Publication: Sunday Times Issued: Date: 2004-06-27 Reporter: Xolisa Vapi

Public Protector Changed Tune



Sunday Times

Date 2004-06-27


Xolisa Vapi

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Before changing his tune, Public Protector Lawrence Mushwana had told National Director of Public Prosecutions Bulelani Ngcuka that there indeed appeared to be a prima facie case of corruption against Deputy President Jacob Zuma and that he should be charged.

That is what Ngcuka wanted to tell a special committee appointed three weeks ago to consider Mushwana's findings following a complaint by Zuma against Ngcuka.

Ngcuka had earlier promised to smash Mushwana's report to smithereens if he got the opportunity to address the parliamentary committee.

Ngcuka's request to make a submission was, however, turned down by a deeply divided multi-party committee, which this week issued him with a mild rebuke for having said there was a prima facie case of corruption against Zuma although he would not prosecute him.

It has now emerged that Mushwana expressed the same view as Ngcuka in a letter he wrote to him in February this year. But Mushwana did not express it in his final report, which is highly critical of Ngcuka and former Minister of Justice Penuell Maduna.

New revelations about Mushwana's turnaround came in the wake of frantic efforts by the ANC this week to rescue Zuma from the arms-deal scandal that has hung over his head for three years.

Weaknesses in Mushwana's probe into Zuma's complaint about Ngcuka's alleged abuse of power were revealed to the Sunday Times this week by a senior National Prosecuting Authority official whose views sum up what the NPA would have told Parliament.

The official said Mushwana acted outside his legal parameters in a bid to clear Zuma of bribery accusations. He also accused Mushwana of selective use of evidence to support his "artificial" reasoning.

Even as Parliament declared the row between Ngcuka and Mushwana closed on Friday, fresh evidence of a standoff between the two senior ANC officials suggests that the war is far from over.

It is understood that the NPA believes Mushwana misled President Thabo Mbeki's office to further what has been described as "his intentions of making adverse findings" against Ngcuka and Maduna.

Mushwana sought Mbeki's help after Ngcuka and Maduna were reluctant to give him detailed reasons for not prosecuting Zuma.

Mushwana approached the presidency after Ngcuka and Maduna had told him that the information was sub judice because it was the subject of a pending court case against Zuma's financial adviser, Schabir Shaik.

Mbeki's office informed Maduna and Ngcuka of Mushwana's complaint. After they explained their reasons, Mbeki's office said all the Public Protector wanted was a letter explaining that they were unable to assist him because of the sub judice rule.

At Maduna's request, Mbeki's office wrote a letter that was signed by Maduna and handed to Mushwana. However, in his report to Parliament, Mushwana said both Ngcuka and Maduna had refused to co-operate. It appears that Mushwana used the letter drafted by the presidency as evidence of refusal.

When Mushwana published his findings last month, the NPA was still expecting a response from him in relation to some of the issues raised with him, said the official.

The Sunday Times was told that Mushwana did not just mislead both Ngcuka and Maduna but also misrepresented his intentions to the office of the President as he did not inform Mbeki that he was dissatisfied with the response.

To suggest that the process of engagement amounted to a refusal to co-operate was therefore misleading, argued the NPA official.

During a meeting that took place on February 16 this year, it is alleged that Mushwana agreed that he would not proceed with the investigation until the Shaik prosecution had been finalised. This agreement was confirmed by a letter that Ngcuka wrote to Mushwana afterwards.

The NPA official also criticised Mushwana for breaching his alleged undertaking to treat confidentially a report summarising Ngcuka's reasons for not prosecuting Zuma.

Ngcuka had prepared the report for Maduna, who gave it to Mushwana to help him in his investigation and requested him to keep it confidential.

After agreeing, Mushwana took the document to a senior counsel and sought legal opinion. It is alleged that he went further - to review Ngcuka's decision not to prosecute Zuma - despite his promise to respect the sub judice rule.

"We were constrained... because the issues he raised could not be responded to without unpacking the evidence that the state intends marshalling before court in the Shaik trial," said the NPA official.

The official said Mushwana had struggled to understand the concept of prima facie to the extent that the NPA had offered to explain the term to him in writing.

He said Mushwana had created the impression that he had already formulated a view that Zuma had been prejudiced and he had to find reasons to support that view.

The NPA official said Mushwana "misdirected" himself and acted outside his legal parameters.

The view within the NPA is that Mushwana did not only disrespect the sub judice rule but went further and reviewed Ngcuka's decision, thereby threatening to compromise the state's case against Shaik.

Only the courts can rule on a breach of a fundamental right, the official said, adding that in his findings about Zuma's right to dignity Mushwana had sought to interfere with the discretion that vests in the National Director of Public Prosecutions. Mushwana had assumed judicial powers for which the Public Protector Act does not provide.

"Only the Constitutional Court... can pronounce on that matter," the official said, warning that while Zuma had won the political battle, he now had to prove himself on the legal front.

Among the alleged inconsistencies the official spotted in Mushwana's report is his statement in a letter to Ngcuka dated February 10 2004 that "the view of the prosecutor on what is in the public interest plays no role" in deciding whether to charge Zuma.

But later Mushwana concluded differently in a letter stating: "In our understanding of the provisions of the prosecution policy, the public interest would demand that the deputy president be prosecuted under the circumstances."

Mushwana's silence on Zuma's main complaint of abuse of power by Ngcuka was surprising, the official said. "If any harm was done to the deputy president, it was done by the charge sheet [in the Shaik trial], which could not remain silent as far as the deputy president is concerned."

"That is, however, harm which he must legally endure because the state is obliged by law to disclose these particulars in a charge of corruption."

With acknowledgements to Xolisa Vapi and the Sunday Times.