By Sphumelele Ndlovu, Postgraduate Diploma in Journalism and Media Studies student
A fully-packed Moot Room, which included Rhodes University Vice-Chancellor Dr Sizwe Mabizela, and members of the local National Prosecuting Authority, welcomed legal legend Visiting Professor Wim Trengove SC on 10 September 2018.
Professor Trengove is a highly decorated advocate who took silk in 1987 and is an honorary professor of law at Rhodes University.
His lecture, titled “The Good, the Bad and the Ugly in the NDPP”, focused on the danger related to the National Director of Public Prosecutions (NDPP) losing independence. To illustrate, Prof Trengove captivatingly narrated the story of how the head of the NDPP was used as a pawn in a chess game of power and looting state resources.
The story started in June 2005, when the businessman Schabir Shaik was found guilty on two corruption charges and one charge of fraud. The man he was convicted of soliciting a bribe for, his friend and client then Deputy President Jacob Zuma, was not charged for any crime. Zuma was instead relieved of his duties. Charges were then levelled against Zuma by then head of NDPP, Vusi Pikoli in 2005, but were dismissed the following year by the Pietermaritzburg High Court.
In 2007, the charges were reinstated but were soon withdrawn by then head of the NDPP, Mokotedi Mpshe. Mpshe had taken over from Pikoli, who had been suspended following the arrest of the then Police Commissioner, Jackie Selebi. The Ginwala Report recommended that Pikoli be reinstated, but instead, he was removed from his position by then President, Kgalema Motlanthe in 2008.
Choosing not to pursue the matter of the lawfulness of his removal from the National Prosecuting Authority (NPA), Pikoli accepted a 7.5 million settlement and was replaced by Menzi Simelane in 2009.
In 2011, the Supreme Court of Appeal (SCA) set aside Simelane’s appointment. Nomgcobo Jiba started acting as the NDPP pending the appointment of a permanent NDPP by the president. After pressure from the Council for Advancement of the South African Constitution (CASAC) to retain a permanent NDPP, Mxolisi Nxasana was appointed.
Nxasana instituted disciplinary action against Lawrence Mrwebi and his predecessor, Nomgcobo Jiba for the decision to drop charges against Richard Mdluli, a former criminal intelligence boss. This appeared to upset Zuma, who in addition to trying to prove Nxasana unfit for duty, had his lawyers send Nxasana multiple letters requesting that he resign and offering him increasingly large amounts of money to do so.
According to Prof Trengove, this plan eventually succeeded when Zuma’s lawyers sent Nxasana a blank settlement agreement to vacate office. Nxasana, who was known as a man of high integrity, finally relinquished when the President agreed to pay him an amount of R17.3 million – what his ten-year contract was worth - and left office to be replaced by Shaun Abrahams.
After interventions from civil society groups Freedom Under Law, Corruption Watch and CASAC, the Constitutional Court found Nxasana’ s departure from office and the subsequent hiring of Abrahams was unlawful. As it stands, the country is awaiting word of the new NDPP from President Cyril Ramaphosa.
When asked by an LLB student whether he thinks the Constitution and the National Prosecution Authority Act should be amended to prevent similar future abuse, Prof Trengove explained, “The law can only go so far. It is up to the politicians and civil society to enforce the law.”
The talk proposed that although South Africa has one of the best Constitutions in the world, it is imperative that all stakeholders - including the public – should support it. Although the problem has not been entirely solved, Trengove believed that there is hope. “The wheel has turned, and we are going to get there,” he concluded.