In answering questions about the unwillingness of her department to make the trove of Zondo commission documentation available to the National Prosecuting Authority (NPA), the minister said much of the material was hearsay that cannot be used in criminal prosecutions.

That attitude betrays a fundamental misunderstanding of the law and the obligation to be open and accountable that binds government. It is irrelevant that some of the Zondo material is hearsay. It is perfectly feasible for an alert prosecution service to follow up on the hearsay, go to its source and obtain admissible evidence that cures the hearsay with the minimum effort. The hearsay is useful to investigators because it points them in the right direction. This is perhaps why it is being kept from them.

For example, when Angelo Agrizzi told the commission he had heard that Bosasa paid for Gwede Mantashe’s security apparatus at his private properties with a view to maintain the flow of tenders to Bosasa, he was imparting hearsay. By allowing the prosecution service to identify those involved and take statements from them it could be tested and cured if found to be true.

That Mantashe later admitted receipt (as “gifts”, he said) of the apparatus also cures the hearsay and clears the way to test the cogency of his defence that he was merely a private individual accepting a favour from a friend and wasn’t involved in a corrupt activity in breach of the relevant legislation.

Simelane is not a lawyer; she has been badly advised to raise the hearsay red herring and doesn’t have the expertise to question and reject the poor advice. If the president is unwilling to dismiss her for her VBS Mutual Bank involvements, she should simply resign before she embarrasses herself again.

The “final responsibility over” the NPA that the minister has does not extend to micromanaging corruption investigations. Our anticorruption machinery of state is meant to be free of executive control, but clearly it is not.

Paul Hoffman
Director, Accountability Now