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.
THE killing of a man linked by police with a service delivery protest in Ficksburg has shocked the nation.
Andries Tatane was shot and beaten to death in full view of an SABC television crew. Video footage of the killing was broadcast on the SABC’s prime time news bulletin.
The incident has drawn widespread condemnation, including a strongly worded statement by the ANC’s Jackson Mthembu.
He said the incident could only be described “as resembling apartheid era police strong arm tactics, showing total disregard for human rights enshrined in the South African Constitution.”
It was a statement which is deserving of close examination.
Mthembu was juxtaposing the actions of the police with the protection of human rights contained in the constitution.
This is a long overdue repudiation of those in government and the police who appear to regard the constitution as an obstacle to effective policing.
This camp has held sway in government’s security cluster under the government of President Jacob Zuma.
One of their first acts was to re-militarise the police service, which they renamed the “police force”.
Ranks were dished out and commissioner Bheki Cele awarded himself the rank of “General” — Muammar Gaddafi was happy to settle for the lower rank of Colonel — and proceeded to stoke up within the police force the notion that they were to use their weapons more freely.
At the time, the move drew strong criticism from the ANC’s Kader Asmal, who wrote a letter to the Sunday Times in which he asked: “Has the Cabinet taken leave of its senses?”
Asmal went on: “I have news for them. If they want to travel along the road where law enforcement is perceived as the enemy of the people, they will have to deal with the Constitution. Under section 205, the police are described as a service (my emphasis) and under subsection (3), they are enjoined to uphold and enforce the law, which would involve strict adherence to the Constitution.”
Asmal was ignored and the bodies began to pile up. Some of these bodies were those of “suspected criminals” shot dead at road blocks and the public committed the cardinal mistake of shrugging and looking the other way.
What the SABC’s broadcast did was remind this country of the terrible consequences of a police force which believes itself to be a law unto itself.
Mthembu’s statement went on to criticise the SABC for broadcasting the images, which was a pity.
Tatane’s tragic death has woken this nation up to the extent to which the values of the new South Africa have been eroded by careless policy making.
It is time to return to the values that make us great.
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.
POLICE GUILTY OF DETENTION WITHOUT TRIAL
The prosecuting authorities in Nelspruit, Mpumalanga, have confirmed that they will not prosecute our journalist, Mzilikazi wa Afrika, due to lack of evidence for his so-called crime of “fraud”. Yet the police are refusing to release him from custody in flagrant violation of the spirit of the law. This is nothing less than the detention without trial of a journalist.
This confirms our suspicion that the heavy-handed operation against Mzilikazi was, from the outset, designed to intimidate him and the Sunday Times and had no serious legal purpose.
Mzilikazi’s legal representatives will tonight seek an urgent interdict in the High Court in Nelspruit to have him released from jail.
We are extremely concerned about the well-being of a second “suspect” in this case who was arrested more than 48 hours ago, but has not been brought to trial.
We call on President Jacob Zuma to instruct the Commissioner of Police, Bheki Cele, to call a halt to this campaign of intimidation and to release Mzilikazi as this abuse of justice is causing deep embarrassment to this country.
He must reassure the nation that never again will the law enforcement agencies of this democratic nation be used to intimidate journalists.
Editor: Sunday Times
A member of the Sunday Times staff, Mzilikazi wa Afrika, was arrested this morning. We have assigned lawyers to represent him and we are trying to establish what the charges against him are and where he is being held, so far without any success.
Our lawyers have been unable to get a clear answer from the police on either of these two questions.
I am deeply concerned at the fact that a journalist can be arrested and held at an undisclosed location in a country where the rule of law ought to apply.
He was arrested by a large number of policemen in an operation which was clearly designed to intimidate and I can only conclude that this was the true motive for what took place today.
Mzilikazi was one of the authors of the story which we published on Sunday about the rental of new police headquarters at the cost of R500m without following the usual tender proceedings. I hope, for the sake of our country, that he was not arrested on spurious charges in order to punish him for what he wrote.
We are doing everything in our power to have him released and we are doing all that we can to assure his well being.
What Julius Malema said about Jacob Zuma’s rape accuser was disgusting. Most South Africans probably thought it was in bad taste. But is it appropriate that a court of law should prohibit him from saying it as the Equality Court has done this morning? I don’t think so.
The court is effectively saying in the judgment that some comment, which is not defamatory or liable, should not be allowed by law. This is to impose a limitation on free speech via the back door.
The tragedy is that, because the comments were made by Malema most observors will laud this ruling because it fulfills their desire to have him put in his place.
But I think this ruling is not good for freedom of expression. Once you start making a list of what can or cannot be said in public that goes beyond the definition of race hate, you open the door to en endless stream of complaints by interest groups and you close down the public space.