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18 November 2017 02:32 (South Africa)
Opinionista Pierre de Vos

Breytenbach: too little fear, favour and prejudice?

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

The acquittal of prosecutor Glynnis Breytenbach on all 15 charges brought against her by her superiors at the National Prosecuting Authority (NPA) raises serious questions about the independence and impartiality of the NPA and its leadership. It will strengthen the increasingly widely held perception that senior NPA leaders are appointed because of their political loyalty to the dominant faction inside the ANC (and especially to President Jacob Zuma and his campaign to stay out of prison) and not because of their personal integrity, independent attitude and ability to act without fear, favour or prejudice (as required by the Constitution). If this perception is true, this would not be surprising, as the capture of independent institutions by the dominant faction within the ruling party is one of the pathologies generally associated with one party dominant forms of democracy.

From a political point of view, the suspension and subsequent charging of Glennis Breytenbach in an attempt to get her fired from the NPA always looked particularly suspicious. Breytenbach was working on several high profile politically important cases and was suspended shortly after she demonstrated a “disturbing” ability to act in a principled, independent and honest manner – disturbing, that is, from the perspective of those politicians and their benefactors who rely on a politically pliant NPA to protect their interests and to keep them out of jail.

One such a high profile politically charged case on which Breytenbach worked was the fraud charges she pursued against crime intelligence boss Richard Mdluli. Mdluli wrote a letter to President Jacob Zuma in which he mentions – seemingly with approval – perceptions that he (Mdluli) would abuse his position as head of crime intelligence to work towards Zuma’s re-election as ANC President at Mangaung – making Mdluli something of the original names-dropper in a system infected with name-droppers. (The Presidency later claimed never to have received this letter, although Zuma himself never denied personally receiving the letter.)

Back in 2008 Mdluli made an affidavit in support of now acting head of the NPA, Nomgcobo Jiba, who was facing disciplinary charges at the time for assisting in the arrest of fellow prosecutor Gerrie Nel as part of a plan to thwart the prosecution of now convicted fraudster Jackie Selebi. Zuma expunged the criminal record of Jiba’s husband Booker Nhantsi who was imprisoned for stealing trust funds, creating (at the very least) a perception that Jiba might be beholden to the president and might feel that she had to keep an eye out for his interests. Former acting head of the NPA, Mokotedi Mpshe, Menzi Simelane and Jeff Radebe mysteriously reinstated Jiba to the NPA after a back room settlement. The Zuma spy tapes were obtained by Crime Intelligence and given by Mdluli to Jiba to use in her disciplinary case.

Breytenbach was also involved in a criminal complaint in the mineral rights dispute between politically connected Imperial Crown Trading (ICT) and Sishen Iron Ore Company. ICT is partly owned by those others name-droppers of note, the Guptas, and by Duduzane Zuma – one of President Jacob Zuma’s sons. It was her conduct in the latter case which was used to suspend and charge Breytenbach – three months after a complaint was first laid against her by an ICT lawyer, but days after she signalled her determination to pursue the Mdluli matter.

In the ruling acquitting Breytenbach, it was found that some of the charges levelled against Breytenbach amounted to “victimisation”. Advocate Selby Mbenenge, the chairman of Breytenbach’s disciplinary hearing, found that: “There is no evidence that the employee was not always in control. She was independent and objective. She cannot be found guilty”. In other words, the NPA victimised an independent and objective employee for as yet unexplained reasons.

One of the most notable aspects of South Africa’s democracy is that one political party – the ANC – enjoys overwhelming support from those voters who take the trouble to vote in general elections. Moreover, in the absence of a credible political alternative, given the governing party’s untrammelled ability to distribute patronage in the form of tenders and government jobs, and given the ANC control of the SABC (the media outlet serving the vast majority of the electorate), the leaders of the dominant faction inside the ANC have every reason to believe that this overwhelming support for the ANC will continue into the future.

In almost all such one party dominant democracies – whether in post-war Japan, Mexico for the first ninety years of the previous century, post-war Italy or post-independent India – independent state institutions are often co-opted by the dominant faction within the majority party and used to maintain its faction’s political control inside the dominant party and to protect members of the dominant faction from any legal threats – including threats of criminal prosecution for fraud and corruption and threats of exposure of maladministration and abuse of power.

It is against this background that the acquittal of Glennis Breytenbach must be viewed. If it is true – as the presiding officer found - that the NPA “victimised” Breytenbach, the question arises why she was victimised? Surely independent, impartial and diligent prosecutors would never victimise a colleague for doing her job? Could this, perhaps, signal that when the NPA suspended and charged Breytenbach, it was pursuing factional political aims to protect the President and the cabal of name-droppers around him?

Does it mean that Breytenbach had to be gotten rid of at all costs (even the cost of severe embarrassment now being suffered by the NPA in the wake of the Breytenbach acquittal) because she was far too honest, too fearless and too independent and therefore threatened the political interests of the ruling faction inside the ANC? Or did Breytenbach rather pose a threat to the financial interests of President Zuma and those opportunists like the Guptas who have ingratiated themselves with Zuma and the dominant faction within the ANC by providing various benefits to Zuma and his family?

Surely, whatever the answers to these questions might be, only the most loyal cadre (who also happens to have benefited from the fact that President Zuma and his political faction is now in control of the ANC and of the intelligence services), would not worry that the Breytenbach saga demonstrates that the independence and impartiality of the NPA has been fatally undermined.

In law, the independence of a body like the NPA is measured not only on the basis of whether it is truly independent and can act without fear, favour or prejudice. You must also ask whether a reasonable person – someone not overly suspicious who knows all the relevant facts – would have a reasonable apprehension that the body would be biased. A reasonable person would know all the facts mentioned above. A reasonable person would also know that it is in the interest of President Jacob Zuma to ensure that the leadership of the NPA remains beholden (and therefore loyal) to him as he must avoid a situation in which these very people charges him again for fraud and corruption.

A reasonable person would also know of the high risk in a one-party dominant democracy of the dominant faction within the governing party capturing independent institutions like the NPA to protect the members of its own faction against prosecution and to use the NPA to pursue vendetta’s against members of opposing factions. Such a reasonable person would also be aware that the police and the NPA started showing an interest in Julius Malema’s alleged corrupt activities only after he had fallen out with president Zuma and started to threaten Zuma’s hold over the ANC. Given all of this, I would guess that any reasonable person would conclude that the NPA has (in fact, and/or as a matter of perception) long since ceased being the independent body it is required to be by our Constitution.

And is it not because of this perception that the NPA will never prosecute those who are aligned with the dominant faction within the ANC that all the platitudes mouthed about the evil of corruption and all the programmes launched by the government or by the ANC to root out corruption will finally came to naught? Because as long as everybody believes that they are safe from prosecution for corruption as long as they support the president and the faction inside the ANC he heads, they are never going to stop looting public funds or stop bribing state officials to obtain tenders. Neither are they going to challenge the dominance of President Zuma and his faction inside the ANC. This is exactly how the dominant faction in a one party dominant system retains its control over the party and the government. In that sense, at least, a certain level of unchecked corruption by party loyalists serves to promote the short- to medium-term interests of the dominant faction within the ANC. DM

  • Pierre de Vos
    Pierre de vos
    Pierre de Vos

    Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.

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