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.

Thabo Mbeki = George W. Bush?

In idle moments I have often wondered whether - despite the obvious ideological differences - there are not perhaps remarkable similarities between President's George W. Bush and Thabo Mbeki. Both have a messianic streak and both seem to have a tendency to ignore difficulties that do not fit into their ideologically tinted world view. Both also seem incapable of admitting a problem or a mistake, perhaps because they think they alone have a grip on the "Truth".

President Mbeki for a long time tried to get people to rethink the link between HIV and AIDS because it was untenable for him to admit that many South Africans would die because they had sex with lots of people (as if that in and of itself was a bad thing). Bush is still pretending things are going well in Iraq, which makes one fear for his sanity, really.

I was struck again by the possible similarities, reading Paul Krugman's column (subscription needed) in the New York Times this morning. Money quote:

I wrote about the Bush administration’s “infallibility complex,” its inability to admit mistakes or face up to real problems it didn’t want to deal with, in June 2002. Around the same time Ron Suskind, the investigative journalist, had a conversation with a senior Bush adviser who mocked the “reality-based community,” asserting that “when we act, we create our own reality.”

People who worried that the administration was living in a fantasy world used to be dismissed as victims of “Bush derangement syndrome,” liberals driven mad by Mr. Bush’s success. Now, however, it’s a syndrome that has spread even to former loyal Bushies.

Yet while Mr. Bush no longer has many true believers, he still has plenty of enablers — people who understand the folly of his actions, but refuse to do anything to stop him.

In South Africa, the media and commentators have not often focused on the enablers who have made it possible for Presidnet Mbeki to get away with his flirtation with Aids denialism, for example. Yes, Manto Tshabalala-Msimang have rightly been vilified, but what about all the other cabinet ministers - including Trevor Manual, darling of the chattering classes - who at the height of the Aids debate refused the answer the question of whether HIV caused Aids. We forgave him because he cut our taxes.

And do we hear enough about Mbeki's advisers who clearly do not always confront him with the hard facts needed to make clear headed decisions? In a way we are all President Mbeki's enablers because we vote for his party and we treat him with respect because he is our head of state.

For those of us who are white, it may be even more difficult not to show respect because given our racist history, showing disrespect to the country's leader may easily be interpreted as showing disrespect towards all black people.

I am often torn between an impulse to show respect for my President and all the good things he has done, and shouting at the rooftops at the dangerously arrogant and denialist actions of my President who may well have contributed to the death of hundreds of thousands of South Africans from Aids related illness.

If one keeps quiet, does one not merely act as an enabler to a dangerous man? If one shouts and screams, does one not merely align oneself with the white whiners yearning for the return to apartheid?

What the Vlok is going on?

It is tempting to crack jokes about the decision of the National Prosecuting Authority (NPA) to prosecute Adriaan Vlok for the attempted murder of Frank Chikane, who at present is Director General in the Presidency. (“Poor Vusi Pikoli will have to wear waterproof shoes for the foreseeable future.”)

But it is not really a laughing matter. Vlok was rightly a much despised figure when he was the Minister of Law and Order from 1986 to 1991. He seemed to try to imitate President PW Botha by swaggering and threatening the “terrorists”. Either because of direct orders by Vlok or Botha, or because of hints and winks, the police hit squad activity increased during his tenure.

Many people were killed by the state during this period.

Vlok actually applied for and received amnesty for ordering the blowing up of Cosatu House and the headquarters of the South African Council of Churches. It was therefore a bit of a surprised when he washed the feet of Frank Chikane as part of his request for forgiveness for ordering the poisoning of Chikane, because he did not apply for amnesty in this regard.

The deal struck between FW De Klerk’s National Party and the ANC was to create a Truth and Reconciliation Commission which would give amnesty to any person who committed criminal acts, provided that those acts were associated with a political objective and the applicant had made a full disclosure of all relevant facts.

Implicit in this compromise was the understanding that those perpetrators who failed to apply for amnesty or failed to make a full disclosure could be criminally prosecuted. Some high profile prosecutions – Eugene de Kock (convicted) and Wouter Basson (acquitted) – followed, but most people who did not apply for amnesty were not prosecuted.

One reason for this was that it is difficult to prosecute those – like Vlok, Magnus Malan or De Klerk – who may have given direct or indirect orders to underlings to torture or murder opponents of the apartheid state. Such illegal orders were never given directly but were given obliquely if at all. Often Ministers merely had to hint that steps had to be taken to deal with a person or a situation for underlings to revert to torture or murder.

Of course, Ministers knew their hints would result in criminal acts, but liked the fact that they could not be directly held responsible for those deeds. That is why the claims by Mr. FW de Klerk and his supporters that he never ordered people to be killed or tortured or never knew these things happened should be taken with a pinch of salt. Even us ordinary people who only read the Weekly Mail knew people were being tortured and killed. Perhaps De Klerk and others are not legally responsible, but morally, they have a lot to answer for.

It is in that context that the prosecution of Adriaan Vlok should be welcomed. He clearly did not make a full disclosure about his activities as Minister of Law and Order and even recently has shown a remarkable lack of knowledge about what happened in his department while he was Minister of Law and Order. In his telling, he was an ignorant bumbling fool who did not know half of what was going on in his Department.

Of course, it would be problematic if he was the only one prosecuted for apartheid era crimes. The NPA is constitutionally required to make decisions about who should be prosecuted without fear favour or prejudice. This means where sufficient evidence exists, the NPA should also prosecute others who committed crimes in the name of political ideologies during the nineteen eighties and early nineties.

Cynics might well argue that the prosecution of Vlok constitutes a clever attempt by the NPA to bolster its image with its critics, who feels the NPA is used to carry out a vendetta against Jacob Zuma and other ANC politicians. By charging apartheid era politicians, the NPA can appear to show that it really acts against everyone.

To silence such cynics, it its important that the NPA also prosecute other perpetrators who did not make full disclosures to the TRC. Only time will tell whether this will indeed happen.

Xolela Mangcu on Vlok and prosecution

I find myself agreeing (again) with Xolela Mangcu's column in today's Business Day. Money quote:

I sometimes find the hypocrisy in the white community quite astounding on these matters. The very same people calling for Jacob Zuma to be prosecuted for the sake of the rule of law or for Zimbabwe’s Robert Mugabe to be taken to The Hague turn around, without batting an eyelid, and plead forgiveness for Adriaan Vlok and Johann van der Merwe.

But where is the sense of justice for the families of Siphiwo Mthimkhulu and his comrades? Does this not reveal a certain callousness about black life if consideration is given only to the perpetrators.

I am not big on punishment, but if we are to have it then we must be evenhanded in its application.

Happy 89th birthday!

It's very kitsch, but no rules apply to Nelson Mandela, so happy birthday Madiba!

Should sins of the wife be visited on husband?

The wife of ANC Western Cape secretary Mcebisi Skwatsha (pictured) has paid a fine of R1 000 after pleading guilty to theft. Nolusapho Skwatsha admitted reversing the transactions of four people who had paid their television licences at the post office at parliament, where she was employed. She then pocketed the money.

Skwatsha initially represented herself during the proceedings, but a later application for a Legal Aid Board lawyer was granted. Her attorney would not comment when contacted by the Cape Times.

Now, I am not a great fan of Mr. Skwatsha, who is part of the Africanist faction in the Western Cape ANC and who seems to be a rather ungenerous and shifty individual. But should Mr. Skwatsha be judged and condemned for something his wife did?

When the wife of Deputy Minister of Foreign Affairs Aziz Pahad was twice caught for drunken driving, I felt quite sorry for the guy. He was obviously married to an alcoholic, so I did not feel he should in any way be blamed for what his wife did.

Why do I then think this case is different? Is it because I do not like Mr. Skwatsha, or is it because the crime here was a premeditated act of dishonesty perpetrated by someone who probably got a job at the post office in Parliament because of her husbands connections?

The theft by his wife does and should reflect badly on the Cape secretary of the ANC and on the ANC itself. After all, Mr. Skwatsha chose to marry a woman with a deeply flawed grasp of public morality. At best it reflects badly on his judgment of character. At worst it suggests that he might share the lack of public morals displayed by his wife.

She also worked in the post office at Parliament and perpetrated the theft there. This suggests that she was placed in a position of trust because of her connections with the ANC and Parliament.

If the ANC had a better grasp of what kind of public morality was expected from public officials, Mr. Skwatsha would issue a statement to say that in the spirit of ubuntu he stands by his wife, but that what she did was despicable because it completely abused the public trust placed in her and that the ANC condemns such dishonesty in the strongest possible terms.

So far no such statement has been issued. Instead Mrs. Skwatsha first denied that she was married to the ANC secretary and then refused to answer the phone. This suggests that Mr. Skwatsha is not wanting to deal with the matter as he will probably claim it is a private matter that has nothing to do with the voters.

Of course being married to a convicted thief must be embarrassing - especially if one is a public official and a political leader. The only honorouble way to deal with it is to deal with it. By hiding away one may well create the impression that one is complicit with one's spouse or that one shares the criminal attitude of one's spouse. Surely that is not the impression Mr. Skwatsha wants to convey?

Zuma's double standard

Is it just me or has Mr. Jacob Zuma once again demonstrated spectacular double standards regarding the criminal justice system? In an interview with the SABC last week Zuma argued that criminals seem to have too many rights and that they should not be let out on bail as easily as they are.

But I always thought Mr. Zuma was of the firm belief that every person is “innocent until proven guilty? He has said so often enough.

But if one is innocent until proven guilty one should surely not be locked up until one is convicted of a crime – unless it is very clear that one poses a danger to society? And that is exactly what the rules on bail (properly interpreted) now provides for.

Why tighten up bail laws unless one is of the view that, yes, all people are innocent until proven guilty but some are more innocent than others.

The problem with this mantra, of course, is that unless one is called Jacob Zuma or is a politician with strong connections to an influential political party, one is never innocent until proven guilty.

Dina Rodriguez was never thought of by Mr. Zuma or anyone else as innocent until she was convicted. And let’s face it, I would be rather surprised to hear that Mr. Zuma has always been of the firm view that Wouter Basson was innocent and remains innocent because he was never convicted of a crime.

This is why I have such a bee in my bonnet about the way this principle – which is based on the notion that one must be presumed innocent by a court of law until the state has proven the case against one – is abused by politicians.

Mr. Zuma and others have been using this important legal principle to try and stop ordinary people from making value judgments about their character. In effect they claim that our standards for judging a politician must be lowered to such a degree that we can only criticize them in any way after they have been convicted of a crime.

But there is no legal reason why members of the public – as opposed to judges hearing a case – cannot make adverse assumptions about the character of, say, Mr. Zuma or Judge President John Hlophe or Robert McBride.

By indicating that bail conditions should be tightened for others who are also “innocent until proven guilty”, Mr. Zuma is really showing his hand. What he believes in (like most politicians caught with their hands in the till or their pants down – is that he is innocent even if proven guilty.

Criminals on the other hand – those who were charged correctly – must be locked up even before they are convicted.