Strong Emotions and Stronger Words
Public Protector Lawrence Mushwana and counsel for both National Director of Public Prosecutions Bulelani Ngcuka and former Justice Minister Penuell Maduna have been using some rather strong language of late.
Liar, insulting, arrogant, incompetent, aggressive, distressing, somersaulting, misguided, unhelpful, defensive and illegal are some of the words used in a series of heated exchanges between Mushwana on the one hand and Ngcuka and Maduna on the other hand.
The invective flung around neatly sums up the drama that unfolded during the Public Protector's probe into whether Ngcuka "improperly prejudiced" Deputy President Jacob Zuma when - in August last year - he said there was a prima facie case of corruption against Zuma although he preferred not to prosecute him as the case was "not winnable". Ngcuka investigated Zuma for allegedly soliciting a bribe from Thomson-CSF, the French manufacturer which was then bidding for an arms contract.
Infuriated by Ngcuka's statement, Zuma lodged a complaint against Ngcuka with the Public Protector on October 30 last year.
After a five-month-long heated exchange between Mushwana and Ngcuka, Mushwana has finally ruled in Zuma's favour.
Mushwana investigated whether Zuma was improperly prejudiced by Ngcuka's statement, whether that statement was fair and proper, and whether Zuma was timeously informed about the criminal investigation against him.
Mushwana also sought to determine whether the National Prosecuting Authority (NPA) leaked confidential information about the criminal investigation against Zuma, and whether the probe continued after Ngcuka had announced his decision not to prosecute Zuma
Mushwana kicked off his probe in January by asking Maduna for a copy of a report in which Ngcuka had detailed why he did not prosecute Zuma.
After initially being "hesitant and reluctant", Maduna relented. But Mushwana was not happy with the contents of the report. He then asked Maduna whether he agreed with Ngcuka's findings.
He also asked the minister whether a criminal investigation against Zuma was continuing, as had been reported in the media - despite Ngcuka's decision not to prosecute - and, if so, to indicate whether it was being conducted with his approval.
Mushwana further asked Maduna to respond to Ngcuka's claim that the information provided by Zuma during the criminal investigation "was not very helpful".
Continuing a regular correspondence with Maduna, the Public Protector wrote that he couldn't understand why no reference was made - either in Ngcuka's report or a press statement - to detailed responses which Zuma had made to investigators' questions.
"Only the evidence accumulated by the NPA was discussed [in the report], whilst Mr Zuma's answers - specifically in regard to solicitation of a bribe, a matter that received vast attention in the media, was apparently ignored.
"The public was therefore not informed of Mr Zuma's explanation that was submitted to the NPA on these very serious allegations," said Mushwana.
He further questioned whether Ngcuka's failure to publicly acknowledge Zuma's version conformed to constitutional requirements obliging the NPA "to act reasonably and fairly".
Mushwana wanted to know whether information in the report which related to the criminal case against Zuma's financial adviser, Schabir Shaik (who is facing corruption charges) was correct "and, if so, on what basis the initial decision [the recommendation to Ngcuka by his investigators] to prosecute Mr Zuma was taken".
Mushwana's report of his investigation stated that he was surprised to receive no response to letters dated February 10 and 25.
Mushwana said he first alerted Ngcuka to Zuma's complaint on November 10 last year in a letter in which he promised him that he would be able to respond to the allegations against him.
At a meeting with Ngcuka on February 16, also attended by senior NPA officials, Mushwana was referred to the indictment against Shaik and others.
Mushwana reported that although Ngcuka maintained the NPA did not have sufficient evidence to prosecute Zuma, Ngcuka was adamant that the seriousness of the allegations against Zuma "appears" in the indictment against Shaik.
Among others, allegations in the indictment were that:
On February 25, Mushwana gave Ngcuka copies of letters he had addressed to Maduna. He drew Ngcuka's attention to Zuma's contention that the criminal investigation against him was still continuing, as a summons had been served on businesswoman Norah Fakude-Nkuna - "the context of which relates to such further investigation". This was despite Ngcuka's assurance that the investigation had been concluded.
On March 5, Leonard McCarthy, the head of the Directorate of Special Operations (Scorpions), responded to Mushwana on behalf of Ngcuka and Maduna in a strongly-worded letter.
He described Mushwana's letters to Maduna and Ngcuka seeking their assistance in the investigation as "distressing". McCarthy accused Mushwana of having "somersaulted" from a position he had adopted during a meeting on February 16 with Maduna, Social Development Minister Zola Skweyiya and Ngcuka as well as the latter's three deputies. According to Ngcuka's spokesman Sipho Ngwema, McCarthy recalled that Mushwana opened the discussion by saying that he wanted to brainstorm ways in which the issue could be resolved.
Mushwana then told the meeting that a memo he had sent to Maduna was meant to "kick-start" debate on how to resolve the issue.
According to Ngwema, Ngcuka then told Mushwana that he was relieved to hear this, as he was concerned that the memo to Maduna had been "inaccurate and biased".
According to McCarthy's recollection of the meeting, as related by Ngwema, Ngcuka explained to the meeting how the decision not to prosecute Zuma had been arrived at, and the rationale for announcing the decision.
Mushwana, according to Ngwema, then acknowledged that, in the absence of full access to the facts, Ngcuka's position might well have been right.
Ngcuka's team told Mushwana that it would be "inappropriate" to have an inquiry about the same issues that were before the court in Shaik's corruption trial.
"He [Mushwana] agreed," said Ngwema. The meeting ended on an amicable note, after which Ngcuka wrote to Mushwana elaborating what, according to Ngwema, both sides believed had been agreed - that Mushwana would hold back his request for further information until the conclusion of Shaik's trial.
It appeared to all sides that Mushwana was happy to delay his request for information until the Shaik trial was concluded.
But Mushwana then apparently changed his mind by doing exactly the opposite: he promptly asked Ngcuka and Maduna for the information.
This prompted McCarthy to write Mushwana the strongly worded letter in which he described his attempted review of their decision not to prosecute Zuma as "highly questionable, if not illegal".
McCarthy told Mushwana that the only prudent thing to do would be to seek a review of the decision not to prosecute in the High Court, or alternatively to apply for a private prosecution against Zuma.
On whether the criminal probe against Zuma was still continuing, McCarthy said: "If anything, under the law, the National Prosecuting Authority is entitled to question whomsoever it has cause to, whenever it wishes to do so, no matter their relationship with any person, including the Deputy President of the Republic of South Africa."
In his response, Mushwana described the contents of McCarthy's letter as "disconcerting".
The letter, he said, was phrased in an "aggressive and defensive manner, and provided no assistance to the Public Protector, as required by law".
Mushwana also charged that McCarthy' s letter insulted him by insinuating he was a liar and incompetent. He said it showed that the prosecuting authority regarded itself as being above question and criticism.
Mushwana then decided to approach President Thabo Mbeki for assistance. In a letter to Mbeki on March 15 he explained the difficulties he had experienced in getting Ngcuka and Maduna to co-operate.
A week later, both Ngcuka and Maduna wrote to Mushwana, telling him that they had nothing "at this stage" to add to the information they had already given him. To say more would compromise the criminal case, they argued.
Mushwana's key finding, as contained in his report of this week, is that by contending there was a prima facie case of corruption against Zuma but that he would not be prosecuted, Ngcuka unjustifiably infringed upon Zuma's constitutional right to human dignity.
He said Ngcuka had caused Zuma to be improperly prejudiced.
"The press statement [by Ngcuka] was unfair and improper. Zuma had not been informed by Ngcuka and Maduna of the criminal investigation against him shortly after it commenced, as was publicly claimed by Ngcuka.
"As Maduna was replaced in the Cabinet, it would serve no purpose to make any recommendations to Parliament regarding his improper failure to co-operate with the Public Protector
"The provisions of Section 21 of the NPA Act establishing a ministerial committee have not been implemented.
"Mbeki's actions to investigate leaks by the NPA should be commended," said Mushwana.
He recommended that Parliament take urgent steps to ensure that Ngcuka and the NPA were held accountable for "failing to co-operate with the Public Protector while investigating Zuma's complaint".
He also said they must be held accountable for infringing upon Zuma's constitutional right to human dignity, and acting in an unfair and improper manner while investigating Zuma.
Mushwana was particularly critical of the fact that a five-member ministerial committee, envisaged by the NPA Act to map out policy guidelines governing the Scorpions had never sat.
Parliament, he said, had to ensure that this committee did this work as a matter of urgency. Only if this happened, Mushwana argued, would it be possible to prevent a recurrence of the "improprieties" he experienced during his investigation.
In response to recommendations by the Hefer Commission, which investigated spy allegations against Ngcuka and leaks by the NPA, Mbeki has instructed newly appointed Justice Minister Brigitte Mabandla and other ministers to develop a "proper security management system".
This, Mbeki has indicated, should include guidelines to prevent the leaking of privileged information during investigations.
Mbeki has also recommended that the ministerial committee ensure that NPA staff, including external consultants, are properly screened.
With acknowledgements to Xolisa Vapi and the Sunday Times.