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Mxolisi Nxasana’s job is to rescue the reputation of one of the most important institutions in our democracy, says Max du Preez.
Durban - Are we South Africans so punch-drunk that we’re treating the political interferences at the National Prosecution Authority (NPA) as just another minor scandal?
An independent and properly functioning court system is one of the most critical pillars of democracy and stability. Despite indications of tendencies in the ruling party to want to “load” the courts with executive-friendly judges, we can still trust our courts.
But no judiciary where the prosecuting authority is dysfunctional or politically manipulated can in the long run be fully trusted. And this is where we are in South Africa right now. This is a very grave matter.
The most recent visible part of the problem was the bizarre decision by the NPA to withdraw the criminal charges of corruption against former crime intelligence boss Richard Mdluli, a powerful and politically well-connected man very loyal to President Jacob Zuma.
In a letter that was leaked, he promised to help Zuma get re-elected at Mangaung and wrote an “intelligence report” naming senior politicians and other key players in an alleged anti-Zuma conspiracy.
Mdluli was also charged with the kidnapping and murder of a love rival, but these charges were also withdrawn by the NPA in February 2012. The police dropped disciplinary charges against him a year earlier after a meeting between a top general and the Police Minister Nathi Mthethwa.
Judge John Murphy of the North Gauteng High Court declared last week that the decision by Lawrence Mrwebi, head of the NPA’s Specialised Commercial Crimes Unit, to withdraw the corruption charges against Mdluli was “illegal, irrational, based on irrelevant considerations and material errors of law”. Strong language.
It was Mrwebi’s first job after he was appointed by Zuma to order senior prosecutor Glynnis Breytenbach to leave Mdluli alone.
She was reluctant and then the NPA started a relentless war of attrition against her that has still not ended. In the latest twist, the NPA is accusing her of working for the Israeli secret service.
Mrwebi was previously implicated in an irregular payment of R150 000 to a non-existent police informer and was again in hot water when a document he wrote landed in the hands of Jackie Selebi’s lawyers.
It was reported recently that the acting head of crime intelligence, Chris Ngcobo, had abandoned his post after being undermined by a pro-Mdluli faction and that the commissioner of police was about to re-appoint Mdluli.
Last week’s court case, brought by rights group Freedom Under Law, has at least temporarily put a stop to these plans.
But the rot in the NPA started a long time ago. In 2008 the head of the NPA, Vusi Pikoli, was suspended and later fired from his job, apparently because he insisted on charging former police commissioner Selebi and was in favour of prosecuting Zuma on fraud and corruption charges.
His successor (and shortly afterwards a judge) Mokotedi Mpshe formally dropped the Zuma charges in April 2009 because, he said, recordings of telephone conversations indicated political meddling in the case. The NPA is still fighting a court application by the DA to have the contents of these tapes made public.
Zuma then appointed Menzi Simelane as head of the NPA, but this was reversed because the Constitutional Court declared that Zuma’s decision to appoint him was “irrational”.
Simelane’s evidence to a commission of enquiry, led by former Speaker Frene Ginwala, into Pikoli’s fitness to head the NPA was found to be “contradictory and, on its face, indicative of Mr Simelane’s dishonesty and raised serious questions about Mr Simelane’s conscientiousness, integrity and credibility”.
Last week’s Mdluli case has been called “almost a dry run” for the DA’s bid to have the courts review the decision to withdraw corruption charges against Zuma.
If Judge Murphy’s decision is upheld, legal experts believe the hundreds of corruption and fraud charges against Zuma would be probably reinstated.
The allegations against him are largely based on the same information used to convict his former financial adviser, Schabir Shaik, who was sentenced to 15 years in prison.
It is unbearable in a democracy to have citizens constantly wondering whether their president is a crook or not.
It is absolutely crucial that the newly appointed head of the NPA, Mxolisi Nxasana, should establish himself quickly as independent and immune to all political pressure.
He should demonstrate to all that it isn’t, in fact, the NPA’s job to guard over the president’s interests and keep him out of court.
Nxasana’s job is to rescue the reputation of one of the most important institutions in our democracy and restore the faith of the South African people in our judicial system.
He could take a leaf or two out of the book of our brave and stubborn Public Protector, advocate Thuli Madonsela.
* Max du Preez is an author and columnist.
** The views expressed here are not necessarily those of Independent Newspapers.