By Siphokuhle Mathe
The National Assembly through its established Committee for Section 194 Enquiry has erred in its decision to accept Advocate Nasreen Bawa’s refusal to recuse herself from the role of evidence leader.
The committee, which was established to read into Public Protector Busisiwe Mkhwebane’s fitness to continue to holding the office, instituted a hearing on the merits into the application for the evidence leader to recuse herself. This comes after a number of parties elected to question Bawa’s ethics, integrity, and credibility. Among her dissenters are Chumani Maxwele represented by Godrich Gardee Attorneys, UDM leader Bantu Holomisa, and the Economic Freedom Fighters.
In the hearing, Bawa mounted a weak defence and cited that there is a vendetta against her.
In the papers addressed to the Speaker of the National Assembly, Nosiviwe Mapisa-Nqakula, the accusations levelled against Bawa SC are that she unlawfully colluded with Hermione Cronje, the then-head of the Investigative Directorate at the National Prosecuting Authority. In the alleged collusion, she requested that Cronje field a set of questions that would ‘aid’ her understanding of a case wherein she acted to represent the then-Department of Agriculture, Forestry and Fisheries.
At the core of the alleged corruption, is the issue that she encroached on the independence of the NPA. This she allegedly did using her relationship with Cronje to access protected information from the prosecuting authority, whose intelligence materials are filed carefully to ensure that the carriage of justice for all cases remain safe.
Responding to the evidentiary photograph of an email exchange between herself and Cronje wherein she asks for the ‘tampering of the language’ in her document to make them ‘seem internal’, she argues that there had been numerous interactions between herself and the NPA, but she avoids answering the question of her impropriety and the inappropriateness of drawing Cronje to call upon Advocate Mzinyathi to give ‘advice’ on her questions, which she would later use in defence of her then-client. She defends her use of ‘tampering language’ to sell the idea that ‘tampering language’ as everyday legal speak which is untrue and a means of lying to ordinary people who are not familiar with legalise.
Most confusing about parliament’s hearing on Bawa’s role as evidence leader is the fact that the other implicated parties in Bawa’s alleged facilitation-cum-threat against the NPA’s independence, were not summoned to give account or information to dispel or confirm the allegations against Bawa SC. This is a clear sign of the possibility that Bawa or someone in the majority party lobbied to ensure that she is allowed to continue serving in this committee. Parliamentarians who are lawmakers in their more primary role would at least have applied the audi alteram partum rule to ensure that the other sides were ‘party’ to her alleged malfeasance.
Not doing so suggests that our parliamentarians are at best incompetent and at worst determined to preserve their power, rather than representing the people whose confidence in the parliamentary process is of paramount importance. Further, it demonstrates that the outcome of hearing was pre-determined but was heard for the benefit of a televised ‘access to the people’ principle of parliament.
Jurisprudentially speaking, the threshold for recusals is low for all judicial officers. Since justice must not only be done but be ‘seen’ to be done, the emergent questions are: to what extent is Bawa invested in ensuring that her personality or professional conduct do not cloud perceptions around the entire section 194 process and; would it not be in the interest of Mkhwebane for her to recuse herself in light of the possibility that these allegations may lead to legal criminal action against her?
The estimated cost of her legal payment for Bawa per day that she appears as evidence leader is set around R50 000 per day. If it is later found that the allegations against her are true, not only will it compromise the integrity of the process but tax payers would continue to pay for any course-correction attempts of the process. Had the Members of Parliament considered this, they would have moved to not accept her refusal to recuse herself.
However, the short-term gains are constructed around the success of ensuring that a legal practitioner by the name of Barnabas Xulu does not wield any influence insofar as to what the politicians are vying for pursuant to Mkhwebane. More worryingly, it simply means that the politics are overriding the substance of allegations that remain to be tested.
In Nguni languages, the idiom that best describes the conduct of members of parliament in this decision is that “baginye bengekayihlafuni” which transliterates into ‘they swallowed before they had chewed. Not only is this evidenced through the committee’s exclusion of implicated parties to account for how they have dealt or communicated with Bawa in the past, but it is also evidenced by the short-sightedness of their decision.
The allegations that hover above the head of Bawa SC also raise other questions. For example: how much has been spent paying her for how she has acted on behalf of the Department of Agriculture, Forestry and Fisheries? The other question is, if she had acted on an on-and-off basis for the department, how has this led to her inflating her legal fees, thereby acting unethically to ensure that she continues to earn through the state? This question is important because her track record shows that most of her legal representations have been for the state which, by extension, means that her silk status has been earned through a proximity to the state that very few legal practitioners enjoy. At an even broader level, taking to account that she is a ‘brown’ woman in the profession, the question about her vulnerability given the white-masculine-centric briefing patterns would show that she is also unable to recuse herself because of the structural issues that affect her personal finance position relative to the earnings of her white male counterparts in the profession.
Upon listening to Bawa at the hearing, it was interesting to hear the style with which she designed a maze into responding to the allegations that have been made against her. First, she mounts a discrediting account of her accusers, particularly Barnabas Xulu and Chumani Maxwele. As part of her response, she states that Xulu has used public funds to purchase a luxury home in Ballito valued at R24-million. She also alleges that the money recouped from the USA in the DAFF matter was improperly used over a particular weekend where R15-million was spent by Xulu.
She neglects to mention that the case of the matter is before the Constitutional Court, and seems to be a deliberate attempt to make Xulu look like a bogus, unscrupulous lawyer This is. something that parliament is not at liberty to adjudicate on, particularly since it might later have to play a role in the decisions pursuant to Judge Hlophe’s fate, following a 14 year-old legal dispute around what the JSC has determined as ‘gross misconduct’.
On the contrary, court papers pursuant to the Constitutional Court appeal show that Xulu has kept the money in trust at CARA, a criminal asset recovery account under the auspicious of the Department of Justice.
The “Daily Maverick’s” Marianne Thamm reports the version of Bawa without any attempt at conducting research for the investigative ends of this story. Had she performed her due diligence and read the papers sitting before the Constitutional Court, she would have balanced the narrative or included the fact that there is a contestation around the issue. This was not to be so in lieu of the ongoing culture at the publication wherein investigations are singularly dominated by individuals or groups whose versions align with editors’ biases or entanglements that are only accounted for in disclaimer sections, rather than ethical methodological approaches to journalism.
In dealing with the evidence attached to the allegations of corruption, in particular an email exchange between Bawa SC and Cronje, Bawa neither denies or confirms the veracity and authenticity of the email. She simply says “I haven’t been able to authenticate the email in the affidavit” and cites that she has engaged Cronje numerous times and that she can’t find the exact email in the affidavit in her “sent emails’ box. In a tactical manner, she uses plausible deniability with the knowledge that parliament has no forensic capability to authenticate the photograph of the emails nor the adjudicatory ability to do so. Yet, even a lay person would see the annexed photographs as prima facie evidence. This duplicitousness should have rung the alarm bells around her credibility.
Any reflection of the last few years of the State Capture Enquiry show that there are invisible elite networks at the centre of all impropriety in South Africa. The lack of rigour with which the hearing of Bawa SC was treated makes it difficult to understand or connect some of the sinister elements that foreground the politics around the Mkhwebane matter. Since Mkhwebane is no favourite of Ramaphosa and since Ramaphosa had appointed the NDPP Shamila Batohi, one would want to know whether or not Bawa’s insistence to be an evidence leader has anything to do with consolidating power to remove Mkhwebane and therefore create an impasse on the Phala Phala issue, among other matters that have almost disappeared such as the CR17 funding fiasco.
*Siphokuhle Mathe is an independent political economist.