When the law is an optional extra

The bizarre happenings in the security cluster – among others – bode ill for the country, writes Craig Dodds. It’s been an extraordinary week, topping an extraordinary few months, in the life of the country’s crime-fighting institutions, with the latest convulsion pitting the police against the National Prosecuting Authority (NPA).

Not since then-president Thabo Mbeki suspended prosecutions boss Vusi Pikoli because he intended to arrest police commissioner Jackie Selebi has there been such a dramatic showdown in the justice and crime prevention cluster.
The NPA says Deputy National Director of Public Prosecutions, Nomgcobo Jiba is absent without leave. Photo: Thobile Mathonsi
But even that drama featured a cast of only a few central figures.

On Monday, North Gauteng High Court Judge Elias Matojane dismisses an application for leave to appeal – brought by acting Hawks boss Berning Ntlemeza – against a ruling that overturned the suspension of Gauteng provincial head of the unit Shadrack Sibiya.

The judge describes Ntlemeza as biased and lacking integrity and honour.

Ntlemeza is in the position after the unlawful suspension by Police Minister Nathi Nhleko of the incumbent, Anwa Dramat, for his alleged involvement in the illegal rendition of Zimbabweans.

Sibiya’s suspension is also related to this matter but the report cited by the minister, in the case of Dramat, and by Ntlemeza, in the case of Sibiya – produced by the Independent Police Investigative Directorate (Ipid) – has not officially been made public.

Nhleko has accused Ipid head Robert McBride of doctoring the final report to remove the adverse findings made against Sibiya and Dramat in a preliminary version.

Sibiya and Drama have said they are being targeted because of their involvement in sensitive, high-profile investigations. Dramat, whose suspension was also declared invalid, is on extended leave.

On Tuesday, Nhleko suspends McBride, as he has threatened to do a few weeks earlier.

Also on Tuesday, the NPA says that the Deputy National Director of Public Prosecutions, Nomgcobo Jiba, is absent without leave, while police investigating charges of fraud and perjury struggle to locate her to serve a summons on her.

The NPA statement says the summons has instead been served on her boss, Mxolisi Nxasana, so that he can serve it on her.

Nxasana, meanwhile, is facing an inquiry – initiated by President Jacob Zuma, who appointed him – into his fitness for office.

The charges against Jiba relate to her having authorised, in her capacity as then-acting boss of the NPA, of racketeering charges against KwaZulu-Natal provincial Hawks head Johan Booysen.

The charges against Booysen were ultimately withdrawn, but Jiba’s decision was found to have been “arbitrary” and to have offended “the principle of legality”.

Her affidavit in the matter said that her decision had relied on a statement which, it turned out, was deposed two weeks after she had signed the authorisation.

Jiba is also in hot water, along with commercial crimes unit head Lawrence Mrwebi, about her decision to withdraw charges against the suspended head of the police crime intelligence unit, Richard Mdluli.

Mdluli is to appear in the Specialised Commercial Crimes Court in Pretoria next week. This follows Nxasana’s decision to reinstate the charges of fraud, corruption and money-laundering against him.

On Wednesday, police spokesman Solomon Makgale denies the SAPS issued the Jiba summons and says the NPA has “jumped the gun”.

The investigating officer has not been consulted about the summons, Makgale says.

No, says Nxasana, the investigating officer has worked closely with the prosecutor, up to the point that it has been established there is a prima facie case.

He accuses police commissioner Riah Phiyega of meddling in the matter.

Phiyega denies this.

And that’s just the turmoil in the security cluster.

Other key institutions of state – Eskom, the SA Revenue Service and the SABC – are also embroiled in boardroom or management dramas that threaten their ability to function effectively.

In the case of Eskom, this has led to a credit rating downgrade to junk status – a development that will limit its ability to fund the remainder of its building plans.

In the midst of all this, Nhleko has openly overstepped his powers, after the Constitutional Court has struck down provisions of the SAPS Act allowing him to suspend the Hawks head, and inserted in Dramat’s place the man Judge Matojane has described as “lacking integrity and honour”.

Communications Minister Faith Muthambi has, at best, wilfully misinterpreted her legal mandate in giving herself the power to remove members of the board of the SABC and to appoint the broadcaster’s executives.

Clearly, it’s disturbing on a number of levels when the most senior officers of the law (Ntlemeza and Jiba), not to mention cabinet ministers, treat the law as an optional extra in the performance of their duties.

For one thing, it’s an invitation to the rest of society to adopt a similarly cavalier approach which, ultimately, would unravel our constitutional order if not corrected.

You might have thought, given the seriousness of the situation (Eskom, on its own, is capable of taking the country down with it) and the profound damage it has done to the faith of the public in its government, that the president would have stepped in by now – perhaps making a television address in which he spelled out what would be done to fix the mess.

But, apart from vague assurances that everything is under control, and a statement from the Presidency on Thursday that he was being kept abreast of developments at Eskom, Zuma has been largely silent on these questions.

The rest of us fumble in the dark, struggling to make sense of a war within the state that appears to be paralysing critical organs.

There are plenty of theories but few established facts about what is at the root of the turmoil.

What seems clear, however, is that hidden interests are directing these battles and the prize is control of key institutions.

The purposes they are meant to serve – from providing a reliable supply of electricity to fighting crime – play second fiddle to these interests and the country pays the price.

Fortunately it is probable that the checks and balances built into our democracy – the courts among them – will kick in before too much further damage is done and order, or the semblance of it, will be restored.

Until then, strap yourselves in.

It’s going to be a bumpy ride.

craig.dodds@inl.co.za

Political Bureau

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