It is great pleasure and honour to be afforded the opportunity to address you all today on this subject for which I have great passion.
Ladies and Gentlemen,
Essential components of a young democracy are the rule of law and a robust criminal justice system which is dependent upon the principle of prosecutorial independence for its successful existence. Therefore, I intend to centre this address around prosecutorial independence as a critical component of our criminal justice system.
South Africa has, if not the strongest, then one of the strongest constitutional legislative frameworks in the world. It is designed to ensure that all her citizens live in safety and security, and that everyone is equal before the law. It is these principles that should guide the criminal justice system in the performance of its duties, guided always by the prescripts of the Constitution and the principle of the Rule of Law.
South Africa has a structure designed to strictly recognise the doctrine of the separation of powers and the principle of the Rule of Law. These are the cornerstones of our constitutional democracy, and on paper they guarantee the freedoms that we seek to uphold in our country. These are principles that are jealously guarded in South Africa, given the quite recent past from which we have emerged, and to which no-one wants to return, ever.
The National Prosecuting Authority (NPA) is the single prosecuting authority in South Africa that came into existence as an Act of Parliament and, through the National Director of Public Prosecutions (appointed by the President), is empowered to institute criminal proceedings on behalf of the state in terms of section 179 of the Constitution.
There are several critical shortcomings in our prosecutorial system. I will not explore these systemic and institutional problems. However, for the purposes of this address I will drill down into the appointment process that is not necessarily a problem in and of itself, but is an institutional reality that has been exploited under President Jacob Zuma’s ANC in government.
It has indeed been exploited by the President himself, to protect himself and those close to him. This is perhaps the gold standard of undue political interference in a fairly new constitutional democratic dispensation. It is this very political interference that has a death grip on our prosecutorial independence and threatens our criminal justice system. This all for one man.
The NPA has long been rocked by scandal after scandal at the hands of several politically expedient national directors whose fundamental preoccupation has not been to defend the Constitution and the rule of law but rather to protect President Zuma and his ever-deepening network of patronage. President Zuma has successfully appointed national directors of the NPA that represent the worst in our prosecutorial system.
From Menzi Simelani, to the disgrace that is the sitting Deputy National Director of Public Prosecutions (NDPP) to the notorious Mokotedi Mpshe who was single-handedly responsible for the dropping of 783 charges of corruption levelled against President Zuma for undue political reasons as the recent release of the, so-called, Spy Tapes reveals.
After five years of intensive litigation against an uncooperative NPA, the DA finally got its hands on the smses, e-mails and voice recordings that have come to be known as the Spy Tapes. The record of decision eventually supplied to us by the NPA, including the so-called Spy tapes, have revealed that the reasons to drop the 700-odd charges against President Zuma were indeed baseless, irrational and should therefore be set aside.
Mokotedi Mpshe is arguably the most dubious of all directors of public prosecutions because of his blinding and flagrant disregard for the law and accountability as revealed in the NPA’s record of decision. He is, quite simply, a disgrace.
It is our contention that the record of decision reveals that:
Mpshe did not make his decision based on an assessment that his earlier decision to institute criminal proceedings against the President was flawed;
He did not make his decision based on any new information;
He did not make his decision based on any substantive content of the indictment containing the charges or on concerns about the prosecuting team.
In the absence of any legitimate factual or legal reasons, the DA is led to believe that these charges were dropped to serve an insidious political agenda.
It has been our belief that the President may indeed not be guilty of corruption but must, like any other citizen, have his day in court. This notion is critical to our justice system and the President, as on of the custodians of our democracy, should give meaning to this principle. Instead he has, through various directors of public prosecutions, used taxpayers money to bankroll the disappearance of these Spy Tapes that his legal counsel have conceded contain nothing that warranted the dropping of the almost 700 charges of corruption lodged against him.
The current Deputy Director of Public Prosecutions, Nomgcobo Jiba, comes a very close second and has systematically done all in her power to continue the assault on the prosecutorial independence by ensuring President Zuma and those close to him – like the discredited Crime Intelligence Head, Richard Mdluli – escape accountability.
Jiba was promoted with breath-taking alacrity from senior Deputy Director of Public Prosecutions (DDPP) to DNDPP – a feat previously unheard of – and over the heads of many other more capable senior officials in the NPA. This was done by President Zuma at the death of the Simelane reign of destruction at the NPA, clearly to take over the protection of the President where Simelane, and Mpshe before, had left off.
Jiba acquitted herself with distinction, operating with apparent impunity and abusing the NPA and the Rule of Law with no regard for the damage done to the NPA, to the country or the legal system. She clearly thought she could do so with no consequences, enjoying the protection of both the Minister and the President. So much so that her husband, Booker Nhantsi, was pardoned and had his criminal record expunged after having been convicted of stealing Trust Monies by the Mthatha High Court.
Jiba’s conduct has subsequently been slated by the North Gauteng High Court and the Supreme Court of Appeal for her handling of the Mdluli matter. She has been slated by the KZN High Court for her handling of the Booysen matter, who was unduly suspended for almost two and a half years as the KZN Hawks boss. In August 2014 she was indicted again by the Supreme Court of Appeal for her handling of the “spy tapes” matter.
This, the court stated was by deliberately failing to provide any meaningful affidavits or testimony and neglecting to mention any relevant facts regarding this court application. She also failed to produce “documents and other materials within her possession as the then acting NDPP, particularly in the face of an order of this court”.
To make matters worse, it is presently unclear whether or not she is in fact an admitted advocate, but it would be a simple task for her to produce an admission certificate, or obtain a duplicate. For some strange reason she has not provided any irrefutable evidence of her admission as an advocate.
In his latest, transparent attempt at interfering in the governance at the NPA, the President, on Saturday 5 July 2014, announced that he would institute an inquiry into the fitness of the current NDPP, Mxolisi Nxasana, for trying to restore integrity to the NPA. Nxasana’s attempts to reinstate charges of murder, kidnapping and defeating the ends of justice against disgraced Crime Intelligence Head, Richard Mdluli, have put his job on the line. It is no secret that Mdluli is a close ally of Zuma and was deployed to crime intelligence to protect the President from accountability.
Almost a full six months later and President Zuma has not made any further announcements regarding the inquiry or the terms of reference that are to guide this inquiry into Nxasana. The President has also failed to reply to any of the DA’s letters with regards to this matter. The inexplicable delay gives credence to the suspicions that the enquiry is designed to disguise a “witch-hunt”, to enable the President to get rid of the NDPP for being too independent and discharging his mandate without fear of favour.
If you think this sort of unwarranted political interference is limited only to the NPA, you are mistaken. The South African Revenue Service (SARS) and the Directorate for Priority Crime Investigation (Hawks) are just two other critical state institutions that Zuma’s ANC is hell-bent on bending to its own self-interested political will.
Having targeted Ivan Pillay, Peter Richer and to a lesser extent Johan van Loggerenberg and Clifford Collins, the fire has been taken out of “sensitive” and “high profile” investigations. These include the investigation into the tobacco industry and a tax investigation into the ANC’s tax bill and the President’s own tax bill. All of these inquiries are now on hold and will eventually disappear into the administrative woodwork at SARS. Having “taken out” the main players, those left behind will have little or no appetite for such investigations.
Similarly at the Hawks; Anwa Dramat quietly but effectively provided the necessary space to allow for the conclusion of the Richard Mdluli investigation. He has also called for “sensitive” matters such as the Mpisa and Nkandla dockets to be centralised under his control.
This won him no friends in government and certainly made the President and the ANC nervous. The result is that Dramat is now suspended on the basis of a set of facts which are as old as the hills and of which he has already been cleared by the Independent Police Investigative Directorate (IPID).
BUT it gets worse.
Dramat is the Chairperson of the Anti-Corruption Task Team (ACTT), the highest profile corruption investigative body in SA at present, and Clifford Collins (former SARS anti-corruption Head) has been moved by Tom Moyane to take charge of the SARS warehouses. Clifford Collins was also the Deputy Chair of the ACTT. So the result is this: the Hawks are destroyed, SARS is broken and the ACTT is conveniently rendered ineffective.
There is not much left to break.
Given these historic and recent revelations, one can only conclude that those at the very top in our justice system are prepared to do just about anything to ensure that President Zuma is shielded from accountability.
With every blow to our prosecutorial independence, it is clear that to stop the unrelenting decay of our nations criminal justice system, Parliament has to make the necessary legislative reforms to ensure that rank political meddling is kept at bay once and for all.
Prosecution in South Africa was intended to be free, fair and unadulterated by politics. It is now dominated by it. A gutless and politically expedient President and ANC in government have shown wanton disinterest in arresting the abuse of this vital institution. It is for these reasons that the DA will be reintroducing a Constitutional Amendment Bill this year. This Bill will seek to amend section 179 of the Constitution by addressing the appointment procedure of the National Director of Public Prosecutions.
It is my pledge, here, on this day, on behalf of the Democratic Alliance to do everything in our power to ensure that state institutions like the National Prosecuting Authority are not abused without consequence.
Our criminal justice system depends on it.
Speech by Glynnis Breytenbach