will surely have a good understanding of what those grubby Magistrates Courts in KZN are really like, and thus, hopefully, on how to go about making sure criminals are properly prosecuted.
Or, if you are feeling biblical, if you want to beat defence lawyers in court, hire a defence lawyer.
While the public may want to judge Nxasana on his performance over the long term, that pesky liberal democracy-fighting media is going to focus on one major aspect of his term. And, as we mention, the first big test, the decision that will probably reveal everything about him, and his appointment, will actually come up reasonably soon.
Zuma is currently appealing against that High Court decision to force the NPA to give the DA the Zuma Spy Tapes, for their case about the decision to withdraw the charges against him. The NPA, it seems, was getting ready to hand them, and all the other associated documentation over, when Zuma's lawyers lodged their appeal. At some point, their appeal will be denied. Will Nxasana then hand over the tapes, or not?
If he does, all well and good, he will have passed the first test, and live to prosecute, and be pressured another day. If he does not, he runs the risk of walking around with a mini-shower head in every Zapiro cartoon for the rest of his life.
But, just to emphasise, the real problem in trying to analyse Nxasana, is that the man himself is not talking, despite what can only be describe as repeated and strenuous attempts to speak to him. Perhaps that is wise, perhaps it's not.
The appointment of Advocate Vas Soni as head of the Special Investigating Unit is slightly more open, if only because we know much more about him. We can judge him for himself, not just the person who appointed him. And that's as a result of the long hard slog he's had to get where he is. One of his first jobs, for several years, was as a journalist, at the Rand Daily Mail during the Info Scandal nogal. And yes, dear reader, that means we (almost) like him already.
But after that, he studied, and boy, he studied hard. He's one of those people who can put MA (Philosophy) on his CV, and, yes, there's even the word "Harvard" in it somewhere, because he won a scholarship to study there. So he's very much a brain.
He's also been an advocate in private practice for many years, rising in prominence (and probably salary) over the last two decades. More recently, he's become a member of the Judicial Service Commission, and was an Acting Judge. But it wasn't a blemish-free tenure: while acting, he did preemptively stop the Mail and Guardian from publishing one of its Oilgate exposes. Now, Vas, journalist to journalist, that's bad form.
But speak to the man himself, and one is struck by his politeness. It's not often your correspondent is referred to as "Mr Grootes". Normally the name given to him is a little shorter. And he's upfront about the fact he's really not going to say much at this point, but is happy to be quoted on certain issues. For someone coming into a difficult job in government, that shows confidence, and experience. He is somewhat older that Nxasana, with his mid-60's already a memory.
People who know Soni, and there are many, considering his years of experience, all talk up this niceness. And all say the same thing, the man is honest, he is not a crook, he is not someone to take money. However one or two do wonder, aloud, but not in public if you know what we mean, whether he's going to be fire-breathing dragon we need to slay corruption.
The answer to that is probably not. He's simply not that type.
However, when the history of the fight against corruption is written, the hero will probably be some mild-mannered person who just put in place the right systems and practices, rather than someone who enjoyed night-time raids tailored to the news cycle. Maybe, hopefully, perhaps, Soni will be that person.
All in all, dear reader, we finally have some clarity on these positions. The drift should finally stop. Hopefully, some direction will be instilled in these institutions and things will move forward. But, because of their histories, and mostly because of the person who's really in charge, both of them are going to be examined minutely.
We hope they both know what they're in for. Nothing personal. DM
Grootes is the host of the Midday Report on Talk Radio 702 and 567 Cape Talk, and the Senior Political Correspondent for Eyewitness News. He's been part of the political hack pack since before the Polokwane Tsunami, and covers politics in a slightly obsessive manner. Those who love him have recommended help for his politics addiction. He quotes Amy Winehouse.
Photo: South Africa's President Jacob Zuma gives a statement after meeting with Libyan leader Muammar Gaddafi at Gaddafi's Bab al-Aziziya residence in Tripoli April 10, 2011. REUTERS/Zohra Bensemra