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By Alec Hogg
Indomitable Glynnis Breytenbach’s autobiography Rule Of Law bogged me down in the early part with legal complexities. But around half way it magically transformed into a page-turner offering a fascinating perspective of what has really been going down in South Africa’s legal system.
Especially because so much of what the formidable former State Prosecutor (now DA Shadow Minister of Justice) shares is particularly relevant right now.
Abrahams’ appointment was vintage Zuma – the sudden elevation of a loyal unknown into a position of great public authority. Witness “weekend special” finance minister Des van Rooyen who was pulled from the obscurity of Parliament’s back benches, and destructive former mining minister Mosebenzi Zwane, parachuted into this key post from a junior ministry in the Free State province.
How Abrahams’ appointment was possible in the first instance is due to a now overlooked compromise agreement during negotiations for the new Constitution.
Under the previous system, state prosecutors were headed by the attorney general, someone promoted from within. This leadership role came from the public service advocates who work the state’s side in the court of law.
Post-1994, a newly minted body called the National Prosecuting Authority was created to operate outside traditional Department of Justice structures with its head, the national director, to be appointed by the country’s president.
Breytenbach recalls: “most prosecutors were dead set against the proposed new authority and new director because it would mean political interference in the legal system, which is not good for anybody.”
Their concerns proved to be warranted. Time and again.
The drawback of a political appointee was shown even with the first national director of the NPA, Bulelani Ngcuka.
A private attorney, his installation by president Thabo Mbeki was akin to a poacher being appointed game keeper. But that didn’t turn out to be a problem as Ngcuka was steadfastly independent. Rather, being an outsider, he was vulnerable to unwitting but serious errors of judgement.
Most famous of these was Ngcuka’s decision not to jointly charge then deputy president Jacob Zuma alongside his corrupt Arms Deal accomplice Schabir Shaik (who got a 15 year jail sentence). That error was later compound by his public statement that although the state had a “prima facie” corruption case against Zuma, it would not charge him because the NPA lacked confidence it could win.
Straight-shooting Breytenbach writes that Ngcuka, whom she liked, had been misled: “That crap must have come out the mouth of Leonard McCarthy, head of the Scorpions (and) close to Ngcuka. It made no sense – if you have a prima facie case you have to prosecute. That is what prima facie means! The advice Bulelani got was an oxymoron, more moron than oxy.”
When Ngcuka resigned to make his fortune in business, president Mbeki replaced him with Vusi Pikoli, a former deputy DG in the Department of Justice. Described by Breytenbach as “a breath of fresh air”, the week after Shaik was found guilty Pikoli re-instated corruption charges against Zuma, who had recently been fired as Mbeki’s deputy president.
Zuma’s subsequent surprising resurgence is well documented. Not as well remembered is how Mbeki suspended Pikoli because the NPA head was going after ANC stalwart but deeply corrupted SA Police Commissioner Jackie Selebi. In December 2008, despite a Parliamentary Commission of Inquiry recommending he be retained, Pikoli was fired ostensibly because he refused to sweep the Arms Deal under the carpet.
Thanks to the tireless efforts of forensic investigator Paul O’Sullivan, Mbeki’s intervention proved only temporary relief since Selebi was eventually sentenced. But for Pikoli, the decision to speak and follow his conscience rather than the party line cost him the job.
When describing Pikoli in her book, Breytenbach comes as close to gushing as you’ll find from this hard-as-nails inquisitor: “Vusi had such integrity. He was an astonishingly good national director. He took no shit, but nobody cared because he worked harder than any of us. He would be in his office at 5am working, and be there until late at night. He demanded punctuality. He put the P back in Prosecutor.”
The ConCourt judgement on Abrahams is imminent. New president Cyril Ramaphosa is playing it by the book, allowing the law to decide whether Zuma’s man is fit for office. Most lawyers believe he will be ejected. For a public baying for action against the State Capturing elite, Abraham’s departure cannot come soon enough.
Who replaces him, however, will be key to what happens next. To launch SA’s version of Brazil’s Operation Car Wash (which has jailed a popular former president and over 100 previously influential politicians and businessmen), the country needs a hard-working, knowledgeable and forceful leader at the NPA.
Those implicated in corruption – including many who are politically powerful – will be desperate to keep Vusi Pikoli away from an office he should have never been allowed to leave. Hopefully Ramaphosa, who alone makes the call, won’t be tempted into compromising with them in the name of ANC unity.
My bet? Cyril will do the right thing. Just like he did when reinstating finance minister Nhlanhla Nene and appointing Gupta-nemesis Pravin Gordhan to look after State Enterprises. By his actions, Pikoli has shown us he is made of the same incorruptible material. And he knows exactly what is required in this critically important role. Hope springs.
Cyril Ramaphosa: The Audio Biography
Listen to the story of Cyril Ramaphosa's rise to presidential power, narrated by our very own Alec Hogg.