In the strange nexus that is the law, the police, and the politics of South Africa, 24 hours is an aeon. As Thursday turned into Thursday night, and Friday morning morphed into Friday lunchtime, many of the old certainties of our lives turned upside down. The Police Ministry released the list of National Keypoints. As a development, it was surprising, unexpected, and downright difficult to understand. And then, in the High Court in Pretoria, Hawks boss Anwa Dramat was dramatically reinstated. All of this shows how, once again, when it comes to control over the security forces, the rule of law is, still, mightier than the politician. For now, at least. By STEPHEN GROOTES.
That the list of National Keypoints was a secret was one of those cornerstones of belief for those who believe that our politicians really were out to turn South Africa into a dictatorship. That belief doesn’t make you paranoid, so much as just slightly cynical. Last year the Right2Know campaign, and the SA History Archive (which has done much useful work on information issues) went to court to ask for the list to be made public. Their argument was a very simple one: without the list, it was impossible for a person to know if they had broken the law, it was possible for officials to abuse this lack of information (by claiming, as some did, that certain sites were keypoints when they were not) and that no harm would come to those sites if the list was disclosed.
In response, Police Minister Nathi Nhleko had an incredibly weak argument. He referred to “dark forces” who could perpetrate terrorist attacks like those on the Nairobi mall two years ago. (Without realising, somehow, that that mall was not on any Kenyan list of keypoints.) In the end, the High Court ruled, as it was inevitable, against the Police Ministry, who, as we’ve all come to expect in these matters, decided to appeal.
Every legal expert everywhere decried this decision. It is so obviously unconstitutional to keep such a list secret that no one outside the Police Minister’s office agreed with this decision. Then, unexpectedly, the list was released on Thursday evening.
It makes interesting reading. There is, apparently, in Kwa-Zulu/Natal, a “Presidential Residence”. Where is not specified, but one can imagine in which town that was recently a small village it may be situated. It’s not the only “Presidential Residence”; there are several others. Power stations feature, so do SABC offices all over the countries. As do the various provincial offices of the Reserve Bank. Because, when the revolution comes, it’s the economists who will have their backs to the wall (which reminds one of the curious anecdote told once by Tito Mboweni, about how the roof of the Reserve Bank had to be capable of landing a helicopter). Curiously, there’s a place called Pretoria Metal Pressing, and it’s less-Eastern cousin, Pretoria Metal Pressing West. Upon further investigation (which is a pompous way of saying “I googled”) it turns out that those particular places manufacture ammunition. And advertise that fact, including their location, on the web.
It would appear that the only reason the Ministry released this list now, is that some lawyer eventually found the courage to tell Nhleko, that actually, they were always going to lose, and so they should just release the list and get it over with.
Which is what advocate William Mokhari should probably have told him in the Dramat case.
Again, the argument against Nhleko’s decision to suspend Dramat was simple: The Constitutional Court had ruled the Police Minister could not suspend the head of the Hawks without a Parliamentary process, thus, therefore, and ipso facto etc, he could not suspend the head of the Hawks without a Parliamentary process. Again, the argument from the Police Ministry was weak, the Minister had to act we were told because of the claims against him about the illegal rendition of Zimbabweans (despite IPID head Robert McBride’s public comment that his report had made no finding against Dramat…someone somewhere is going to rue the day they put someone as independently minded as McBride in that post), and that the Constitutional Court may have removed his power of suspension under the Police Act, but not under the Public Service Act.
And, again, inevitably, the Police Ministry lost.
What makes the ruling by Judge Bill Prinsloo so interesting is a particular set of phrases regarding the suspension:
Where the suspension of Dramat was invalid and nullity from the outset, he was, in law, never suspended, so that there is no basis for ordering his reinstatement.
This would appear to mean then, that if his suspension was illegal, and has now been declared so, in law, it never actually happened. The clock has been set back to before the suspension. Which means that the appointment of Mthandazo Ntlemeng as acting head of the Hawks also didn’t happen. Which means that he didn’t make any decisions while “in office”. Including, of course, his “decision” to suspend the Gauteng head of the Hawks, Shadrack Sibiya.
As an example of what happens when the twisted web one spins to deceive gets unspun, it doesn’t really get much better. Basically, Dramat can now go back to his office (if he hasn’t already) and everything that happened while he was gone, legally speaking, didn’t happen.
No doubt, there will be a temptation on the part of Nhleko to appeal. One can only imagine the squirming that could occur, should he dare to bring this case in front of the Constitutional Court. One can imagine the entire bench lining up to ask why on earth they were being asked to interpret their own ruling; no doubt they would have strong words about the “disdain shown by the executive to the judiciary”, or the “threat posed by the executive to our constitutional order”.
It is important at this point to pose a few questions about the motive of Nhleko’s actions in all of this. When he was appointed, it was difficult to understand why Nathi Mthethwa was being moved from the position. He had appeared to do all of Number One’s bidding, particularly around Nkandla, National Keypoints, and the police generally. Questions could now be asked about whether in fact Nhleko is his own man, or whether he is just acting under orders, about whether he really wanted to suspend Dramat, or whether someone told him to, because, as Dramat has claimed, he had asked for the Nkandla case files.
One thing is certain, as long as Number One is Number One, the Police Ministry is going to be the focus of so much more to come. DM
Photo: Anwa Dramat.