There is something Al Capone-esque (remember, mere tax evasion charges brought the Chicago gangster to justice) about the latest turn of events in the Mxolisi Nxasana saga. Imagine a little lie in a long affidavit about a seemingly insignificant detail of the circumstances leading to the conclusion of a settlement agreement precipitating the end of the political career of a president. Richard Nixon must be squirming in his grave. By PAUL HOFFMAN.
An alien legal scholar from some faraway galaxy, upon studying the South African Constitution, may be justified in concluding that the voters and political parties of the country would be astute to appoint only the most noble, upright and impeccable of citizens to the office of president. This conclusion is, objectively speaking, unavoidable given that our dispensation in SA combines the positions of head of state and head of the national executive in one person, our first citizen. Numerous onerous powers, duties, functions and obligations are heaped upon the single individual who holds this combined office. His or her probity, integrity and honesty ought to be beyond reproach. The duty to obey, respect and uphold the Constitution with its fealty to the rule of law cannot be properly discharged by the corrupt, the liars and the crooks among us.
President Jacob Zuma is an inveterate liar. Even before he was elected president this was plain. Jonah Fisher, a cheeky BBC television journalist asked him, on camera, if he was a crook. Instead of answering, our president prevaricated and called for a dictionary definition of the term “crook”. He has been known, over the years, to flip-flop on numerous issues, depending on his audience and the exigencies of the occasion. Think of his attitude to the gay community, to the supposed racism in the land which he can magically disappear or resuscitate as the occasion demands. Think of his 783 charges of corruption on which his former financial adviser went down for 15 years imprisonment. Consider his views on equal rights, as enshrined in the Bill of Rights, which went out of the window in a parliamentary debate in which he bizarrely insisted that the majority has more rights than the minority. Remember his wildly contradictory positions on the role of religion in politics. As for his personal morality and leadership of the Moral Regeneration Movement and the national HIV-Aids body. And then there’s Nkandla…let’s not even go there.
These repeated affronts are not the stuff of which probity and integrity are made. They are more than adequate grounds for hounding Zuma out of office to face trial in a criminal court, if not on the 783 charges of corruption, then for his role in the Nkandla misspending and in the dis-appointment of Mxolisi Nxasana, our previous top prosecutor.
The last of these may seem to be the most trivial, but the abuse of power underlying the side-lining of Nxasana is profoundly wrong. Zuma’s role in it may turn out to be the Achilles heel of the president. His settlement agreement with Nxasana, under which the latter was paid the full undiscounted balance of his 10 year contract less tax (over R17 million) not to fulfil his duties, when, (as the settlement acknowledges), he is a fit and proper person to do so, is the subject of both civil and criminal cases.
Freedom under Law and Corruption Watch, have jointly sought to have the dismissal of Nxasana and the appointment of Shaun Abrahams in his place set aside as irregular and illegal. Accountability Now has laid criminal charges against the president and the minister of justice based upon the same factual matrix. The contention in the criminal case is that the settlement agreement evidences a corrupt activity of the kind prohibited by the provisions of section 9 of PRECCA, the legislation to prevent and combat corruption in SA.
Both matters took a dramatic turn on the president’s birthday (12 April 2017) when Nxasana filed an explanatory affidavit in the civil case. In it he explosively reveals that, contrary to what the president has said under oath in his opposing papers, Nxasana had never asked to be relieved of his position as head prosecutor. He annexes correspondence that provides strong corroboration of his version of events. He also explains that the president’s lawyer, Michael Hulley, put pressure on him to say, on oath, that he wanted to quit his job.
If the civil case comes to court before the criminal matter, it may become necessary to resolve this serious conflict of facts by way of oral evidence and cross examination of the president. Or the issue may be avoided by deciding the matter without regard to the disputed facts. This route is a distinct possibility as the applicants have a strong case anyway, without reliance on the explosive details now provided by Nxasana.
Whether the criminal proceedings are brought to trial first, or after determination of the civil case, the issue will have to be resolved in the criminal courts through the crucible of consideration of the conflicting versions: the president’s mere say so on the one hand, and on the other, the evidence of an officer of the court who is backed up by the contemporaneous correspondence.
Until Nxasana came forward with his version, the charges against the president were twofold: corruption and defeating the ends of justice in the conclusion of the settlement agreement which saw Nxasana leave office at great expense to the taxpayer and to the extreme relief of those being shielded from prosecution or disciplinary proceedings by the president. Now, it is feasible to add a charge of perjury given the questionable veracity of the contents of the president’s opposing affidavit in the civil case. It is also open to the prosecutor in the matter to add Hulley as an additional accused and to charge him with an attempt to defeat the ends of justice for seeking to get Nxasana to back up the lies of the president instead of giving a truthful account, as behoves an upright officer of the court.
Why then did the president lie about the apparently extraneous detail? Put differently, what relevance attaches to the desire of Nxasana to quit? A desire he denies so strenuously that he says he would like to have his job back. He also produces correspondence that supports his version of the way in which events unfolded in the run-up to the conclusion of the settlement agreement.
The answer is that the president has been correctly advised (for a change) that, if Nxasana did not want to quit, then the deal is tainted by corruption and the payment to Nxasana is a clear and obvious contravention of PRECCA. Upon conviction for the corrupt activity the president faces a minimum sentence of 15 years in prison unless, of course, he is pardoned by his successor in office. The prospect of imprisonment and disgrace is what has motivated him to lie, yet again, to save his own skin. If Nxasana is believed, the lie will be exposed and the term of office of the President will end in ignominy and quite possibly without a pension. All pension benefits are forfeited if an impeachment motion in the National Assembly succeeds.
To get the criminal case to court requires the necessary prosecutorial will to do so. Shaun Abrahams, the current National Director of Public Prosecutions, is in an impossibly conflicted position. Success in the prosecution will engender success in the civil case and will mean that he loses his job as top dog in the ranks of prosecutors. How he will resolve the conflict of interests remains to be seen. The conflict has been pointed out to the Hawks investigating officer in the case.
The Hawks have investigated the criminal complaints since July 2015; their investigation is complete, save for their inability to secure the co-operation of the department of justice to make available collateral correspondence and documents concerning the conclusion of the settlement agreement which lies at the heart of the prosecution case. The minister is clearly being protected by his loyal staff as he is a co-accused in the matter. If the collateral evidence is required by the prosecutor who runs the case, a search warrant can be obtained, if not, the matter is trial ready.
There is something Al Capone-esque (remember, mere tax evasion charges brought the Chicago gangster to justice) about the latest turn of events in the Nxasana saga. Imagine a little lie in a long affidavit about a seemingly insignificant detail of the circumstances leading to the conclusion of a settlement agreement precipitating the end of the political career of a president. Richard Nixon must be squirming in his grave.
The NEC of the ANC, as it ponders recalling the president, must be more divided than ever following the explosive disclosures in the affidavit filed by Nxasana. As the veracity and implications of what he has disclosed become more widely known and increasingly apparent, the pressure to end the term of office of Zuma will increase, unless it is true that he has captured the NEC, irrevocably so.
The country owes Nxasana a deep and lasting vote of gratitude for showing his “not for sale” independence and the type of qualities that are expected of a president, but are so manifestly lacking in Zuma. The sharp assegai in the affidavit of Nxasana could penetrate to the heart of the presidency and bring it to a swift end. The proper administration of justice demands that the issues between the two men be ventilated in court without delay. The country has several economic junk status ratings to recover from; recovery is best achieved rapidly, under a new president who does not lie so. DM
Paul Hoffman SC is a director of Accountability Now and the author of “Confronting the Corrupt”