Every accused person has a guaranteed right to “have their trial begin and conclude without unreasonable delay”. We are all “equal before the law” and everyone “has the right to equal protection and benefit of the law”. The words in quotation marks are drawn from the Bill of Rights, which is a part of the supreme law of the land, our Constitution. The state “must respect, protect, promote and fulfil” the rights in the Bill of Rights. Unfair discrimination is not permitted.
The brouhaha around the charges of assault to do grievous bodily harm which have, finally, been brought against Deputy Minister Mduduzi Manana, has highlighted the existence of the manyana syndrome, but his case is not the most egregious example of it.
In any country in which a functional criminal justice administration exists, the prominence and prima facie probity of the #GuptaLeaks would have led to searches and seizures, arrests and arraignments, long ago. Instead, the Guptas and their friends continue to duck and dive, delay and deflect, even deny and disorientate (with a little help from their pals at Bell Pottinger) as they sail on unaffected by the mountain of evidence in the leaks.
There are even rumours that the Guptas have exported the hard drives of the computers in their businesses. This tactic was presumably to put their data beyond the reach of criminal warrants and civil Anton Piller orders that could and should be used to bring the Guptas to book.
OUTA lays charges and acquaints the authorities with its case in a 400-page document. The faith-based sector delivers a damning “unburdening report” that identifies the seven deadly sins of state capture, and learned academics wax eloquent about a “silent coup” in which there has been a “betrayal of the promise” of the new constitutional order. The Public Protector published a damning State of Capture report last November. The activities of Gerrie Nel, Afriforum’s private prosecutor, and Paul O’Sullivan through Forensics for Justice, are sufficiently well known not to need further comment.
All of these developments, with ample prima facie evidence of criminality in the documents, leave the criminal justice administration completely unmoved for reasons O’Sullivan regards as sinister. No discernible progress has been made with the investigation of the serious allegations of malfeasance made in the various documents now in the public domain.
In fairness to the National Prosecuting Authority, its investigative capacity was abolished as part of the nefarious scheme to dissolve the Scorpions. The investigators in the Scorpions, those who did not seek greener pastures in the private sector or elsewhere, were transferred to the Hawks, a police unit that is meant to succeed the Scorpions but has spectacularly failed to do so.
It thus, legally speaking, falls to the Hawks to investigate corruption in high places. That is precisely what the law requires, but it is not what the Hawks actually do. They have been deployed to good effect to rid the Cabinet of some of its best talent, without a successful prosecution, but instead by way of the persecution of the top people in the ministry of finance.
In fact, the Hawks cannot claim the scalp of a single “big fish” since they succeeded the Scorpions in 2009. Before the presidency captured the Office of the Public Protector, it fell to that office to do the necessary work to address corruption. Bheki Cele, Dina Pule and others lost their high positions due to the anti-corruption work done on Thuli Madonsela’s watch, but none of the biggish fish brought to book by her have ever been prosecuted criminally, as they should have been. Pule retired in disgrace, having “suffered enough” in the famous words of ANC grandee, Ben Turok, when he publicly explained that, despite the masses of evidence against her, the ANC had decided against a prosecution: so much for equality before the law and an independent NPA doing its work without fear, favour or prejudice.
The manyana syndrome is best illustrated by the charmed life that the President, Jacob Zuma, leads. His financial adviser, Schabir Shaik, was sentenced, in 2005, to a jail term of 15 years for corrupting Zuma. The two ought to have been charged together, but were not for indefensible “political reasons” of the kind which should play no part in the decision-making of the NPA. By 2009, with a vulnerable acting head, the NPA was sufficiently cowed to withdraw the 783 counts of corruption it had prepared for Zuma, flowing from his generally corrupt relationship with Shaik. The fact that illegally obtained “spy tapes” were used to perform this Houdini trick left the NPA completely unmoved. Vusi Pikoli, the then NDPP, had been suspended for going after then Commissioner of Police, Jackie Selebi, and was then unfairly dismissed for going after Zuma himself.
Immediately the charges were withdrawn, the DA took the necessary “urgent” steps to take the decision on judicial review. That review is still not completed on appeal. To its shame, the current leadership of the NPA has sided with Zuma in opposing the review, which will have the effect, if it succeeds, of bringing Zuma to court to face the 783 counts of corruption. The DA has been less than pro-active in bringing the matter to finality. It correctly regards the “corrupt and broken” president as its electoral asset, yet the ANC remains paralysed to do anything to counter the capital that all opposition parties gain from the continued presence of the president. Not once has the DA asked for the review matter to be given an accelerated hearing in court, a host of side issues and pointless appeals have dragged the matter out, seemingly endlessly, with the leadership of the NPA using the manyana syndrome to avoid accountability for its role in the debacle. While Zuma sails on serenely, top advocates in the NPA are struck from the roll, senior counsel representing him is obliged to abandon arguments when confronted by irritated judges of appeal, and the ducking and diving, delaying and deflecting continues unabated.
It is not only in respect of the Shaik-related 783 charges that Zuma leads a charmed life, with the compliments of his thoroughly captured NPA and Hawks. He ought to be a co-accused in the #GuptaLeaks matter, he ought to be under investigation for what the Public Protector has uncovered in her related State of Capture report. The OUTA 400-pager ought to be acted on urgently; none of this happens due to the manyana syndrome.
If that is not enough, let’s go back to the Nkandla affair. The Secure in Comfort report of the Public Protector contains prima facie proof of theft, fraud and corruption as well as indications of criminally irregular procurement at the homestead of the Zuma clan.
It is logically and legally impossible to justify the expenditure of a quarter of a billion rand on a humble collection of rural rondawels in the name of “security enhancements”. This folly is the equivalent of fitting an ancient VW Beetle with solid gold bumpers, mink seat-covers and a diamond-studded steering wheel in the name of making it road-worthy. Notwithstanding stout efforts in parliament, including an imaginative firepool and a chicken coup being characterised by henchmen of the president as “security features” of Nkandla, the Public Protector was not fooled and reported accordingly.
When her report was leaked in December 2013, Accountability Now laid charges of theft, fraud and corruption at the central police station in Cape Town. The constable who accepted the charges (nobody else on duty would) was made the subject of abortive disciplinary proceedings for doing so. The docket did not go to the Hawks, as it should have; instead it was given the manyana syndrome treatment by detective services in Pretoria. In March 2014, when the official State of Capture report was published, the EFF laid similar charges in Pretoria and the DA did likewise at Nkandla.
After the Constitutional Court slightly enhanced the powers of the Hawks in November 2014, their then head, Anwa Dramat, was emboldened to ask for the Nkandla dockets, which had been kept well away from the Hawks. Before Christmas 2014 he was suspended, on trumped-up charges that will never stick but are still pending, and ‘ere long he was eased into a golden handshake departure package. As far as is known, the Hawks have never received the dockets on Nkandla. Certainly, no discernible progress has been made towards criminal prosecution of anyone at all. Neither the DA nor the EFF has been able to get a sensible response to their queries about progress.
In mid-2015, things went from bad to worse. The then National Director of Public Prosecutions, Mxolisi Nxasana, had, perhaps unwisely, let it be known publicly that he would prosecute Zuma if the DA’s long running review of the Shaik-related charges was successful in court, as it has been thus far.
This announcement caused understandable consternation in the Presidency. Discplinary steps against Nxasana were started, but were aborted when the chairman of the inquiry made it clear that he could see nothing wrong with the track record of Nxasana. Instead, a settlement agreement, in which the fitness for office of Nxasana is expressly acknowledged, was entered into in interdict proceedings he had brought to preserve his constitutionally guaranteed independence and his job.
That settlement agreement is, in the considered view of two senior members of the Cape Bar, prima facie evidence of corrupt activities on the part of the president and his minister of justice.
Accountability Now laid charges in July 2015. Helpfully, and in a bid to expedite the matter, a draft charge sheet was attached to the complaint. In November 2016, after queries were received from the Hawks, the complaint was supplemented with an affidavit in which all queries were comprehensively dealt with in a manner which has not elicited any follow-up questions.
Since then, there has been no progress in the matter. The Hawks maintain that the docket is on the desk of Adv Mzinyathi at the NPA in Pretoria. He remains sphinx-like. A personal, face to face approach last year to the current NDPP, Shaun Abrahams, has not borne any fruit. Indeed, it has not even elicited a response. The head of the NPA in Cape Town, Adv Rodney de Kock, ducks, dives and deflects all queries away from his office, despite the fact that the settlement agreement was signed in Cape Town on behalf of the prime suspects in the matter, the president and his minister of justice.
Deputy Minister Manana has not been suspended or relieved of his position in the Cabinet. Small wonder: it would be difficult for the president to justify any such step given his own track record. Manana’s criminal case has been postponed for further investigation. The widely published video footage of him assaulting the complainant and his public apology for doing so are apparently not sufficient.
The manyana syndrome is alive and well in SA, and it is corroding the efficacy of the criminal justice administration in a manner that ought to be alarming to all right-thinking citizens. DM
Paul Hoffman SC is a director of Accountability Now and the author of Confronting the Corrupt.