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.
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.
30 November 2009
The Presidency last week announced that President Jacob Zuma has taken a decision to appoint Advocate Menzi Simelane as the new National Director of Public Prosecutions. Simelane’s appointment is effective as from tomorrow, 1 December 2009.
Advocate Simelane has a Baccalaureus Procurationis (BProc) and LLB degrees from the University of KwaZulu-Natal. He served pupilage at the Durban Bar. He is a member of the Johannesburg Bar where he practiced. He previously served on the Board of South African Tourism and the Gauteng Tourism Agency. In addition he served as the Commissioner of the Competition Commission from 1999 to 2005. He became the Director-General of the Department of Justice and Constitutional Development in June 2005 until he was appointed as the Deputy National Director of Public Prosecution at the National Prosecuting Authority (NPA) in October 2009. Read More…
Zuma has consulted oppostiion parties about the judges he wishes to appoint to the Constitutional Court. They have leaked the names on his preferred list, saying he wants to appoint Eastern Cape judge Johan Froneman, the Supreme Court of Appeal’s Justice Chris Jafta, Southern Gauteng High Court judge Sisi Khampepe and North West judge Mogoeng wa Mogoeng.
Now Zuma, according to his office, is not impressed, saying he was “disappointed” to learn that parties were acting “outside established processes”.
Wow. Wasn’t it Zuma who announced his preference for Sandile Ngcobo for the position of Chief Justice before consulting the opposition as required by law?
There are no laws or regulations saying that the opposition should not discuss the nominations publicly, so I am a little taken aback at his pique.
With this tweet, Helen Zille signalled the end of her party’s annoyance at President Jacob Zuma’s failure to consult properly prior to announcing that he wanted Judge Sandile Ngcobo to head the Constitutional Court. Zuma made the official announcement today.
THE Judicial Services Commission has scratched Cape Judge President John Hlophe from its shortlist for four vacancies on the Constitutional Court. But the grounds on which it has done so remain opaque.
If it was because of his discussion with two of that court’s judges about how Jacob Zuma was being victimised in a matter before them, the JSC has contradicted itself.
On the one hand, it has said that Hlophe’s behaviour was insufficiently serious to warrant a hearing. On the other it is saying it was sufficiently grave to disqualify him from a seat on the highest bench in the land.
Surely the JSC should provide reasons for its decision to settle this burning question?
The judges who were shortlisted were Johan Froneman, Raymond Zondo, Mogoeng wa Mogoeng, Mandisa Maya, Sisi Khampepe, Leona Theron and Chris Jafta.
FORMER Judge Johann Kriegler’s decision to challenge the JSC’s decision not to hold a hearing into the conduct of Judge John Hlophe and the judges of the Constitutional Court has quickly descended into a race row.
Which is a pity. Cyril Ramaphosa resigned from Freedom Under Law, the body that Kriegler is using to challenge the JSC’s decision saying he had not been consulted. Fair enough.
But JSC Dumisa Ntsebeza played the race card, saying: “It is impossible to live with the very obvious condescending attitude toward black people which has become a repeated theme in his [Kriegler's] statements.”
Really? My experience of Kriegler is that he does not mince his words. Like most judges he is condescending to everybody. Just ask anyone of any race who covered the 1994 election when he was chair of the IEC.
What is far more important is to deal with the substance of Kriegler’s objection which is that there was a dispute over fact which will not now be resolved one way or the other.
For the justices of the Constitutional Court and a provincial Chief Justice to be at odds over the facts is a serious problem. Exactly the sort of problem which the JSC ought to resolve, lest the stain remain on the judiciary.
This is what has prompted Kriegler to warn that we face “the biggest threat to rule of law the country has experienced since it emerged from darkness”.