Implementing the strategy, Zuma reached a R7.8 million settlement agreement with Pikoli to vacate the office and replaced him with Menzi Simelane, writes Molifi Tshabalala
In Thabo Mbeki: the Dream Deferred, Mark Gevisser says former president Thabo Mbeki was worried that his successor, Jacob Zuma, vied for an ANC presidency, which had propelled him into that of the country, as “a strategy to avoid prosecution” on his 783 charges, including corruption and racketeering.
Moreover, adds the biographer, Mbeki was “worried that Zuma and his backers had no respect for the rule of law and the South African constitution.”
Examples abound in this regard and the most important one is his recall, which constituted a bloodless coup because the governing party’s national executive committee, dominated by Zuma backers, had stopped him from continuing with his constitutional responsibility. Yet his resignation became effective four days later.
As a 2009 general election approached with no end in sight to Zuma’s case, some among his backers called for a political solution. Business Unity South Africa (BUSA) president Sipho Pityana, who has crossed the floor to a majority faction, led by ANC president Cyril Ramaphosa, claimed that continuing it was “not only extravagant but also reckless and foolhardy”.
In My Second Initiation, a memoir co-authored with multi-award winning political journalist Mandy Wiener, former National Director of Public Prosecutions (NDPP) Vusi Pikoli says several ANC leaders had approached him while on a suspension to convey a message that Zuma wanted “to talk to” him. “I refused, of course,” he explains, “I can only imagine that Zuma wanted to meet with me to discuss his own pending matter.”
Following his refusal, Pikoli says they fished whether he would reinstate the charges against the incoming South African president if he were to be kept as the NDPP, despite a finding on his fitness to hold office. His non-committal must have been the main reason former ANC deputy president Kgalema Motlanthe, who was not only holding the fort following Mbeki’s recall, but also chairing an ANC task team set up to help Zuma with his case, had removed him and the ANC in Parliament rubberstamped his decision, albeit he had been declared fit to hold office.
Acting NDPP Mokotedi Mpshe dropped the charges against Zuma on 6 April 2009, less than a month before the general election. Pikoli, whose removal was nullified by a high court, contends that he had been “put under political pressure” in his memoir.
Implementing the strategy, Zuma reached a R7.8 million settlement agreement with Pikoli to vacate the office and replaced him with Menzi Simelane, a former director-general in the justice department.
For his submission to and testimony before a commission of inquiry into Pikoli’s fitness to hold office on behalf of the government, chairperson Frene Ginwala had come down hard on Simelane. The damning criticism impinged on his fitness to hold office.
As a result, former justice minister Enver Surty had asked the Public Service Commission (PSC) to investigate his conduct and recommend an appropriate action. The PSC had recommended a disciplinary action. However, Surty’s successor, Jeff Radebe, had shrugged it off, thereby enabling Zuma to appoint him as the NDPP.
Contrary to Jacques Pauw in The President’s Keepers that Radebe “was a mere onlooker at the destruction of the NPA,” he was responsible for Simelane’s appointment. In nullifying it, the Supreme Court of Appeal (SCA) said Radebe and Zuma “were too easily dismissive” of the PSC’s recommendation.
Also responsible for Nomcobo Jiba’s appointment as acting NDPP, Radebe was in fact a chief president’s keeper, to borrow his description from Pauw. In 2007, Mpshe had suspended Jiba as deputy NDPP and instituted disciplinary proceedings against her for dishonesty, unprofessional conduct, and bringing the NPA into disrepute for her role in former state prosecutor Gerrie Nel’s arrest on concocted charges, including defeating the ends of justice and perjury.
It is alleged that Jiba, whose disciplinary hearing had taken different twists until the charges were dropped, had a score to settle against Nel, blaming him for Booker Nhantsi’s imprisonment. Her husband had stolen a client’s money.
Approached by Jiba for an intervention, Radebe allegedly raised her grievances with the NPA management. His intervention might have led to the parties reaching an outside court settlement and her appointments as head of the Specialised Commercial Crime Unit and that of the Special Investigating Unit before taking over as the acting NDPP.
By granting her husband a presidential pardon, Zuma had made Jiba more beholden to him. No wonder the NPA had sided with the former president to oppose the Democratic Alliance (DA) in its concerted effort to have the charges against him reinstated with her at the helm.
The charges were eventually reinstated. Therefore, Zuma’s strategy to use the presidency to avoid prosecution has failed.
Having captured the NPA and, by extension, the Hawks (headed by retired lieutenant-general Berning Ntlemeza, whom a high court ruled that lacked “integrity and honour”), former Public Protector (PP) Thuli Madonsela must have been the only problem left for Zuma and his clients to evade accountability. Therefore, her incumbent successor, Busisiwe Mkhwebane, must have been brought in to solve the problem, thereby turning her into one of the president’s keepers.
In her report entitled Secure in Comfort, Madonsela had ordered Zuma to repay a portion of non-security features, including a chicken run and a swimming pool (otherwise known as a ‘fire pool’), at his homestead in Nkandla, KwaZulu-Natal. With the help of his clients, he had played a hide-and-seek game to avoid accountability until the Constitutional Court (CC) had ruled that the PP’s remedial orders are binding, unless nullified by a court of law.
Importantly, the apex court ruled that Zuma had failed to uphold his oath of office.
On the eve of vacating the office, Madonsela released a report entitled State of Capture, ordering him to appoint a commission of inquiry, whose chairperson selected by Chief Justice Mogoeng Mogoeng, to investigate allegations of state capture. Arguing that she had overstepped her powers, Zuma’s application to nullify her report was dismissed with a personal cost order.
A day before her nomination to succeed Madonsela, the DA alleged that Mkhwebane was a State Security Agency (SSA) agent with close ties to Zuma. Repeatedly, she has denied the allegation.
She allegedly worked as an SSA analyst between July and October 2016, though. Therefore, she must have pledged allegiance to Zuma.
In addition to relevant laws and the South African Constitution, the SSA members had pledged allegiance to the president, according to a redacted High-Level Review Panel Report on the State Security Agency report.
Apart from solving the problem, Mkhwebane must have been brought in to absolve Zuma and his clients of wrongdoings. No wonder Zuma wanted Madonsela to refer her investigation into allegations of state capture to her successor.
Along with his former finance minister David Van Rooyen, he tried to stop Madonsela from releasing State of Capture in a last-ditch court challenge, but withdrew his application.
If Madonsela had agreed to refer the investigation to her successor, vacated the office without releasing the report, or a court had upheld Van Rooyen’s application, we would not have had a commission of inquiry into allegations of state capture. Mkhwebane, who had taken an issue with her predecessor’s methodology, might have either started the investigation afresh or substantially changed the report to absolve Zuma and clients of allegations.
When Madonsela vacated the office, for example, she had completed an investigation into wrongdoings in a dairy project in Vrede, Free State province, and sealed a report. Mkhwebane started it afresh and absolved former Free State premier Ace Magashule and former Free State agriculture member of the executive council (MEC) Mosebenzi Zwane, both of whom are key Zuma backers, of wrongdoings.
Indeed, we might not have had the state capture commission, chaired by Deputy Chief Justice Raymond Zondo. In her preliminary ABSA report, for example, Mkhwebane had recommended a commission of inquiry to investigate the loan, but Zuma opposed the recommendation.
She succumbed to his opposition. The same might have happened if Mkhwebane, who did not disclose two meetings she had with Zuma during her investigation, had recommended a commission of inquiry into allegations of state capture.
Riddled with all sorts of immaterial accusations, Zuma’s application for Zondo to recuse himself as the chairperson of the state capture commission has been dismissed as well. As a last resort, he is accusing judges of corruption without producing a shred of evidence.
The accusation is aimed at discrediting Zondo and other judges who preside over processes that seek to hold him and his clients to account. Mbeki must be feeling vindicated about him and his backers.
Implicated by over 40 witnesses, Zuma has defied a ConCourt order to not only appear before the commission, but also answer questions, claiming that it stems from “a clearly politicized segment of the judiciary that now heralds an imminent constitutional crisis in this country.” Contrary to conventional wisdom, his defiance does not constitute a looming constitutional crisis, not by a long shot; rather, it constitutes an offence that is provided in our legal system.
***Molifi Tshabalala is an author and independent political analyst
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