Civil Society Condemn Attacks on Zondo Commission

27 November 2018

We, civil society organisations in South Africa, express our deep concern at the attacks made in recent days on the State Capture Commission by the Economic Freedom Fighters (EFF).

 Such attacks include statements by EFF leader Julius Malema in which he:

  • Described the Commission as a “Mickey Mouse Show”;
  • Accused its chairperson of stealing money from the poor;
  • Referred to the evidence leader of the Commission as “a bastard’;
  • Referred to Public Enterprises Minister Pravin Gordhan as “a dog of white monopoly capital”, threatened that there could be “loss of life”, and falsely claimed that Gordhan has a hatred for black people; and
  • Falsely accused Gordhan’s daughter of securing through her father, and benefiting from, government business

Civil society is the first to recognise that a robust, healthy democracy requires competing views and protest. However, expression and protest action that threatens violence and harm, that looks to flirt with racist and bigoted sentiment and with hate speech can only erode our constitutional democracy, not strengthen it. Repeated, unsubstantiated claims, in addition to being all of that mentioned above, reveal an agenda that goes beyond criticism of the commission. It smacks of a deliberate attempt to undermine it and the participants who are uncovering the web of state capture and corruption.

Processes of governance, including commissions of enquiry, should not be insulated from considered criticism.  However, the threats contained in the EFF’s utterances not only place those witnesses who have testified before the commission and its officials in harm’s way, but will also have a chilling effect on any potential witnesses who may have information that could assist the Commission. This could render the work of the Commission meaningless, and help the culprits involved in state capture walk free without being investigated or called to account.

There is understandably great interest in the Commission’s proceedings. It has the potential not only to lay bare which parts of our constitutional state have been hollowed out, how this came about and who is responsible but what the cost has been for ordinary South Africans. Its recommendations may be critical to future protection of our democracy and realising the promise of our Constitution for all South Africans. It is clear that the evidence laid before the commission will result in prosecutions, which may explain the level of vitriol against witnesses. Full assessment of whether the Commission delivers on this potential can only be made at its conclusion.

In this context, the onslaught by the EFF in the media and outside the venue of the Commission, combined with a relentless social media campaign, shows that they are intent on drowning out and forcing a shutdown of the work of the Commission. This is an attack on our very democracy, and must be strenuously resisted. We call on the EFF, if it is possession of incriminating evidence relating to state capture and corruption, to make a full disclosure and present it to the Commission. In the same vein, we urge the Commission to use the powers at its disposal to compel persons who claim to have relevant incriminating evidence, to appear before it.

We as a society have sacrificed too much, and our people denied the basic necessities of life for too long, to not insist that the Commission’s work is taken to a proper conclusion.

Issued by:

The Ahmed Kathrada Foundation

Corruption Watch

Freedom Under Law

Helen Suzman Foundation

Johannesburg Against  Injustice

Section 27

FUL Concerned at Intimidation of Zondo Commission Staff and Witnesses

23 November 2018

Freedom Under Law (FUL)is concerned at the protests and utterances which occurred this week outside the Commission of Inquiry into Allegations of State Capture. 

FUL recognises that protest, safeguarded by the right to free expression and association, is intrinsic to any constitutional democracy. However protest which threatens violence and harm must register as a threat. So too, protest designed to intimidate and undermine  a commission of inquiry established to address allegations of state capture and corruption and to intimidate witnesses appearing before the commission.

FUL notes in particular the attacks on the evidence leader of the Commission, Mr Paul Pretorius and on the Minister of Public Enterprises, Mr Pravin Gordhan and his family. These attacks seem aimed at intimidating those undertaking their professional responsibilities in respect of the Commission and in deterring other prospective witnesses from appearing before the Commission.

FUL calls on those parties alleging that they have incriminating evidence relevant to state capture to make full disclosure to the Commission and not seek to erode its processes. It urges the Commission to use such powers as it has to compel those publicly maintaining they have such evidence to appear before it.

ANN CROTTY: How we were saved from Sassa

25 October 2018

It’s chilling to think where we might be without an active civil society

You know you’ve done a pretty good job as a crisis committee when nobody notices you’ve stopped doing it. The experts appointed by the Constitutional Court to save the country from the consequences of chronic mismanagement by the SA Social Security Agency (Sassa) were of course tagged as a panel, not a crisis committee. But let’s face it, they were sent in to sort out a crisis. This month they presented their 10th and final report to the court. It was as insightful, detailed and instructive as the previous nine. By their own admission the problems at Sassa are far from over; Cash Paymaster Services (CPS) is still clinging onto about 2-million beneficiaries through EasyPay Everywhere cards, and they indicate the new Sassa contract with the SA Post Office is deeply problematic. The panel has serious reservations about the Post Office’s ability to do the job expected of it. The first of the panel’s reports was delivered to the court in September 2017 and gave the remarkably refreshing …

FUL Welcomes Costs Order Against Minister Bathabile Dlamini

28 September 2018

Freedom Under Law (FUL) welcomes the judgment of the Constitutional Court delivered yesterday, ordering Minister Bathabile Dlamini to personally pay costs incurred by Black Sash and FUL in their litigation relating to the first extension of the Cash Paymaster Services contract for payment of social grants. The Court also ordered that a copy of the judgment and of the report issued by Judge Ngoepe as to Minister Dlamini’s personal liability for the social grants crisis be forwarded to the National Director of Public Prosecutions for determination as to whether Minister Dlamini should be prosecuted for perjury.

FUL believes the judgement to be an important vindication of accountability, sorely needed in the country at this time. 
However, the judgement cannot stand on its own. FUL notes that the judgment envisages an important accountability role for the NDPP in this matter and recalls that another very recent Constitutional Court judgment ordered the President to appoint a new NDPP within 90 days. It is imperative that a new head of the NPA, able to restore credibility and integrity to the institution, be installed as quickly as possible not only so that the full measure of accountability might be secured in this matter but for so many other matters clamouring for accountability in the country today.  

FUL Welcomes Con Court Judgment Finding Shaun Abrahams’ Appointment Invalid

13 August 2018

Freedom Under Law (FUL) welcomes the judgment delivered today by the Constitutional Court in which it held that the termination of Mr Mxolisi Nxasana’s position as National Director of Public Prosecutions (NDPP) and the monetary settlement granted him were constitutionally invalid and that the subsequent appointment of Mr Shaun Abrahams as NDPP was also invalid. It also welcomes the Court’s order that the President is to appoint a new NDPP within 90 days.

FUL, together with Corruption Watch, brought the initial application to challenge the termination and settlement, believing these subverted the independence of the NDPP and the NPA. FUL is confident today’s judgment holds out the prospect of a reconstructed, revitalised NPA, with persons of unimpeachable integrity at its helm, able to fully play its vital role in securing criminal justice and constitutional democracy and with the public’s confidence that it is able to dispense justice without fear or favour.

FUL salutes Mr Nxasana, without whose assistance the true record of then President Zuma’s efforts to oust him from office would never have been disclosed. It will watch with interest the appointment of the next NDPP.

FUL Concerned at Nomgcobo Jiba’s Continued Presence at NPA

19 July 2018

Freedom Under Law (FUL) has instructed its lawyers to write to the National Director of Public Prosecutions (NDPP), Shaun Abrahams, seeking clarity as to the presence of Nomgcobo Jiba, Deputy Director of Public Prosecutions currently on special leave, at the offices of the NPA. This follows reports that Ms Jiba has visited the NPA’s offices on at least two occasions in the past six months. If true, Ms Jiba’s attendance at the NPA’s offices would be in clear violation of the order of North Gauteng High Court delivered in December 2017.

The Court held that the decision taken by Mr Abrahams to withdraw charges of fraud and perjury against Ms Jiba, was irrational and was to be set aside. It also found that the failure by then President Zuma not to suspend and institute inquiries into the fitness of Ms Jiba and Mr Lawrence Mrwebi was irrational and that it should be set aside.

Mindful of the importance of public confidence in the NPA as a law enforcement agency, the Court held that ‘the continued presence of such high profile officers in their positions under the current circumstances, even for one day longer, should not be countenanced.” For this reason, and faced with the privileged access Abrahams had granted the pair when placing them on special leave, the Court devised a specific order, prohibiting Ms Jiba and Mr Mrwebi, pending the prosecution to finality of appeals, from performing any function relating to their offices in the NPA and from presenting themselves to the NPA offices and/or engaging in any discussion concerning any pending cases under consideration by the NPA.

That Ms Jiba is now reported to have visited the NPA’s headquarters in Pretoria twice over the past six months, so flouting the Court’s order, only serves to underline her unfitness for any role within the NPA, let alone that of key official. But that this happens with Mr Abrahams still at the helm of the NPA, even without reference to his past history of granting Ms Jiba special concessions, is a reminder to the South African public and our President of the importance of restoring integrity and professionalism to this beleaguered institution. And that this requires urgent change to its top leadership.

Richard Mdluli

In September 2020, Richard Mdluli, former head of Crime Intelligence in the SAPS, was sentenced in the High Court, Johannesburg to an effective five years imprisonment for counts of kidnapping, assault with intent to cause grevious bodily harm, assault and intimidation.

His conviction and sentencing follow a series of legal challenges over several years by Freedom Under Law to decisions which would have given Mdluli impunity and kept him in his crucial post.

The charges against him  (with other charges of fraud and corruption) had initially been withdrawn by senior prosecutors in the NPA, Nomgcobo Jiba and Andrew Chauke. In 2012 Judge Makgoba granted Freedom Under Law an urgent order directing that Mdluli stand down from his position pending the determination of a review of that decision.

In doing so, the Court stressed that a constitutional democracy could not tolerate a situation in which one of the country’s key crimefighters continued to perform his daily functions while himself facing serious allegations of criminality. That Mdluli had not been finally convicted of these grave crimes was not the issue.

In due course Freedom Under Law’s review of the prosecutors’ decision to withdraw charges too was upheld.

Mdluli’s trial ensued, and has extended over a lengthy period, culminating the September 2020 sentencing by Justice Mokgoatlheng.

In November 2020, Mdluli will appear in the Pretoria High Court to finally face charges of fraud and corruption relating to the Crime Intelligence slush fund.

His sentencing for offences relating to the kidnapping and assault of Oupa Ramogibe in 1999  is an important vindication of the rule of law in that one of South Africa’s most senior police officers has finally been held accountable for some of the crimes he has committed.

It is a cause for reflection that had Freedom Under Law, one of a group of civil society watchdogs active in this way, not challenged the decisions to withdraw charges and to keep former Mdluli at his desk, his impunity would have been assured.

For recent reports on the Mdluli matter, see here and here.