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Statement by Ray Hartley, editor of the Sunday Times
THE minister of police has conceded that the arrest of Sunday Times journalist Mzilikazi wa Afrika was wrongful and has agreed to pay him R100 000 in damages and the newspaper’s legal costs.
Wa Afrika was arrested just days after the Sunday Times published a story exposing then police commissioner Bheki Cele’s involvement in a dodgy lease deal for new police headquarters in Pretoria.
Cele has subsequently been fired following several investigations which upheld the truthfulness of the story.
Wa Afrika was denied access to legal counsel for 48 hours. He was transported by police van to Mpumalanga without the knowledge of his lawyer and interrogated in the early hours of the morning.
No case was ever brought against Wa Afrika in court, and the Sunday Times believes that he was the victim of an outrageous act of intimidation by the police.
“This was a full-frontal assault on freedom to report on corruption and it is comforting that the minister has acknowledged the arrest was wrongful. However, no amount of money can make up for the pain and suffering experienced by Mzilikazi,” said Sunday Times editor, Ray Hartley.
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.
MOKOTEDI Mpshe – the man who decided not to prosecute Jacob Zuma on corruption charges on the eve of the 2009 election – has been appointed acting judge in the North West.
How did he get the job? Well, it seems he was being rewarded for his highly questionable decision because it was none other than Jeff Radebe, the Minister of Justice, who is said to have lobbied for his appointment.
This stinks of cronyism and the Law Society of South Africa has spoken out against it.
The august body wants the appointment, which it says hints at government interference in the judiciary, suspended.
“The LSSA joins the general council of the bar and the JSC in expressing grave concern at the appointment of a former acting National Director of Public Prosecutions as an acting judge.
“The LSSA agrees with the above organisations that it is undesirable for a government official – while still retaining his civil service position as a public prosecutor – to be a member of the judiciary. This offends the concept of judicial independence,” it said.
MENZI Simelane, the new head of public prosecutions, has moved to limit the media’s ability to interview prosecutors, issuing a directive that all such contact should take place only with “prior authorisation”.
The first effect of this ill-considered directive will be to undermine the vital practice of court reporting.
Every day throughout the country prosecutors and defence advocates talk to the media about the cases they are involved in.
These discussions are essential for reporting. They concern the clarification of legal language used in court and the checking of facts by reporters.
This move will be very damaging for court reporting which is vital to making legal proceedings transparent, a basic requirement for democracy.
Simelane may have different motives for this clamp down. He is, after all, a man appointed on the strength of his conviction that prosecutors ought to account to political masters for their decisions.
In light of the slew of embarrassing prosecutions of political leaders, several of whom have returned to prominence under the reign of President Jacob Zuma, his motive could be to limit the damage done by such prosecutions.
Cynics might wonder aloud: Could it be that Simelane believes he can keep such matters out of the public domain while he and his political masters nip them in the bud?
Whatever his motives, the move to ban open contact between journalists and prosecutors will have serious negative effects on the transparency of the courts.
Government should be encouraging this relationship so that the public continues to be aware of the successes the criminal justice system is having in chasing down many serious criminals.
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…
AS the star witness in the trial of Jackie Selebi, Glenn Agliotti was supposed to deliver the head of his friend on a plate. But, as these quotes illustrate, it got a little complicated as he wilted under cross-examination.
Agliotti spoke of how he was given an email by Selebi regarding an email sent to the Scorpions. The prosecution must have been happy with his fascinating insight into shady dealings:
“I was playing golf when the accused [Selebi] phoned me. We met in the parking lot at the Makro in Woodmead [Johannesburg] where I parked next to his car. I got into the back of his car and he gave me the document.”
Also intriguing was Agliotti’s explanation of how he pocketted US$1 million he obtained from the Kebbles for introducing them to Selebi.
“I told him I used the accused’s name to receive payments from the Kebbles. I knew the accused would be upset. I didn’t want the accused to know the amount of money I asked the Kebbles for.”
And he told how he had a hotline to the commissioner in the event of unwanted police attention. When he was boarding a flight to Mauritius in 2004, a policeman asked him for his home address.
“From the aircraft I called the accused to tell him what had happened. I said it was rather embarrassing, especially in front of my kids and I left it at that. The accused [Selebi] asked for the police officer’s name, but I didn’t know.”
So far, so good. Then, under cross examination, he shifted his position admitting he had lied.
“Yes, I do lie from time to time,” he said to the amazement of the court.
Said Selebi’s advocate, Jaap Cilliers: “Why did you lie to his Lordship?”.
Agliotti replied: “I’m sorry, I never meant to lie.”
What about those confusing and contradictory statements about bribing Selebi?
AGLIOTTI TO THE NIA
“I maintained all along that I never bribed Selebi.”
AGLIOTTI TO THE SCORPIONS
“I have never maintained that I never bribed Selebi.”
AGLIOTTI TO THE COURT
“[The change came] after my advocate explained to me the difference of bribery (sic). The actual law phrase of bribery I am not fully au fait with and I don’t fully understand it.”
The explanation for the wild contradictions must rank as Understatement of the Year:
“There have been inconsistencies in my statement. They are not intentional.”
While no-one wants workers to go unprotected from the ravages of unfair management, you have to ask yourself if we haven’t gone too far in this country.
It is not possible to fire soldiers who went on strike (illegal), rampaged violently, including setting police vehicles alight (illegal, I think) and mounted an assault on the Union Buildings, the seat of government.
In most countries, they would have been taken out back and machine-gunned.
In SA we must hold CCMA hearings where soldiers complain about having to sleep in bunk beds. What next? Will they complain that its unfair that their lives are in danger when they are in combat.
God forbid we should ever have to fight an actuall war.
Somebody needs to fix this to bring some discipline back to this country.
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”.
THERE is no longer any doubt that Judge Nkola Motata was drunk when he crashed his Jaguar into a suburban garden fence.
Magistrate Desmond Nair pointed out that a reasonable person would have got out of his car to inspect the damage after such an accident.
But, said Nair, Motata “sat in the car instead of alighting from the vehicle to inspect the damage, sat slouched and slumped, appearing to be sleeping and slumbering”.
Then there were the audio recordings published first on our website in which Motata’s speech was slurred.
Said Nair: “If a picture told a thousand words, the audio recordings told ten thousand words.”
Motata’s conviction would automatically disqualify him from serving on the bench in any society with a properly functioning criminal justice system.
But are we such a country?
Last week, the Judicial Service Commission found that Judge John Hlophe’s conversations with fellow judges about a case in which he said the accused was being victimised were not worthy of an inquiry.
This despite a complaint laid at the JSC by the Constitutional Court, whose bona fides cannot be questioned.
Now the JSC has to deal with the Motata case. If the Hlophe matter was complicated, the Motata matter is simple.
He has been found guilty of the criminal offence of driving drunk. The fact of his criminal record alone should be sufficient to remove his robes.
But, more than that, he has shown appalling judgement, has lied under oath by claiming saying that he had only been drinking tea and has exhibited all the qualities of someone who belongs in the dock rather than on the bench.
The JSC must act with haste to restore the dignity of the bench.
