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Prosecutor’s legal plagiarism helped get Jacob Zuma off the fraud hook – Herbst

CAPE TOWN — One of veteran journalist Ed Herbst’s greatest contributions to the common weal is by using his archival skill and institutional memory to cherry pick historical detail hugely relevant to current watershed events. Here the irrational, servile dropping of corruption charges against President Jacob Zuma by the National Prosecuting Authority, NPA, is illuminated by Herbst highlighting one such evanescent detail. That is the gross legal plagiarism of a foreign judges’ comments by disgraced prosecutor Mokotedi Mpshe, first exposed by journalists James Myburgh and Gill Moodie. Nobody took much notice of this part of Mpshe’s unattributed legal rationale for dropping the charges, or the Hong Kong judge’s fuming response when Moodie contacted him for comment. There was too much other nonsense going on. As always, the devil is in the detail. That detail today should lead to disciplinary action against Mpshe by his Society of Advocates, not to mention possible charges against him for interfering with the administration of justice. Let’s see what legal contortions his latest iteration, Shaun ‘’the Sheep” Abrahams, can conjure up when faced with a somewhat more difficult challenge… – Chris Bateman

Zuma’s lawyers concede. More of Zapiro’s cartoon magic available at www.zapiro.com.

By Ed Herbst*

The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took the leap over the abyss.

Pierre de Vos, NPA plagiarism scandal maybe hides a deeper truth, Constitutionally Speaking 16/4/2009.

This again is egg on the face for the ANC which manipulated Mpshe.

Bantu Holomisa News 24 13/10/2017

Veteran journalist Ed Herbst

In an article I wrote for the Media Online website in 2014, I stressed the important role that two online journalists, James Myburgh and Gill Moodie, had made in finding that the now utterly disgraced Mokotedi Mpshe was not only a dodgy prosecutor but a plagiarist as well.

The article contains a timeline of the sordid saga but the breakthrough in establishing that Mpshe was not trustworthy came when James Myburgh – a week after the Mpshe announcement that he was dropping all charges against President Jacob Zuma – revealed on Politicsweb that Mpshe had plagiarised the 2002 finding of a Hong Kong judge, Justice Conrad Seagroatt. Ironically, Seagroatt’s judgment was subsequently overturned on appeal.

This was a vital moment in the Spy Tape saga but print and broadcast reporters, probably overwhelmed by the turbulence of the ANC’s Tsunami of Sleaze and the never-ending tidal wave of ANC corruption stories, did not follow up on Myburgh’s exclusive.

Gill Moodie, whose Grubstreet website unfortunately no longer exists, did follow up. She managed to track down Judge Seagroatt who was not well-pleased by Mpshe’s actions:

“I would have expected proper attribution if only because of the professional legal tradition and convention. I have not seen the full text of Mpshe’s decision but relying on [James] Myburgh’s schedule of extracts, where Mpshe has directly lifted sentences or paragraphs from my judgement, it would have been proper to identify the author.

He correctly makes reference to principles enunciated by the respective judges in R v Derby Crown Court ex parte Brooks, Jago v District Court of N.S.W., Connelly v DPP, R v Latif, R v Martin, and R v Hui Chi Ming. Since the Acting National Director of Public Prosecutions structured his statement around my judgement – or so it seems on the basis of the extracts quoted by Myburgh – it was nonetheless sloppy and undisciplined to put the statement forward as emanating from his own reasoning.

Scathing judgment

The SCA was scathing about Mpshe in its recent  judgment:

Mr Mpshe had told Mr Downer that the timing of the service of the indictment had been his decision alone. In a supplementary affidavit he explained that he had been untruthful in that regard in order not to bring Mr Downer under the impression that he had been influenced by the then Minister of Justice and Constitutional Development. That explanation itself impacts negatively on Mr Mpshe’s credibility and on the soundness of his decision to discontinue the prosecution.

If anything affects the integrity of the NPA, it is [Mpshe] lying to a senior prosecutor. The admitted deception compellingly affects the credibility of Mr Mpshe’s motivation for discontinuing the prosecution. The court below was right to take into account against Mr Mpshe, the contradictory accounts as to who had made the decision to delay the service of the indictment.

The African National Congress being, by its own admission, corrupt to the core was blithely unconcerned about the fact that Mpshe had, legally speaking, proved to be of somewhat dubious ethical mien.

The ANC was determined – with Khwezi lawyer Kemp J Kemp and Michael Hulley, the overnight oil billionaire of Aurora Empowerment Systems notoriety, leading the charge – to use your money and mine –  in its ‘Stalingrad strategy’ to keep JZ783 out of jail.

It would be interesting to know how many millions of rands the Democratic Alliance has had to spend to bring justice to bear on behalf of all decent South Africans, given the fact that the ANC, through Jacob Zuma , has spent an estimated R10 million – contributed by tax-paying citizens – to avoid donning the orange overall.

The contribution that Myburgh and Moodie played in speaking truth to the intrinsically corrupt power of the African National Congress should, nevertheless, not be underestimated.

Indelible infamy

There was a sequel to the Myburgh and Moodie revelations because, thereafter, the then Justice Minister Jeff Radebe attempted to get Mpshe appointed to the bench as a reward for his endeavours on behalf of the ANC’s patronage network. Radebe got nowhere with the Deputy Judge President of the Western Cape, Jeanette Traverso and Mpshe was then appointed to the Land Claims Court. He gave that up in August last year which, in hindsight, was just as well given the excoriating SCA judgment a fortnight ago – a just reward for his indelible infamy which has  proved so costly  for this country.

Bantu Holomisa’s allegation that Mpshe was ‘manipulated’ by the ANC is telling but not surprising and the summary of his conduct in the Sunday Times yesterday  by Barney Mthombothi was succinct:

… the spineless Mokotedi Mpshe indulged Michael Hulley, Zuma ’s lawyer when he approached him with the so-called spy tapes. Instead of prosecuting Hulley for being in possession of stolen state property, Mpshe dropped all charges against Zuma. We now have a country facing ruin because of Mpshe’s feeble and unethical conduct.

It gives one some idea of how an innately corrupt African National Congress has suborned the policing and prosecutorial authorities – but Mpshe was just an early portent of what was to come.

As the SCA judges said of Mpshe’s successors:

It beggars belief that the present regime at the NPA, on its own version of events, saw fit to defend Mr Mpshe’s decision as being rational…. A question one might rightly ask is why it took so long to come to the realisation at the eleventh hour that the case for both the NPA and President Zuma had no merit.

Given the ineluctable corruption of the ANC it was inevitable that, after Mpshe’s departure, matters would become worse under Shaun Abrahams and other ANC minions and acolytes like Nomgcobo Jiba and Lawrence Mrwebi.

Anti-corruption inaction figures. More of Zapiro’s brilliant work available at www.zapiro.com.

All this to protect  a thief, a thug and a feral sexual predator who makes the aberrant behaviour of Harvey Weinstein and Roger Ailes look positively benign – Remember Khwezi.

Which speaks, in turn, to the norms and mores which the African National Congress, the Despot’s Democracy, now clearly regards not merely as normal and acceptable, but as desirable. The way the overwhelming majority of ANC MPs voted in the No Confidence Debate testifies to that. Ask Makhozi Khoza, she’ll tell you.

Mokotedi (Kokkie) Mpshe – gone but not forgotten. Had he had the moral rectitude, the ethical probity to discharge his bounden duty, South Africa would be a very different place today. Acknowledge, however, the enormous pressure the ANC was putting on him at the time. Pressure that he, loyal serf of the party that appointed him, accepted with appropriate droit du seigneur meekness and a soupcon of plagiarism.

All the indications are that the Beloved Country will continue to be blighted  for years to come as a result of his deplorable conduct.

The Fourth Estate remains though, as it always has been, a bulwark for democracy and the investigative reporting of James Myburgh and Gill Moodie into the plagiarism of Mokotedi Mpshe is proof of that.

  • Ed Herbst is a retired veteran journalist who writes in his own capacity.
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