STATEMENT BY SUNDAY TIMES EDITOR, RAY HARTLEY
The decision by acting Judge Nomsa Khumalo of the Pretoria High Court that the Sunday Times can publish the article “How Zuma got off the hook” represents a victory for free speech.
The judge ruled that the NPA had failed to argue that there were grounds for an urgent interdict against the newspaper and awarded costs to the Sunday Times.
The story by a award-winning investigations unit (Stephan Hofstatter, Mzilikazi wa Afrika and Rob Rose) is based on over 300 pages of leaked documentation, which show that top prosecutors were convinced they had a winning case against Jacob Zuma. Despite this, the then Acting head of public prosecutions, Mokotedi Mpshe overuled them and dropped the charges in 2009.
The story includes details of secret representations made by Zuma’s lawyers to the NPA and a series of internal memorandums in which top prosecutors argue strongly against dropping the charges despite claims that the prosecution was tainted by political interference. Their argument was essentially that political interference should not trump the merits of the case which they believed to be strong enough for a successful prosecution.
Sadly, the NPA has said it intends bringing a fresh court action against the Sunday Times this week on the grounds that the documents were illegally obtained. This too will fail because the documents were leaked to the Sunday Times and are demonstrably in the public interest.
Instead of trying to keep vital information away from the public, the NPA would do well to heed the constitution’s call for an “open” society and its protection of freedom of expression. Its dogged attempts to protect certain political leaders from public scrutiny are raising serious doubts about its ability to serve the public with the independence and integrity required of a prosecuting authority.
What is chilling is that if the Protection of Information Bill is passed in its current form, this sort of reporting will become illegal.
AFTER months of prevaricating, the ANC has finally charged its Youth League leader, Julius Malema, for his outrageous behaviour.
In a statement issued on Friday, the chair of the party’s disciplinary committee, Derek Hanekom, said Malema would be charged with “various violations of the ANC constitution, including bringing the ANC into disrepute through his utterances and statements on Botswana and sowing divisions in the ranks of the ANC”.
It is clear that the straw which broke the camel’s back was Malema’s stated intention to interfere in the internal politics of Botswana.
Malema said earlier this month that the neighbouring country was a threat to Africa because it was discussing a possible military base with “imperialists”.
“That puppet government [of President Ian Khama] is going to undermine the African agenda.”
He went on to call for Khama’s removal in a “democratic manner.”
“We know that Botswana is in discussions to open a military base for the imperialists and the present government of Botswana has the potential to co-operate in this manner,” he said.
That a leader of some stature in South Africa’s ruling party should announce plans to topple a neighbouring government is clearly totally unacceptable and the ANC is right to take Malema to task.
What is less clear is which of his other “utterances” will be dealt with.
Will the ANC have the courage to rein in Malema for his bombastic calls for nationalisation which have seriously damaged this country’s prospect of attracting foreign direct investment?
Will the party have the courage to call him to order over his outrageous racist statements which run counter to the party’s philosophy of non-racialism?
Having finally grasped the nettle, the ANC would be wise to go all the way, to mix a metaphor.
This is a fight to the death. If Malema survives unscathed because of weak prosecution or a reluctance to bring the full might of party discipline to bear, he will emerge stronger than ever.
He will then make a very damaging bid to unseat the party leadership at its Manguang conference next year, leading to more uncertainty over leadership and the direction this country is taking.
South Africa is a robust democracy, but the ANC must understand that the messages its senior leaders send out are taken to be the views of the governing party.
The consequences for South Africa of Malema’s attack on the fabric of society have already been severe. Let’s hope this action is not too little, too late.
PRESIDENT Jacob Zuma’s decision to abstain from public discussion on matters of great public importance is reinforcing the view that South Africa has no decisive leadership.
Over the past several weeks, devastating criticisms have been levelled at several of the government’s most senior leaders.
The public protector, Thuli Madonsela, has released her final report on how key leaders wrongly consented to the signing of two dodgy leases to the tune of R1.78-billion for police buildings in Pretoria and Durban.
Her report makes it plain that, between them, the Minister of Public Works, Gwen Mahlangu-Nkabinde, and police commissioner General Bheki Cele flouted regulations, ignored tender rules and seriously abused the trust placed in them to use public money wisely.
In Mahlangu-Nkabinde’s case, Madonsela specifically directed the president to take action. In Cele’s case, she called on the Minister of Police, Nathi Mthethwa, to act.
Zuma has not only failed to act, but has offered no explanation of how he intends to deal with this matter, showing contempt for Madonsela and for the public.
There are other signs that Zuma is failing to exercise presidential authority.
Three of his ministers have decided to challenge the ruling of the Competition Commission on Walmart in what can only be described as an act of immature political defiance against a government structure.
That a foreign investor can one week be allowed by a regulator appointed and regulated by the government to invest, only to find that the government challenging its own decision the next, is deeply perplexing.
That the Minister of Finance, Pravin Gordhan, is not part of this action suggests that it does not enjoy the support of Zuma’s entire cabinet.
It is worth asking if the absence of leadership has become so grave that Zuma no longer has authority over all his ministers.
Zuma’s strength is his ability to bring together those who disagree. His weakness is that he is unable to take a position which might alienate one or another member of the coalition that brought him to power in Polokwane.
Thus the ANC’s youth leader, Julius Malema, is able to say or do almost anything without consequences.
Left-leaning ministers who see foreign investors as evil imperialists are allowed to go to court to challenge decisions made by government bodies.
And appalling financial decisions such as those made by Cele and Mahlangu-Nkabinde go unpunished.
Zuma had better wake up to the fact that he is putting his weakness on display. He will not survive as leader unless he shows he has the mettle for the job.
@This is a draft leader for the Sunday Times
KADER Asmal did not die a bitter man, but who would have blamed him if he had? His political career in South Africa after his return from exile followed two distinct trajectories. The first encompassed his participation in the drafting of the constitution and his service in the cabinet of Nelson Mandela.
During that time, Asmal helped construct one of the world’s foremost progressive societies, one in which the rule of law held sway, but within a framework of compassionate, humanitarian values aimed at advancing the position of the poorest in society.
During that phase, he enjoyed the unqualified support — and frequent public admiration — of Mandela, who saw in him a fearless proponent of reconciliation.
It helped that Asmal had a wicked sense of humour, for the society that was being constructed was one in which the humanity of the people stood in the foreground, with the machinery of state at their service.
Among his contributions beyond the constitution were the formulation of guidelines prohibiting the sale of arms to countries where they would be used to suppress democracy or wage unjust wars.
And he drove the drafting of rules on the declaration of private assets and the acceptance of gifts by public figures.
The second trajectory began when he found himself sidelined under former president Thabo Mbeki.
He resigned as an MP to avoid having to vote in favour of the disbanding of the Scorpions.
He was to witness growing challenges to his life’s work from within ANC ranks.
The constitution he had helped craft became an object of derision by a rising cohort of populist leaders.
Transparency and openness gave way to opacity as some public officials amassed vast fortunes while still in office.
The sale of arms to whomever became strategically significant swept away the high standard he had set in this terrain, and now South African arms and vehicles can be seen suppressing democratic protests all over the world.
Asmal found himself increasingly on the outside, one of only a handful of voices speaking out against the erosion of the country’s founding democratic values.
Finally he found himself outside the parliament he had helped to bring to life, addressing those protesting against the Protection of Information Bill about the need to fight against this pernicious legislation.
He occupied high office within the government, but that was a means, not an end. When the time came for him to stand with the protestors outside parliament, he did not hesitate to do so.
His was a life of service to the idea of a great South African society. Long may his legacy live.
*This is a draft leader for the Sunday Times
THE results of the local government election suggest that little has changed. The ANC lost a percentage point or two compared with it’s 2009 national election result and it held onto all the major metros it already controlled.
The DA gained, but more at the expense of other opposition parties, taking only marginal votes from the ANC.
But there are many more strands to this election than this superficial reading.
The ANC retained its influence by taking some dramatic steps to improve its image among voters. President Jacob Zuma went on record last weekend saying that he now “understood” why there had been such wide protests over service delivery.
This was a major acknowledgement following as it did on years of denial that was a serious delivery problem.
Zuma also hinted strongly that Sicelo Shiceka, the ineffectual minister charged with local government would go and the ANC dumped mayors who had failed, such as Johannesburg’s Amos Masondo, in favour of new faces.
All of these concessions resulted from the reality that the opposition DA has managed to re-imagine itself as a party which first and foremost cares about the delivery of services.
It was no longer a hollow claim made for propaganda purposes. The DA was able to point to a track record of success in Cape Town. It’s message lost some of its power as it dallied over the enclosure of toilets in Makaza, granting the ANC a desperately needed lifeline.
There can be no question that there will be an urgency in both ANC and DA-led councils to demonstrate probity and measurable delivery. The hot breathe of the opposition on your neck is, ultimately, the surest inspiration to properly represent the people.
The eradication of the smaller parties, including the IFP, Cope and the ACDP, by the DA, places South Africa on the path to a two-party electoral system. This will further focus electoral politics and bring more pressure on parties to meet their fulfil promises or face censure from voters.
The danger which now lurks is that parties might retreat into racial categories, with the DA representing minorities and the ANC representing the black majority. This would be tragic proof of the longevity of the apartheid paradigm.
It would ossify politics, limiting the opposition’s growth and it could push the ruling party increasingly into racial politics to bring out its base.
The rise of populist politicians who are not afraid to play the race card has already begun.
But the politics of delivery might yet prove more powerful than that of racial allegiance. Next time around, will failure be tolerated?
*This is a draft leader for the Sunday Times
THE killing of Osama bin Laden by US Navy Seals this week closed an awful chapter in global terrorism that began with the assault on the twin towers of the World Trade Centre in New York a decade ago.
Bin Laden declared war and the bullets used in Pakistan were fired by soldiers he had declared mortal enemies.
But the shooting of one man, regardless of how powerful a cult-figure he might have been among extremists, will not bring about a lasting solution to the problem of terrorism.
The real solution has been unfolding before our eyes on the streets of Egypt, Tunisia, Libya, Syria and Yemen where a new generation is demanding a free open society in which free expression and democracy are guaranteed.
There is no certainty that this movement will succeed. Repressive regimes such as Syria and Libya are using their military might to crush the protestors, who are literally laying down their lives for their beliefs.
What is at stake is no less than a fundamental political realignment in a region where autocrats of monarchical, republican and religious stripes have kept democracy at bay for centuries.
While it would be wrong to conflate these dictators, inhuman though they are, with the evil that is al- Qaeda, they are responsible for creating an environment in which such extremists are able to thrive and recruit the ill-informed.
South Africans need look no further than their own country for a shining example of how an open, democratic society vanquishes political violence and extremism.
Militant extremism by the right-wing has faded with every passing year of democracy. Other movements, such as those involving underground cells in Cape Town, which attempted to begin campaigns of bombing terror have fizzled.
It is not possible to sustain destructive, underground guerilla operations in a society where the vast majority benefit daily from living in a democracy.
Our society is intolerant of terrorism and despises those who commit it in the name of ideology, religion or fanaticism.
It is not possible for fish with evil intentions to swim in a sea of openness without being noticed, to invert the old guerilla maxim.
What is vital is that the sea of openness not be infused with the murky legislation that is being proposed by government to “protect” the public from certain information.
In an open society secret intelligence reports of dubious intent are quickly exposed and are subject to legal sanction.
We must remain an open society. Our model of democracy ought to be our proudest achievement. More than that, it ought to be our greatest export.
*this is a draft for a leader article in the Sunday Times
THE Judicial Service Commission faces a stark choice: It must act swiftly to re-establish its credibility or take a defiant stand that further erodes the the South African judiciary.
The commission, called into being by Chapter 8 of the Constitution, was designed to ensure the “independence, impartiality, dignity, accessibility and effectiveness” of the courts.
It is supposed to ensure that the best minds find their way to the bench by recommending appointments to the judiciary and that the behaviour of judges is above criticism.
The commission is made up of the country’s senior judge, attorneys and nominees from the ruling party and the opposition with the purpose of bringing about transparent, accountable management of the courts that is free of political bias.
It’s actions around Judge Hlophe suggested that it was drifting from this prescription.
That is putting it too politely. In fact, the Hlophe hearings were a low point for the JSC. They demonstrated that political influence could be brought to bear when it came to evaluating the conduct of judges.
It is worth recalling what Hlophe had been accused of doing.
He had visited two Constitutional Court judges, Judge Bess Nkabinde and Acting Judge Chris Jafta, in their chambers in an effort to influence them on a matter before the land’s highest court. The matter involved none other than President Jacob Zuma.
Zuma — through his lawyer, Michael Hulley — and the arms manufacturer, Thint, wanted documents seized during raids on their premises declared inadmissible as evidence. At the time, Zuma faced prosecution for his role in bribes related to the arms deal.
Hlophe had, according to Jafta, claimed that Zuma was being persecuted. His pay-off line to the judge was: “You are our last hope.”
In a ruling which shocked the legal profession and the public, the JSC, after hearings held in camera, bought Hlophe’s patently false claim that he was simply having a friendly discussion with colleagues.
No formal inquiry was needed, said the body charged with maintaining the “dignity” of the courts.
It’s words were: “The Commission, by a majority, came to the following conclusions: that the evidence in respect of the complaint does not justify a finding that Hlophe JP is guilty of gross misconduct and should accordingly be removed from office …”
It was a decision which paved the way for a loosening of the discipline surrounding the judiciary — it was now okay for a judge to discuss a case, even express and opinion on what should be concluded, with a colleague.
The Appeal Court has corrected this mistake. Now the ball is in the court of JSC. It must act swiftly to restore public confidence — or prove that it is part of the problem.
ONE of the first actions of the faction loyal to President Jacob Zuma at the ANC’s 2007 Polokwane conference was to pass a resolution calling for the disbanding of the Scorpions, a unit of the National Prosecuting Authority charged with fighting organised crime.
It was a breathtaking show of political partisanship given that Zuma was, at the time, being investigated for corruption and fraud by the Scorpions.
The Scorpions had already successfully put behind bars Zuma’s financial advisor, Schabir Shaik, for his part in bribing Zuma.
After the charges against Zuma were dropped on the grounds that they were politically motivated by the then acting head of prosecutions, Mokotedi Mpshe, Zuma ascended to office.
His government turned the Polokwane resolution into law and the Scorpions were replaced by the Hawks. The new agency was to report to the police service and, critically, it lost the independence from interference offered by a reporting line to the prosecuting authority.
Mpshe left the stage and Zuma replaced him with Menzi Simelane, a man who openly believed that the prosecutions agency ought to be politically accountable.
He had been found by Frene Ginwala, who conducted an inquiry into Vusi Pikoli’s fitness for the job of directing prosecutions, to have irregularly attempted to abort the arrest of then police chief, Jackie Selebi.
The Zuma presidency had effectively removed the teeth of the NPA and the Scorpions, placing the investigation and prosecution of organised crime cases firmly within the orbit of the political leadership.
As if to underscore the point, Zuma had appointed an old political bruiser, Bheki Cele, to the position of Police Commissioner and the brother of his jailed financial advisor, Moe Shaik, to head the South African Secret Service.
It is perhaps a sad indictment of civil society that this reshaping of the security and intelligence landscape in the image of a political faction occured with barely a whimper of public protest.
Only one man, Hugh Glenister, felt sufficiently outraged to legally challenge the demise of the Scorpions. After losing in the Western Cape High Court, he continued his battle in the Constitutional Court.
This week the court ruled by a narrow margin that it had been wrong to create an agency to fight organised crime that was not independent of political influence.
It did so with the Chief Justice, Sandile Ngcobo — appointed by Zuma to the job in 2009 — writing a minority opinion against the ruling.
This trickle of justice might not be sufficient to reverse the tide of corruption, but it is a timeous reminder to the powerful that the law still stands above them.
* This is a draft leader for the Sunday Times of 20 March, 2011
PRESIDENT Jacob Zuma’s decision to sue the Sunday Times and its cartoonist, Zapiro, over a cartoon, sheds more light on his jaundiced understanding of press freedom. Zuma’s complaint is that the cartoon was “degrading” and left him feeling “humiliated” because it suggested he was about to rape a figure representing Lady Justice and that his image suffered.
The most immediate question is: exactly how did his reputation suffer? After the publication of this cartoon, Zuma went on to become president of South Africa, which suggests that his image was, if anything, rapidly on the rise in the eyes of his political peers and the public.
Whatever revulsion Zuma might have felt at the cartoon, the reading public knew it was a metaphor for how he dodged the day in court on corruption charges he had once ardently wished for, and not an actual depiction of rape.
Only the most determined and humourless political hack would fail to make the distinction between a cartoon metaphor and reality.
In Zuma’s mind — and in those of the ANC’s less enlightened cadres — the press must “respect” the president who, according tothis view, occupies some sort of special status in society, akin to that of an unelected, benign monarch.
Unfortunately for them, we live under a constitution where the president enjoys no such privileges. In our democracy, the president is a servant of the people, and he must be held to account for the performance of government.
Of course, the president can earn respect through his actions, but he can lose this respect just as quickly by failing to live up to the public’s expectations.
One thing is certain: respect cannot be earned by attempting to intimidate a cartoonist into producing flattering drawings through a string of vexatious lawsuits. If anything, the lawsuit degrades and humiliates Zuma, showing just how thin-skinned, humourless and image-conscious he is beneath his devil-may-care exterior.
What Zuma is asking the courts to do is to decide just how cutting satire should be before it is banned from publication.
Would a cartoon depicting Zuma twisting Lady Justice’s arm behind her back be acceptable? Would a slap across the cheek be going too far? Perhaps an image of Zuma and Lady Justice earnestly discussing his corruption case over steaming coffee would make the grade?
Zuma’s thin skin should not be sufficient grounds for threatening the freedom of expression. He has been driving the ruling party’s demands for a media tribunal, openly contradicting other senior party members who have attempted to shelve the idea.
And now, in what will amount to the most ludicrous action by a head of state since P W Botha ruled, he will go to court to whimper about a cartoonist.