Publication: Business Day Issued: Date: 2004-05-31 Reporter:

In the Name of God, Go Ngcuka, or Risk Being Pushed



Business Day

Date 2004-05-31

Web Link


Nothing so underlines the poverty now a feature of the management of SA's criminal justice system than the finding of public protector Lawrence Mushwana that the head of the national prosecuting authority, Bulelani Ngcuka, abused his office, power and authority.

It is fine for politicians such as Deputy President Jacob Zuma and Ngcuka to attack one another. However, it is not acceptable that those occupying critical and powerful posts should bend these to their own advantage.

I have repeatedly made it clear that aspects of Ngcuka's behaviour have long been unacceptable. There can no longer be any doubt that he has put the authority of his position just about the most powerful in SA at the service of the influential cabal within the African National Congress (ANC) with whom he is known to be linked.

None of us should care too much about who is fighting whom in the church that is the ANC. It is when they misuse and abuse the power they hold in trust for the nation that it becomes a cause for deep concern.

I am in no doubt about this. The examples are too many, and too glaring. There are a legion of complaints about wrongful arrests, search warrants that have been secured after the event or on grounds that are flimsy in the extreme, serving the tactic of ensuring that citizens are tried and found guilty through the media only for the charges never to be brought.

This is exactly what was done to Zuma.

I really do not know whether he is guilty of what has been alleged. I carry no flag for him. But I do know that he has been paraded as a common criminal without benefit of trial.

That many people want him to be guilty is irrelevant. If these things can be done to him, what chance do the rest of us have?

So, when Ngcuka fulminates that Mushwana's findings are a travesty, it has about it the elements of a farce.

After the manner in which he has failed to discharge his duties impartially and apolitically, who is Ngcuka to complain about a travesty?

Everyone seems conveniently to forget that Judge Joos Hefer did not confine himself to arriving at the conclusion that Ngcuka had not spied for the apartheid regime.

Hefer also pointed at the evidence that suggested abuses of power inside the national prosecuting authority.

Of course, all this shifts the spotlight to the management of our legal affairs. If ever there was a lesson as to why politicians of any hue should not be allowed near the criminal justice system, here it is, writ bold. Ngcuka is a long-standing ANC member.

Nor should an investigative arm such as the Scorpions fall under the control of the prosecuting authority.

Just as many suspected would happen, the Scorpions has become a weapon which has been subverted to the will and wishes of a few. When it was set up it was with the best of intentions but we all know the path to hell is paved with these.

It may be as well to remember that, when individuals are appointed to high offices of state, the power which they then wield is never to be used arbitrarily or without the most careful thought.

Whatever else, Ngcuka is now so tarnished that his continued involvement in the authority would be most unwise. His office has been so traduced he should do the decent and obvious he should resign. And, if he will not go, he must be removed.

As Oliver Cromwell told the English parliament when he dismissed it: "You have sat too long for any good you have been doing. Depart, I say, and let us have done with you. In the name of God, go."

There is ample provision for the removal of Ngcuka through section 12 (subsections six and seven) of the National Prosecuting Authority Act (32 of 1998). These empower the president only to suspend or remove the director subject to parliamentary ratification. In any event, I am reminded I wrote two weeks ago that I had information that President Thabo Mbeki had already expressed privately his concern about Ngcuka.

The good order and clean management of the criminal justice system is far bigger and far more important for the economy and individuals alike than any man or political party.

There is really nothing to be gained and everything to lose in retaining the services of a man in high office who has lost the respect of his peers and the people he swore to serve.

Powell aims to clear his name, in string of lawsuits

While I am on the subject of the abuse of power my attention has been drawn to a court action being brought by Oliver Powell, a liquidator. It is against Jan Swanepoel, investigating director of the serious economic offences department at the time.

The case is on the roll, to be heard today in Pretoria.

Powell wants the court to set aside an inquiry which was instituted by then justice minister Penuell Maduna into alleged irregularities in the appointment of liquidators.

That investigation provoked well-publicised raids on Powell's home and offices in October 1999. As a result of the raids, Powell says his business has been destroyed and his family life seriously jeopardised.

Powell says today's hearing is part of a long process to clear his name. He believes it will also expose the abuse of the powers vested in the directorate, now part of the Scorpions.

"In spite of all the public statements by both Maduna and Swanepoel at the time, no one has ever been charged," according to Powell.

Included in Judge Joos Hefer's inquiry into the Bulelani Ngcuka spy affair was a stern rebuke on just this kind of matter.

Months had elapsed, said Hefer, since former minister Mac Maharaj had been questioned. No charges had been preferred. In the meantime, press reports on the allegations against Maharaj and his wife kept appearing. In a country in which human dignity is prized and all are presumed innocent until found otherwise "this is wholly unacceptable", the judge remarked.

Last month the Appeal Court set aside the preparatory probe instituted by Swanepoel and also found search warrants issued against Powell were unlawful.

Powell has now launched a string of court actions. He is suing the minister of justice, Swanepoel, now head of accountant PricewaterhouseCoopers' forensic audit division, another liquidator, Brian Nel, and Finance Week deputy editor Amanda Vermeulen for a total of R60m. The claim is for damages and loss of earnings.

A further civil action for defamation and damages has been instituted against the Sunday Times for R6m.

When the dam wall cracks, the flood is never far behind.

Expedite firms' tax matters

An intriguing comment in the latest financials for Mr Price deals with the resolution of an outstanding tax matter.

The company has agreed to an accelerated tax payment of R100m and subsequent accelerated payments of R160m to be spread over later years.

These payments are in respect of export partnerships, a business in which it has been involved for 17 years. The company says it is satisfied that the way it has handled these in the past has been correct but it has done the deal with revenue to avoid "the possibility of protracted litigation and the diversion of management".

An angry Trencor shareholder called me about the Mr Price revelation. Why was it, he complained, that Trencor, which seems to have had an identical problem, has not been able to sort this out after six years?

The answer, probably, is that Trencor thinks its approach is correct and is not inclined to enter the same kind of arrangement.

In its prior financial statement (for 2003), the company says it is confident that the legal advice it has received will prevail in the event of a formal challenge.

As far as I can ascertain, all this arises from the sale by Trencor of transport containers to overseas buyers on extended terms. Revenue presumably wants to tax the sale when it is made. Trencor thinks it is only right the tax should be levied as the repayments are received.

Tax certainty is an essential for business confidence - and success. Matters such as these really should not be allowed to linger unresolved for years.

With acknowledgement to the Business Day.