President Mbeki owes us an explanation

The suspension by President Thabo Mbeki of Vusi Pikoli, the National Director of Public Prosecutions (NDPP), is a potentially earth-shattering event for our democracy. In the present political climate in which suspicions thrive and every action by the President will rightly or wrongly be viewed as a move in the ongoing succession battle, the Presidential interference in the administration of justice must be deeply worrying.

The Prosecuting Authority is a creature of the Constitution, which requires that it exercises its functions “without fear, favour or prejudice”. In other words, it is constitutionally bound to act independently and not to show any political or other bias in its day-to-day work.

However, this constitutional independence is not absolute. The National Director must formulate a prosecuting policy in concurrence with the Minister of Justice and the Minister also exercises final authority over the prosecuting authority. This means that the prosecuting authority must set policy guidelines in accordance with the policy positions of the government of the day, but must otherwise operate free from interference by either the Minister or the President.

In the event that either the Minister or the President is not happy with the decisions taken by the National Director, or where they fight and disagree with him, neither of them have the legal right to fire him. He is entitled to tell them to go to hell if he wants to.

This is clear from the National Prosecuting Authority Act of 1998, which limits the power of the President provisionally to suspend the National Director or to remove him from office. The President can only remove the National Director from office for:

• misconduct;
• on account of ill health;
• on account of incapacity;
• or on account of the fact that he is no longer a fit and proper person.

The clear implication is therefore that the President can only suspend the National Director if he has a reasonable suspicion that one of the factors set out above are present. The President then has to institute an inquiry aimed at establishing the existence of at least one of the objective facts set out above. Parliament must then endorse the existence of one of these factors and approve the removal from office before it can become final.

It is therefore deeply troubling that the statement issued by the Presidency makes no mention of incapacity, ill health or misconduct, but merely claims that there has been an irretrievable breakdown in the working relationship between the National Director and the Minister of Justice and Constitutional Development, Brigitte Mabandla.

The law makes clear that President Mbeki cannot fire Mr. Pikoli because of such a breakdown of trust. Morever, to fire Mr. Pikoli because he is not “fit and proper person” – also used in the Constitution as one of the reasons for impeaching a judge – would be difficult to do because the term has a restrictive meaning and suggest at least that the person targeted has done something illegal or extremely dishonest.

This means the only possible reason for the suspension and the possible firing of Mr. Pikoli is that he has been guilty of misconduct. For this to stick legally, the President will have to show that Mr. Pikoli had failed to follow the provisions of the enabling act and had, for example, failed to furnish the Minister with information about the exercise of his powers as required by section 33 of the Act.

In the absence of such proof we would be entitled to think that the President has overstepped his legal powers and has interfered with the administration of justice for political reasons. If it is correct that the President wants to fire Mr. Pikoli because the latter has not co-operated with the police to allow the Scorpions to report to the Minister of Safety and Security, Mr Mbeki might not have a legal leg to stand on.

This is because the National Prosecuting Authority Act has not yet been amended and there is therefore no legal duty on Mr. Pikoli to obey instructions to deal differently with the Scorpions as there is no legal basis for such an instruction. As an independent institution the prosecuting authority should not take instructions from the President, the Minister of the Commissioner of Police.

The statement from the Presidency suggests that the President and the Minster do not understand or support this important constitutional principle and believe that Mr. Pikoli has a duty to take orders from them. This is unfortunate as it creates the impression that the President and the Minister is interfering in, and thus undermining, the administration of justice in this country.

In any event, the cryptic announcement of the Presidency leaves open more questions than answers. The President owes it to the country to take us into his confidence and tell us the real reason for the suspension. If he fails to do that, most reasonable people will have good reason to suspect that he is abusing his power for political gain and that the whole saga is in some way or another related to the succession battle in the ANC.

Sisulu lost the plot

I have always liked Housing Minister Lindiwe Sisulu. She seemed intelligent, hard-working and, for a cabinet minister, not without a modicum of wisdom and compassion. Her recent statements on the N2 Gateway fiasco have been so astoundingly stupid and arrogant that I have now changed my mind.

In Parliament on Monday she threatened to remove protesters from Joe Slovo informal settlement from the housing waiting list.

If they choose not to cooperate with government, they will be completely removed from all housing waiting lists.

There are so many things wrong with this statement that it is hard to know where to begin. Section 26 of the Constitution says that everyone in South Africa has a right of access to housing and that the state has a duty to realise this right progressively, given the available resources. Moreover section 33 of the Constitution states that “everyone has the right to administrative action that is lawful, reasonable and procedurally fair”.

This means that neither the Minister nor her officials can legally remove anyone from a housing list that is supposed to give people a shot of accessing housing, without a fair hearing. I can direct the “honourable” Minister to the judgment of the Supreme Court of Appeal in Permanent Secretary, Department of Welfare, Eastern Cape, and Another v Ngxuza and Others.

When the Eastern Cape government unilaterally cancelled the disability grants of thousands of residence, the SCA in that case slammed the Eastern Cape government and declared their actions illegal. Writing for the Court, Justice Edwin Cameron commented that the province had:

Conducted the case as though it was at war with its own citizens, the more shamefully because those it were combating were the least in its sphere ... The applicants formed part of a group of South Africans with the least chance of vindicating their rights through the legal process.

For the Minster to think that she has a right to unilaterally take away the rights of the very citizens who elected her into office is a shameful disgrace. What has happened to that much abused phrase “innocent until proven guilty”. I assume Mr Jacob Zum and his supporters are as we speak preparing statements of outrage about this abuse of power by the Minster.

But the statement of the Minister is shockingly disrespectful of the Constitution in another way. She seems to suggest that individuals will be punished and their rights expunged if they fail to cooperate with the government. But the Constitution guarantees for everyone the right to freedom of expression, freedom of association and freedom of conscience, which means we have a right, yes a right not to agree or cooperate with the government.

The Minister’s statement speaks of an arrogance that has sadly become all too pervasive among government officials. It reflects an attitude that government knows best and that ordinary people should just shut up and follow government orders – no matter how detrimental those orders may be for a particular individual.

The people of Joe Slovo are not stupid. They do not trust the government because the government has already lied to them regarding the first phase of the N2 Gateway Project. People were promised that they will be moved into the new houses, but this did not happen because they could not pay the high rents being charged.

The erstwhile neighbours of those poor unfortunate souls are now being promised that they will be returned to the permanent structures to be erected on the cleared land, but these structures, we know, will be showcase housing for the benefit of Fifa and the tourists driving from the airport, so they will cost a lot of money and will therefore not be affordable to most of the Joe Slovo residence.

The Minister knows this, her officials know this and the protesting residence know this too. No wonder they are protesting and no wonder they do not want to cooperate. Only people without any self respect agree to cooperate with a government hell bent on taking away your rights.

Judge errs in gagging Mail and Guardian, but truth reavealed

If the SABC internal audit report is to be believed, the head of the SABC’s legal services, Mafika Sihlali, is a fraudster and a thief of the most brazen kind. It is clearly in the public interest that such explosive allegations made by the most credible of institutions – the SABC internal auditing committee – be aired in public.

After all, we pay our TV licenses and have a right to know about serious, credible allegations of theft and fraud at the public broadcaster. However, Judge Lettie Molopa, of the Pretoria High Court disagrees. In the early hours of Saturday morning she granted an interdict against the Mail and Guardian prohibiting it from publishing details of the internal report.

She argued that Mr. Sihlali did not have sufficient time to respond to the allegations made in the report. Focusing on the potential harmful effect of publication on Sihlali she said: “No doubt once the article is published it will definitely destroy the applicant.” She said it was “just and equitable” to interdict the Mail and Guardian.

I find the logic of the learned judge, well, spectacularly flawed.

It is true that the findings in the internal audit report is damning, as it contains recommendations that Mr. Sihlali should be criminally prosecuted for theft and fraud. If the findings of the report are correct, Mr. Sihlali should surely also be barred from ever acting as an attorney again. The report finds prima facie evidence that Sihlali has defrauded the SABC of almost 2 million Rand. The fraud allegedly started only 3 weeks after he started working at the SABC.

He did this by allegedly irregularly outsourcing work to his own law firm, charging double for VAT, claiming double payments for work and giving work to his friends.

Troubling also is the fact that the Head of the SABC, Dali Mpofu (called a compulsive, sophisticated liar by Winnie Mandela in 1992) shares directorships with Sihlali in nine different companies, which are active in financial services, advisory services and mining. In addition, SABC chairperson Eddie Funde and Pearl Luthuli, the head of SABC3, share a directorship with him on Onetel, a publicly listed telecommunications company.

So far neither Mpofu or the SABC Board has taken any action against Sihlali despite the existence of the report. This seems fishy in the extreme.

In this context the judgment from the High Court seems deeply troubling. It seems to me not to have taken into account or misinterpreting the recent judgment of the Supreme Court of Appeal in Midi Television (Pty) Ltd vs National Directorate of Public Prosecutions.

In that case Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In this case, Judge Molopa decided that the interest of one person – a servant of the people working for the public broadcaster who have been convincingly implicated in criminal activity – should weigh heavier that the interest of the 45 million South Africans who have a right to know how their TV licence fees and taxes are spent and how the public broadcaster deals with corruption in its midst.

This she could only do by not giving any weight to the interest of the 45 million ordinary South Africans and giving far too much weight to one (relatively important, politically connected and influential) person’s interests. It seems to me that this judgment shows a troubling contempt for the masses of the people and our Constitution, and a surprising loyalty to rich, well-connected elites.

It is profoundly in the public interest (and in the interest of democracy) for the M&G to publish such serious allegations. Mr. Sihlali could have been given the opportunity to respond to the allegations next week, but at some point surely the information would become known and he would suffer the consequences. The mere existence of the report hurts his reputation - the Mail and Guardian is merely reporting on facts but are now punished for this by the Judge. To give an interdict now only postpones the inevitable publication of the allegations that Mr. Sihlali is a crook. Why interdict the paper after it was printed except to teach the Mail and Guardian a lesson?

If Mr. Sihlali did not want to have his reputation destroyed, he should not have acted in a way that provided prima facie evidence of criminal activity to the audit committee. It is not for a judge to protect the actions of such a public servant from public scrutiny, because it sends a signal that the judge does not respect freedom of the media and thinks that the media did something wrong by exposing the credible findings of theft and fraud.

This seems to suggest that the Judge is untransformed and that she has not internalised the values of openness and freedom enshrined in the Constitution. It would be a good thing to send her on a crash course to familiarise herself with the values of the Bill of Rights. I, for one, would be happy to assist if she was at all interested in learning more about the Bill of Rights.

Good news for press freedom

Some times the good guys do win. The Department of Transport lost their bid in the Pretoria High Court today to gag Beeld newspaper from publishing information obtained from a leaked management report by the Auditor General on a network audit of the old NaTIS system.

The AG report apparently highlights “maladministration and poor governance” that led to security gaps in the new eNaTIS system. The Auditor General report highlighted “weak passwords and password policies" and "access by users to powerful utility files and even blank passwords allowing anyone to access the system”.

Sias Reyneke, SC, on behalf of Beeld, argued that the Department of Transport had known about the security problems since February when the Auditor General's report highlighted them – and probably longer – but nothing was done to fix them. "The press should not be blamed for blowing the whistle on the maladministration and poor governance," he said.

In his judgment judge Dion Basson said that the public's right to know about possible security problems with the new electronic traffic information system (eNaTIS) outweighed confidentiality concerns over the information. He dismissed the arguments of Minister Radebe's counsel, Pat Ellis, SC, that by publishing the story Beeld would put confidential information on security gaps in the old NaTIS and the new eNaTIS into the public domain, which could then be misused.

This is great news for freedom of the press. There has been a trend for the government and other aggrieved parties to run to the court to try and stop newspapers from exposing corruption and maladministration. Often this is done after the newspaper – like Beeld in this case – did the right thing by first approaching the aggrieved party for comment.

The outcome in this case is not surprising because it seems to be based on the precedent setting judgment of the Supreme Court of Appeal in Midi Television v Director of Public Prosecutions. Justice Nugent, writing for the full bench, emphasized the importance of freedom of expression for our democracy and developed a very strict test to decide when the exercise of press freedom could be restricted to protect another right or interest.

Judge Nugent argued that a publication could only be gagged if the prejudice that the publication might cause is demonstrable and substantial and there is a real risk that the prejudice will occur if publication takes place. Mere conjecture or speculation that prejudice might occur will not be enough. Even then the court would not gag a paper unless it believes that the disadvantage of curtailing the free flow of information outweighs its advantage.

In making that evaluation the court will not only consider the interests of the newspaper but, more important, the interests of every individual in having access to information. The interest of the public to know would be even more important where the state is trying to stop the publication of embarrassing information and where they would not be able to show that the publication would infringe any of the other rights in the Constitution.

In the Beeld case it was clearly far more important for Joe Public to be informed about the disastrous implementation of the eNaTIS than for the Minister to be saved from acute embarrassment.

The Minister should, however, be taken for task for launching the court application in the first place. In a democracy it is our right as citizens to be informed by the media about both the good and the bad things a government does. By trying to stop us from learning the truth about the eNaTIS balls-up, the minister was attempting a cover-up. He should be ashamed.