The facts that are germane to the future of the new justice minister in the Government of National Unity (GNU), former Polokwane mayor Thembi Simelane, are still partly obscure but nevertheless sufficiently in the public domain to reach serious legal conclusions.
While Simelane, then known as Nkadimeng, was mayor of Polokwane her municipality made two investments in VBS Mutual Bank which were illegal in that the law, wisely so, prohibits municipalities from investing in mutual banks.
Mayors are the accounting officers of their municipalities. Accordingly, accountability for making the investments, which were recouped as it happened, lies with Simelane.
There is an ongoing criminal investigation into the matter of the collapse of VBS. Documents from the Polokwane mayoral office were in August 2024 seized by the Hawks. The relevant dockets are likely to land on the desks of hapless prosecutors who currently find themselves “under the final responsibility” of the justice minister, who happens to be Simelane – a possible accused or a possible witness. The legal position is governed by section 179(6) of the Constitution.
In the National Prosecuting Authority (NPA), which is run as a programme within the Ministry of Justice, the concurrence of the minister is required in respect of all prosecution policy. The director-general of the ministry is the accounting officer of the NPA.
This constellation of authority, a pyramid with the minister at its apex, does not easily accommodate a situation in which the minister is also the accused in a pending criminal matter.
This situation, not of its own making, puts the NPA in an invidious position because it is not properly independent, a matter that has been addressed as long ago as 2021, when Accountability Now suggested to Cabinet, Parliament and the NPA that the independence of the NPA should be the subject matter of a detailed amendment to section 179 of the Constitution. The details of the amendment are published in Under the Swinging Arch in its Appendix 3 at page 234. The suggestion was noted by the NPA but was ignored by the Cabinet and Parliament.
The NPA remains neither fish nor fowl as a result. It should not, however, be imagined that making the NPA independent of the minister and her ministry is a panacea for the lack of capacity of the current criminal justice administration to counter corruption.
A specialised and trained single-entity body dedicated to the topic is what the law, as laid down in the Glenister litigation, requires. The NPA has admitted it is very short of such specialists and has little capacity to train them to take on the corrupt. There is no reasonable prospect of curing either of these shortcomings in the wake of the capture of the NPA and its ongoing aftermath.
This situation is well illustrated by the career path of the first Investigating Directorate head in the NPA, who left soon after she was appointed when she tried to press on with the prosecution of Bheki Cele.
Shortly after her municipality invested in VBS, Simelane took a personal loan from Gundo Wealth, details of the terms and conditions of which still remain obscure. The loan agreement and the documents evidencing its payment (and repayment) have yet to be produced in Parliament by Simelane for reasons that cannot easily be fathomed, but do cast doubt on her preparedness to be open or even on her bona fides.
She assures Parliament that the documents and proof of payments will be forthcoming, but has no explanation for not producing the loan agreement and payment details already. Whether the loan was really a “kickback” is only an aggravating factor; the mere fact that the loan was taken puts the minister at risk of a conflict of interest.
Gundo Wealth had no business making loans to anyone, least of all the then mayor. It seems that the loan to her was the only loan that Gundo made in the year in question. This fact raises a red flag in respect of the possibility of a kickback.
Gundo is not registered and was not so registered with the financial authorities as a lender at the time. Accordingly, the loan to Simelane was illegal.
It also appears, from what she told Parliament on 6 September 2024, that interest at a usurious rate of 47% was paid on the loan, which was repaid in three tranches, tellingly, shortly after the Motau Report into malfeasance in VBS was published and the irregularities in various municipalities, including Polokwane, came to the knowledge of the public.
Why so much interest was apparently paid has not been explained, nor has the failure to make any repayments prior to the Motau Report.
The paper trail of the terms of the loan and the sources both of the loan funds and the accounts from which the repayments were made remain obscure because Simelane chose to obfuscate and not to account fully to Parliament.
Simelane is not allowed in law to expose herself to the risk of a conflict of interest, whether or not the risk materialises, under section 96(2) of the Constitution read with the ConCourt judgment concerning the Nkandla shenanigans of Jacob Zuma.
Section 96 (2), insofar as it is relevant, provides that all ministers must not “act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or use their position or any information entrusted to them, to enrich themselves or improperly benefit any other person”.
These provisions were analysed as follows by the Constitutional Court in the Nkandla judgment in which the extent of the powers of the Public Protector were determined:
“[8] The Public Protector’s finding on the violation of section 96 was based on the self-evident reality that the features identified as unrelated to the security of the President, checked against the list of what the South African Police Service (SAPS) security experts had themselves determined to be security features, were installed because the people involved knew they were dealing with the President. When some government functionaries find themselves in that position, the inclination to want to please higher authority by doing more than is reasonably required or legally permissible or to accede to a gentle nudge by overzealous and ambitious senior officials to do a ‘little wrong’ here and there, may be irresistible. A person in the position of the President should be alive to this reality and must guard against its eventuation. Failure to do this may constitute an infringement of this provision.
“[9] There is thus a direct connection between the position of President and the reasonably foreseeable ease with which the specified non-security features, asked for or not, were installed at the private residence. This naturally extends to the undue enrichment. Also, the mere fact of the President allowing non-security features, about whose construction he was reportedly aware, to be built at his private residence at government expense, exposed him to a ‘situation involving the risk of a conflict between [his] official responsibilities and private interests’. The potential conflict lies here. On the one hand, the President has the duty to ensure that State resources are used only for the advancement of State interests. On the other hand, there is the real risk of him closing an eye to possible wastage, if he is likely to derive personal benefit from indifference. To find oneself on the wrong side of section 96, all that needs to be proven is a risk. It does not even have to materialise.”
In Simelane’s case, if she is not prosecuted, for good reasons or bad, the risk of the NPA closing its eyes to any malfeasance on her part in the interests of job security, promotion or simple ingratiation through failure to act without fear, favour or prejudice is manifest. The fact that Simelane is justice minister makes the risk unavoidable.
Simelane should resign now or be dismissed by the president if she won’t do so.
The minister with final responsibility over the NPA cannot possibly have as chequered a past as that summarised above, nor can Simelane legally dwell in the predicament in which she finds herself.
If the president declines to dismiss Simelane, consideration will have to be given to the rationality of his so declining. It is highly arguable that no legitimate purpose of government will be served by retaining Simelane as justice minister in the circumstances that swirl around her and her acquisition of a coffee shop in Sandton.
Good politicians enter politics to serve the people they govern, not to do business in coffee shops. DM