ILL-FATED PERJURY CASE AGAINST THE PUBLIC PROTECTOR
By Paul M. Ngobeni
The gadarene rush and recent decision by the National Prosecution Authority (NPA) to pursue criminal perjury charges against Public Protector Mkhwebane will soon be exposed as a politically motivated charade and abuse of state institutions for factional political agendas. The ill-conceived prosecution is clear and irrefutable proof that the NDPP through her dogged determination to pursue a vindictive prosecution against the Public Protector has cast aside all pretence of professional neutrality and independence. The NDPP has unabashedly joined the anti-Mkhwebane band-wagon of those who seek to use state institutions to wage factional political battles against independent constitutional institutions. Fortunately for the Public Protector the extant perjury prosecution will end in an ignominious and calamitous defeat for the NPA and expose the corruption in an agency that has been floundering like a rudderless ship ever since Batohi was appointed as the NDPP.
The NDPP made a politically calibrated decision to institute criminal charges against Advocate Mkhwebane just as the Public Protector’s office was celebrating its first clean audit in its 25-year history. It is for the first time in its 25-year history that the institution’s financial statements have been found by the Auditor-General South Africa to be free of material misstatements and to have no material findings on performance reporting or non-compliance with legislation. Advocate Mkhwebane epitomizes leadership by example for this constitutional watchdog. It is also testament to Advocate Mkhwebane’s stellar leadership that it was only during her tenure that the closest the PPSA came to this prestigious audit outcome in recent years was in the 2017/18 and 2018/19 financial years when the institution received back-to-back unqualified audits with findings. Apparently the historic achievement was to the chagrin of the NPA and its political Svengalis who only pay lip service to fighting corruption. They were determined to rain on the public Protector’s parade and could not stomach letting her celebrate the historic achievement.
It is also significant that during the same week, The Star newspaper reported that President Cyril Ramaphosa, who is involved in bitter litigation against the public Protector, allegedly applied pressure to have Advocate Mkhwebane charged. The newspaper reported that “someone from Ramaphosa’s office made a call to a police officer ... asking why Mkhwebane was not arrested yet”. It added that pressure was being exerted to arrest Mkhwebane before January 13 “before she delivers a report in which Ramaphosa is being investigated for approving the ANC’s controversial trip to Zimbabwe on a defence force aircraft”. Notwithstanding that the presidency has dismissed the report as a “complete fabrication” the question remains as to why the NDPP would embark on a criminal prosecution of a head of a Chapter 9 institution which is bound to end in a complete fiasco.
In this document I sketch out why I believe the NPA will suffer a humiliating defeat in its perjury prosecution. The unprecedented criminal prosecution offends one of the core protections for criminal defendants that is the double jeopardy rule provided by our Constitution. The short version of the rule is that you cannot be prosecuted more than once for the same crime. It prevents prosecution for the same crime after an acquittal or a conviction, and it also prevents imposing multiple punishments for the same crime. The extant prosecution is an assault on a principle deeply ingrained in our system of jurisprudence, namely, that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting her to embarrassment, expense and ordeal and compelling her to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent she may be found guilty. Nor should the State be allowed to seek criminal conviction and punishment of a Public Protector who was already ordered to pay punitive costs amounting to hundreds of thousands of rands from her own pockets.
In order to appreciate the weakness of the state’s perjury case, one must consider the basis of the substantive allegations against the Public Protector. The first count alleges that about “ 24 November 2017 ... [ Mkhwebane] unlawfully and intentionally under oath deposed to an answering affidavit ... wherein she declared that she only had one meeting with the president [Zuma] which was on 25 April 2017, while knowing that the declaration was false”. This is based on a false premise and supposition that PAJA obligated the Public Protector to inform the other parties and to involve them in a meeting with the Presidency. The Supreme Court of Appeal has authoritatively ruled that PAJA has no application in the public protector’s work. Significantly both the High Court and the Concourt used the “Presidency” and President Zuma interchangeably and without making a distinction of meetings the Public Protector had with a team of advisors from the Presidency and meeting with Zuma himself.
The second count relates to an affidavit Mkhwebane deposed to dated April 2018 “wherein she declared that she had a second meeting with the president [Zuma] on 7 June 2017 and that the purpose thereof was to clarify the president’s response to the provisional report, while knowing that the purpose declared was not correct”. Was the purpose of the alleged meeting a material issue in the case? As Mogoeng CJ points out, the Public Protector herself disclosed all the information about the very same meeting in which it is alleged she withheld information. About the third count which is duplicative of the second, the charge sheet states that in an affidavit dated June 2018, Mkhwebane allegedly “declared that she did not discuss the final report/new remedial action with the president on 7 June 2017 while knowing that it was not true.” The NPA’s attempt to have former president Zuma loom large in the Public Protector’s investigation of the Absa matter is politically driven and is doomed to fail.
The NPA’s Double Jeopardy Hurdle
South Africa is a signatory to the International Covenant on Civil and Political Rights which recognises, under Article 14 (7) that: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." In a similar vein Section 35(3)(m) of the Constitution provides that an accused person has the right not to be tried for an offence in respect of any act or omission for which that person has previously been acquitted or convicted – a right that entrenches the common law right expressed in the maxim ‘nemo debet bis vexari pro una et eadem causa’ (it is the rule of law that a man shall not be twice vexed for one and the same cause). This is the right against double jeopardy which is of ancient origin and is almost universally applied. It is based on two main values. First, the need to ensure that matters reach finality, both in the interests of an accused and of the State. Second, the need to safeguard an individual against State oppression by placing constraints on the prosecuting authority to avoid successive prosecutions for the same conduct. See, Grayston Technology Investment (Pty) Ltd and Another v S (A225/2014) [2016] ZAGPJHC 249; [2016] 4 All SA 908 (GJ) (23 September 2016).
The constitutional safeguard against double jeopardy applies irrespective of whether the forum empowered to impose the sanction is a criminal court, a civil court or an administrative tribunal. Section 35(3)(m) of the Constitution gives expression to a fundamental principle which transcends the confines of purely criminal procedure. The provisions of that section are illustrative of the broader concept which underpins the plea of autrefois convict and acquit, and also res judicata; nl, “. . . die eenvoudige feit dat dit weersinwekkend is vir ons gevoel van billikheid en regverdigheid, dat . . . die gestrafte vir die tweede maal . . . weens dieselfde misdaad vervolg sou word” R v Manasewitz 1933 (AD) 165 at 177. Id. at para.125. These doctrines give expression to the same legal sentiment; a person should be protected from being repeatedly brought to answer in respect of the same conduct. They are intended to secure justice and reasonableness through the finality of proceedings. Id. at para. 126. See, also, S v Vorster 1961 (4) SA 863 (O) where Eksteen J was of the view that the plea of autrefois acquit derived both from the doctrine of res judicata and from considerations of reasonableness expressed in the maxim “nemo debet bis vexari pro una et eadem causa” which has the effect of preventing repeated prosecutions arising out of the same cause of action. The long-standing principle that a person should not be tried twice for the same offence or for events arising out of and related to that offence must be strictly applied in the Public Protector’s case. It also encompasses the principle that the Court can act to prevent a prosecution if the result will be an unfair trial. An application for a permanent stay can be launched expeditiously in this regard.
Beyond the general statement of these legal principles one can explain the double jeopardy concept by referring to decided cases. R v Carroll (2002) 213 CLR 635; [2002] HCA 55 is a decision of the High Court of Australia which unanimously upheld a Queensland appellate court's decision to stay an indictment for perjury as the indictment was found to controvert the respondent's earlier acquittal for murder. Carroll originally acquitted on appeal of the murder of a young baby in 1985 ( R v Carroll (1985) 19 ACR 410). He was later prosecuted for perjury based on an allegation his denial on oath, given in evidence at his murder trial, was a lie. The Queensland Court of Appeal set aside the conviction ( R v Carroll [2001] QCA 394). The DPP appealed. The High Court concluded that the trial should have been stayed, as it was an abuse of process. The court held that charging Carroll with perjuring himself in the earlier murder trial by swearing he did not kill the baby Deidre Kennedy was tantamount to claiming he had committed the murder and was thus a contravention of the principles of double jeopardy. The case caused widespread public outcry and prompted calls for double jeopardy law reform.
But as explained below, the Public Protector’s case does not engage the “acquittal” aspect of the doctrine – it pivots around the punishment issue. The first question is whether the public Protector suffered any “punishment” in the Public Protector v South African Reserve Bank [2019]ZACC 29 case. The answer is in the affirmative as demonstrated by the following paragraphs in the judgment:
[219] The High Court ordered that the Public Protector must pay the Reserve Bank’s costs on a punitive attorney and client scale. The High Court reasoned that a punitive costs order was justified by reason of the same circumstances which warranted the imposition of personal costs.162 These circumstances included: (a) the Public Protector’s failure to fully understand her constitutional duty to be impartial and perform her functions without fear, favour or prejudice; (b) the Public Protector’s failure to disclose in the final report that she had meetings with the Presidency on 25 April 2017 and 7 June 2017; (c) the Public Protector’s silence in the High Court about her meeting with the Presidency on 7 June 2017; (d) the Public Protector’s failure to meet with the reviewing parties; (e) the Public Protector’s failure to realise the importance of, and failure to make, full disclosure; and (f) the Public Protector having pretended that she had acted on advice from economic experts in compiling the final report.163 The High Court’s judgment on this aspect reads:
“Having regard to all the above considerations, we have to conclude that this is a case where a simple punitive costs order against her in her official capacity will not be appropriate. This is a case where we should go further and order the Public Protector to pay at least a certain percentage of the costs incurred on a punitive scale.”
[220] It does not follow that a punitive costs order will always be justified in circumstances where a personal costs order is warranted. An order for personal costs against a person acting in a representative capacity is in itself inherently punitive. The imposition of costs on an attorney and client scale is an additional punitive measure. This could, as pointed out in the first judgment, be viewed as “double punishment”. While the test for awarding a personal costs order or costs on a punitive scale may overlap, an independent, separate enquiry should be carried out by a court in respect of each order. Both personal and punitive costs orders are extraordinary in nature and should not be awarded “willy-nilly”, but rather only in exceptional circumstances.165
[221] This Court has endorsed the principle that a personal costs order may also be granted on a punitive scale.166 The punitive costs mechanism exists to counteract reprehensible behaviour on the part of a litigant.167…
[223] … Over the years, courts have awarded costs on an attorney and client scale to mark their disapproval of fraudulent, dishonest or mala fides (bad faith) conduct;175 vexatious conduct;176 and conduct that amounts to an abuse of the process of court.177…
[226] A punitive costs order is justified where the conduct concerned is “extraordinary” and worthy of a court’s rebuke.186 In SS, the “extraordinary” conduct included compromising the best interests of a minor child and this Court’s integrity by failing to comply with an order of this Court.187 Similarly, in Mtuze, it was the conduct of the applicant which justified a costs award against him on an attorney and own client scale, de bonis propriis.188 The double punitive award (personal costs on an attorney and client scale) made in this matter by the High Court, while rare and extraordinary, is not unprecedented.
The judgment paragraphs cited above leave no doubt that the Public Protector suffered “punishment” in the true sense of the word. Double Jeopardy doctrine provides three protections: 1) protection against a second prosecution for the same offense after acquittal; 2) protection against a second prosecution for the same offense after conviction; 3) protection against multiple punishments for the same offense.”(emphasis added) United States v. Mask, 101 F. Supp. 2d 673, 678 (W.D. Tenn. 2000). “The underlying purpose of the Double Jeopardy Clause is to protect the individual from repeated attempts by the government to obtain a conviction or multiple punishments and to prevent the State, with all of its power and resources to subject the person to the embarrassment, expense, and ordeal of repeated attempts to convict as well as preventing the enhanced possibility that even though innocent, the accused may eventually be found guilty.” Id. “In the context of punishment, the Double Jeopardy Clause prevents the Court, through the use of multiple punishments from exceeding the punishments prescribed by the legislature.” Id.
The disparate nature and effect of the double jeopardy Rule was made clear by the Australian Chief Justice and Justice Hayne in The Queen v Carroll at [9]:
'The expression "double jeopardy" can give rise to difficulty if the sense in which it is being used is not made clear. As was pointed out in Pearce v The Queen (1998) 194 CLR 610 at [9]:
"The expression 'double jeopardy' is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be 'punished again for the same matter' Wemyss v Hopkins (1875) LR 10 QB 378 at 381per Blackburn J. Further, 'double jeopardy's is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment."
In Pearce v The Queen (1998 194 CLR 610) Gummow J stated at [54]:
‘The third principle concerns the injustice to the individual which would be occasioned by a requirement to litigate afresh matters already determined by the courts. The maxim, nemo debet bis vexari pro una et eadem causa (it is the rule of law that a man shall not be twice vexed for one and the same cause), appears in Sparry's Case(1589) 5 Co Rep 61a [77 ER 148]. (The maxim applies not only to res judicata doctrines but also to vexatious litigation and abuse of process. Kersley, Broom's Legal Maxims, 10th ed. (1939) at 220.) In its application to criminal proceedings, it "has become known as the rule against double jeopardy' Rogers v The Queen(1994) 181 CLR 251 at 277.
When it comes to punishment aspect of the principle, the United States Supreme Court expressed the same view clearly in Ex parte Lange (1873) 18 Wall 163, at p 169 (21 Law Ed 872, at pp 876-877) where it stated:
"The common law not only prohibited a second punishment for the same offense, but it went further and forbid a second trial for the same offense, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted"."
This was cited in Green v. United States where the Court went on to State (1957) 355 US 184, at pp 187-188 (2 Law Ed 2d 199, at p 204). :
"The underlying idea, one that is deeply ingrained in at
least the Anglo-American system of jurisprudence, is that the
State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment,
expense and ordeal and compelling him to live in a
continuing State of anxiety and insecurity as well as
enhancing the possibility that even though innocent he may
be found guilty".
It is notable that in their joint judgment in The Queen v Carroll, Justices Gaudron and Gummow said that defendants exercising their right to testify should not be at risk of a subsequent prosecution for perjury in respect of their denial of guilt on the first charge (at [104]). The justices at [105] also touched on the related problem of evidence called in later proceedings, which might call into question the acquittal. Interestingly, the NPA through its amateurish perjury charge is opening up another avenue for the Public Protector to impugn the findings of the Concourt majority in the Absa judgment in their entirety.
The issue of double jeopardy in a broader context was considered by the English Court of Appeal in the VAT related matter of Han & Another v Commissioner of Customs & Excise & similar cases [2001] EWCA Civ 1040; [2001] 4 All ER 687 (CA). The court was concerned with civil penalties imposed by the Commissioner of Customs and Excise on taxpayers for dishonest evasion of VAT where there existed parallel provisions for criminal proceedings in respect of the same conduct. Although the court was split 2-1, it was unanimous as to the requirements for determining whether or not a person had already been subjected to a “criminal charge” as that term is understood in the European Convention. In interpreting the term “criminal charge”, the court agreed that it was necessary to have regard to the “substantive” rather than the “formal” conception of the term “charge”, and, quoting from a Strasbourg Court decision, said that this “. . . impels the Court to look behind the appearances and examine the realities of the procedure in question in order to determine whether there has been a “charge” within the meaning of Article 6. In particular the Applicant’s situation under domestic legal rules in force has to be examined in the light of the object and purpose of Article 6, namely the protection of the rights of the defence” (at 703e–f).
The purposive approach adopted in interpreting our Constitution and the perjury charges against Advocate Mkhwebane. She has already been “punished” through the punitive cost order imposed by the majority judgment of the Concourt which exceeds whatever fine could potentially be imposed by the criminal court following a perjury conviction. Both the majority and minority in Han were agreed that the laws developed by the European Community Courts identified three factors which determine whether a person has been subject to double jeopardy for purposes of Article 6. They are: a. the classification of the proceedings in domestic law; b. the nature of the offence; c. the nature and degree of severity of the penalty that the person concerned risked incurring”.
It was pointed out that the three factors are to be considered cumulatively. The point of departure between the majority and minority in Han lay in the weight to be placed on the first factor. The majority in Han considered that the categorisation of the proceedings is not decisive. A Court is simply concerned with whether or not the allegations required to sustain the sanction are criminal in character (at para 65 and para 75). In that case, the VAT legislation under scrutiny (s60) provided for a civil penalty pursuant to the decriminalisation of elements of the VAT Act. Accordingly, the court held by a majority that there was double jeopardy.
Double jeopardy has also been applied in the labour law context. In Mahlakoane v SA Revenue Service (2018) 39 ILJ 1034 (LAC), the appellant challenged the decision of the Labour Court to review and set aside a Commission for Conciliation Mediation and Arbitration (CCMA) award issued in her favour, the latter ruling that her dismissal from the South African Revenue Service (SARS) had been unfair. The appellant, who had been recipient of a child support grant in terms of the Social Assistance Act, was appointed to work for SARS and as a result, her entitlement to the grants came to an end. Notwithstanding her appointment, the appellant continued to enjoy the flow of the grants. When SARS got wind of the double-dipping, the appellant was charged with, amongst others, fraud and subjected to a disciplinary hearing (the first disciplinary hearing). She produced two South African Social Security Agency letters demonstrating that she had requested the payment of the grant to be stopped and as such, the Chairperson only found her guilty of continuing to receive the grants despite not qualifying therefor. As a sanction, she was issued with a final written warning. Two years later, evidence surfaced that the letters produced at the first disciplinary hearing had been fraudulent forgeries. SARS charged the appellant with at least five counts of misconduct, including fraud and forgery (the second disciplinary hearing). In the second disciplinary hearing, a sanction of dismissal was imposed on the appellant. She successfully challenged her dismissal in the CCMA, however, the Labour Court reviewed and set aside the CCMA’s ruling.
The LAC supported the view held in previous LAC decisions, that the principle of “double jeopardy” entails that an employee generally cannot be charged again with the same misconduct that he or she was either found guilty or not guilty of; and that there are, however, instances where breaches of this principle can be condoned, with the paramount consideration being fairness to both sides.
Notwithstanding the above view, the LAC drew a distinction between the charges levelled against the appellant in the first and second disciplinary hearings and held that the double jeopardy principle did not come into consideration in this case. It held that the main allegations in the first disciplinary related to the appellant continuing to take grants knowing well that she no longer qualified. The charges in respect of the second disciplinary hearing, on the other hand, centered on the falsification of the dates on the letters, which had never been in contention in the first disciplinary hearing. The LAC dismissed the appellant’s application with costs.
Viewed against the above principles, Advocate Mkhwebane stands a much better chance of getting a permanent stay in the perjury prosecution depending of course on how her legal eagles and celebrated silks choose to fight the battle. It is undeniable that the Constitutional Court already imposed a punitive cost order against her based on its findings that she had misstated facts in her affidavits. The NPA’s copy-cat case is based solely on the same issue of what she stated in her Affidavits in the litigation before the High Court and appeal to the Constitutional Court. The charges in the perjury criminal prosecution are identical to the issues considered by the Constitutional Court before imposing a ‘punishment” for her alleged conduct. It is an abuse of the process of the Court to pursue a gratuitous criminal prosecution simply to tarnish further Advocate Mkhwebane’s image. Even in the unlikely event she was convicted, it is inconceivable that a court would impose a penalty that comes even close to the hundreds of thousands of rands she has already paid per the Concourt’s punitive costs order. Advocate Mkhwebane’s victory depends on the strategy, tactics and skills of her lawyers pure and simple. I acknowledge that she is faced with a mobilized and hostile judiciary but I am not convinced that every judge would risk his reputation simply to appease the Ramaphosa faction of the ANC. She must argue the law and leave any disgraced politicians in judicial robes alone.
Does The Mandela Precedent Assist Advocate Mkhwebane?
Ironically Advocate Mkhwebane is not the first or only high-ranking public office holder whose testimony has been harshly criticized by our judiciary. During his presidency, the iconic former President Nelson Mandela was condemned by Justice William de Villiers who found that the evidence of the President was unsatisfactory bordering on perjury because he refused to answer certain questions, answered back and used the court for political rhetoric. See, President of the republic of South Africa and Others v South Arican Rugby Football Union and Others 1999 (4) SA 147 (CC). Mandela complained bitterly about being called a liar in the following terms: “Let me say, Judge, I never imagined that Dr Luyt would be so insensitive, so disrespectful, so ungrateful as to say of the President of this country that when I gave my affidavit and signed it under oath, I was telling lies. I was not being honest because that is what he says. I never imagined that he would do a thing like that.' (emphasis added). The Constitutional Court came to Madiba’s rescue and blasted De Villiers for his findings in the following paragraphs worth quoting at length.
[81] If these principles are applied to the present case, very little, if any, weight can be accorded to the findings by the Judge, whether express or implied, which impugned the honesty of the President on the basis of his demeanour. This is so for basically three reasons. First, as pointed out above, the irrevocable abdication finding by the Judge against the President was fundamentally and demonstrably wrong, even assuming that the President had used the words attributed to him in the press statement. It was wrong in law and on the facts; it was a fundamental misdirection that established a false basis for the Judge’s inferential reasoning; and it clouded and skewed his assessment of the probabilities and the credibility of the President in relation to virtually all the events subsequent to 5 August 1997. How seriously this flawed the Judge’s approach to the President’s demeanour and credibility appears from the judgment itself. Immediately before considering the President’s demeanour …
[82] Secondly, the Judge failed to have any regard to the failure by respondents’ counsel to cross-examine the President on vital aspects of his evidence relating to the events from 12 September 1997 onwards and accordingly erred in not having any regard to the consequences of such failure. As indicated above, the Judge misdirected himself in coming to the conclusion that the honesty of the President had been properly challenged. Such misdirection further substantially erodes the reliance which can be placed on any demeanour finding adverse to the President.
[83] Thirdly, the Judge avoided an express finding that the President was untruthful and, immediately after the second passage quoted in paragraph 81 above, said:
“That may again be due to lack of veracity, or unreliability, or a combination of both these factors. However, it is again unnecessary, to my mind, to attempt to determine its cause.
It is indeed unfortunate to have to come to these conclusions in regard to the credibility of the President.”(Citations omitted)
[84] Whatever the ordinary meaning of “unreliable” might be, there was no specific finding that the President had been deliberately dishonest and had engaged in the dishonest charade, pretending to consider the Tshwete file and to have regard to the advice given to him by Professors Gerwel and Haysom, then concocting reasons for his decision, and perjuring himself as a witness in order to mislead the court as to what had actually happened. No such finding would have been justified on the evidence and no such finding was made. Nothing short of such a finding would have justified the conclusion that the respondents had discharged the onus that was on them on this issue.
(h) The findings made concerning the President’s demeanour
[85] The President’s evidence and the findings made by the Judge concerning his demeanour must be seen in the context of the order that he give evidence and the manner of his cross-examination. We were referred to no case, and we know of none, in which a head of state has been required to give oral evidence in review proceedings to justify a decision taken as part of his or her official duties. The President was ordered – over objections by his counsel – to give evidence in response to a double hearsay statement which was inadmissible against him. He honoured the order, came to court at considerable inconvenience to himself, and was cross-examined for more than a day.
[86] In evaluating the President’s evidence the Judge failed to appreciate the implications of the extraordinary order he made requiring the President to give evidence, the sensitivities it engendered and the political subtext it gave to the case which involved not only the litigants and their legal representatives, but also the Judge as the judicial officer in control of the proceedings. The political atmosphere was introduced by the averment that the President had rubber-stamped the Minister’s decision, the demand that he subject himself to cross-examination, a suggestion that the government was interfering in sport in much the same manner as had been the case under apartheid, and contentions in Dr Luyt’s founding affidavit that the Minister’s representations to the President were motivated by an ulterior purpose, including “resentment of the fact that rugby is controlled by whites and mostly Afrikaners and not by the government”; and resentment of the fact that he and SARFU had “not been prepared to meekly and tamely tolerate government interference with and intervention in the affairs of SARFU” and resentment of “SARFU’s refusal to effectively hand over control of rugby, its assets and management to the government.”
[87] The Judge commented adversely on the President’s evidence, finding that he had failed or refused to answer a number of questions, had used the court as a podium for political rhetoric, had suggested which of the witnesses should be believed, had queried rulings by the court, had insulted the cross-examiner, had been argumentative and had attempted to intimidate the cross-examiner into refraining from questioning him on matters relating to credibility, and had made defamatory remarks concerning Dr Luyt. The passages in the record cited in support of these findings are, however, not really findings as to demeanour, but more in the nature of general criticisms of the President’s evidence.
[88] It is correct, however, that the President was at times argumentative, and that he also made disparaging comments concerning the cross-examiner. The President’s attitude, however, needs to be understood in the context of the case described above and does not provide the basis for a finding that the President was a dishonest or untruthful witness. The Judge says that an impression was created that the President was attempting to deter the cross-examiner from cross-examining him on matters relating to credibility. The President was obviously deeply offended that his evidence concerning what he had said to the Minister was being disputed. It is clear from various passages in his evidence that he felt humiliated by the cross-examination and considered the attack upon his credibility in relation to the events of 5 August 1997 to be a personal affront which affected not only himself personally, but also the people of the country whose representative he was. He also clearly thought that his being summoned to court as a witness to be cross-examined on his affidavit, and his denial of the averment that he had rubber-stamped the Minister’s decision, revealed a lack of respect for him as President, by the Judge, the respondents and their legal representatives. His feelings are revealed in a brief comment which he made to the cross-examiner:
“To question the statement made by the President of the country made under oath, is an experience that is new. I do not know and I say this again with respect, I do not know if under the previous order a thing of this nature would have happened.”
[89] Examples given by the Judge of “unbridled defamation” of Dr Luyt were the following:
“Let me say, judge, I never imagined that Dr Luyt would be so insensitive, so disrespectful, so ungrateful as to say of the President of this country that when I gave my affidavit and signed it under oath, I was telling lies . . . I never imagined that he would do a thing like that. [As appears from para 74 above, the President was referring to the fact that the respondents were challenging his evidence in relation to the events of 5 August 1997.] There must be something why [Dr Luyt] is resisting an investigation to find out what is going on in Sarfu and people who know, they say he was alright, he was prepared to work with the task team, when they limited their investigation to Sarfu, but once they decided to probe into the financial affairs of the organisation, Dr Luyt saw red. It was like a red cloth in front of a bull and I think Dr Luyt in his founding affidavit is giving a message which he does not want us to know.
…
[91] There is no doubt that the President was concerned about Dr Luyt’s turnabout when the request was made for financial information and that, rightly or wrongly, he suspected that this might mean that credence should be given to the allegations that were being made. He was also hurt and surprised that Dr Luyt had challenged the statement in his affidavit that he had not abrogated his responsibility to the Minister. The President’s evidence reflects this suspicion and hurt, but does not justify the adverse comment made by the Judge nor is it justified on a reading of his evidence as a whole.
[92] On the rare occasion that the President was asked by the Judge to answer questions he did so. The only time he demurred was when he believed (wrongly as it turned out) that the ruling had been given as a result of a misrepresentation by counsel of what his evidence had been. This occurred towards the end of his evidence and at a time when he was obviously very angry at the way he had been cross-examined. The President’s intervention may have been inappropriate and was shown to be incorrect. It does not, however, have any bearing on his integrity.
[93] In view of the material misdirections which taint the entire judgment, no purpose would be served by adding to an already long judgment by analysing the various passages from the record cited by the Judge. In our view these passages, read in the context of the President’s evidence as a whole, do not reflect adversely on the President’s integrity or credibility as a witness. The cross-examination addressed to him was repetitive, argumentative and at times speculative. The President was justifiably irritated and angered by the circumstances in which he had been ordered to court and by the manner in which he was cross-examined. The passages cited by the Judge reflect in the main such anger and irritation and have no bearing on credibility.
[94] The Judge said:
“The court is very conscious of the fact that the President is no longer a young man, that he has suffered much and that it must have been a particularly traumatic and humiliating experience to have been compelled to testify under circumstances where he perceived his veracity to be doubted.”
He seems to have lost sight of these considerations, and to have made his findings without due regard to the circumstances personal to the President. In testing the President’s powers of recollection, his familiarity with detail and the consistency of his testimony, insufficient regard seems to have been given to the demands of his office, the number of disparate matters he is called upon to deal with daily, the sheer mass of documentation that must pass through his hands every day, and the reliance he is inevitably forced to place, in the execution of all his duties, on his office staff in general, and on his Director-General and his personal legal advisor in particular – matters to which the President referred on more than one occasion during his evidence. The entire context in which the President is compelled to discharge his duties and in which he was compelled to testify was all but ignored by the court in its evaluation of the President’s demeanour as a witness and his general credibility.
[95] The President’s evidence under cross-examination certainly shows that he was, at times, impatient, imperious, hurt, angry and even insulting. None of these reactions, however, taken individually or cumulatively, warrants the inference that the President’s testimony on the crucial issue, that is whether he himself had considered the question whether a commission should be appointed or not in the period between 12 and 26 September 1997, was untruthful or unreliable, particularly not when evaluated, as it ought to have been, in the context to which we have referred.
(i) Reasons given for the credibility finding against the President
[96] The Judge devoted 25 pages of his judgment to considerations which in his view had a direct bearing on the credibility of the President’s evidence. He identified 13 grounds which, in his view, cumulatively suggested that the President’s evidence was not to be believed. These grounds relate, in the main, to the following matters:
(a) the meeting between the Minister and the President on 5 August 1997;
(b) when he became aware of the press reports of 7 August 1997 and his failure to repudiate them immediately;
(c) the question of how long it took the President to peruse the Tshwete file and how thoroughly he perused it; and
(d) the question of when and by whom the terms of reference for the commission were prepared.
The contradictions identified are either not contradictions at all or are so insubstantial or unsubstantiated, as fairly to be categorised as make-weights.
[97] Before considering the period 12 – 26 September 1997, we shall examine two of the main criticisms in the judgment relating to the events of August 1997. The first of these relates to the way the President dealt with cross-examination on whether he instructed the Minister to provide a motivation if he sought the appointment of a commission, or whether he gave him a choice to do so. The conclusion reached by the Judge was:
“The different versions put forward both in the further supplementary affidavit and in the course of the evidence referred to above, are so contradictory that the credibility of the President’s evidence in dealing with this meeting of 5 August 1997 must be subject to serious doubt”.
…
[108] It is implicit in these findings that the President's legal advisors had been told that the President admitted the comment and that they therefore did not enter a denial of the statement, but sought instead to strike out the averment. It is also implicit in the finding that when it was appreciated that the “position had become [indefensible]”, the President’s legal advisors were subsequently party to the filing of perjured affidavits by him, well knowing that the affidavits were false and that the explanation given in them for not having dealt with the averment in the answering affidavit was not true.
[109] It was never suggested to the President that this is what happened. Although he was cross-examined as to why the statement had not been dealt with in his answering affidavit, the line of cross-examination was that, in the absence of such a denial it was reasonable for SARFU to assume that such a statement had been made, and that in the interest of openness and transparency the President ought to have insisted on the matter being dealt with in the first set of affidavits. The fact that he had received advice to the contrary and acted on it was never disputed. The finding made by the Judge in this regard imputes dishonesty, not only to the President, but also to his legal advisors. It is a startling finding, for which no basis is to be found in the evidence, nor on the probabilities. It must be rejected. In our view, the President’s version is both probable and supported by the evidence. It provides no basis at all for an adverse credibility finding.
[112] The conclusion that there was a contradiction in the President’s evidence in this regard is incorrect. Neither the letter nor the affidavit stated that the President had considered “all” the annexures, or that he had spent a considerable time in doing so. What he said was that he had carefully considered the material placed before him and had taken a period of over a week to consider whether the appointment was warranted. The Tshwete file contain more than 700 pages of annexed documents, a large number of which were newspaper clippings. It was not necessary for the President to have perused each and every annexure. The greatest criticism in this regard that can be levelled at the President’s evidence related to the fact that when he was cross-examined in March 1998 he could not recall in any detail the circumstances set out in the annexures to the memorandum relating to the events of February to August 1997 and SARFU’s version of the interaction between the Department and SARFU during this period. The reason for his inability to recall was not probed in cross-examination and it remains unclear whether the President was unfamiliar with those events at the time that he decided to appoint the commission, or whether he had forgotten the details when he came to be cross-examined, nearly six months later. In the absence of cross-examination in this regard, no conclusions of fact can be drawn on this issue and certainly no adverse credibility findings can be made.
[123] As stated in paragraph 66 above, the respondents could only succeed in their submissions relating to the abdication of responsibility on one of three alternative bases. First, the President did not consider the question of the appointment of the commission at all in the two weeks preceding the appointment of the commission on 26 September 1997 which would mean that all his evidence in this regard was a mendacious fabrication. Secondly, although he did consider the appointment of a commission, he did so merely as a charade either because he thought he had irrevocably abdicated his power to the Minister during August 1997. Thirdly, having abdicated his power to the Minister, he was determined not to consider the matter at all. Therefore, the question central to this part of the case was whether the President’s evidence concerning what he did in September 1997 was deliberately dishonest, either on the basis that it was a complete fabrication, or on the basis that his conduct constituted a charade, and whether the letter written shortly after that in which detailed reasons were given for his decision, was false. The Judge failed to address these issues pertinently. We have already pointed to the fact that the President’s evidence on crucial issues concerning the advice given to him by Professor Katz and how he responded to it, is consistent with the probabilities, and with Professor Katz’s evidence; that there is no evidence to contradict it, and that it was never suggested to the President that such evidence was given dishonestly.
[124] An inference of dishonesty cannot be drawn from the statements referred to by the Judge as being contradictory, most of which were not canvassed with the President in his evidence, and in our view display, at best for the respondents, discrepancies of little moment and of no relevance to the crucial issues in this case. We agree with the well-known comment by Mr Justice Nicholas in an article in the South African Law Journal 102 (1985) at 32. See also his judgment in S v Oosthuizen 1982 (3) SA 571 (T) at 575E – 577C.
“Where [a witness] has made contradictory statements, since both cannot be correct, in one at least he must have spoken erroneously. Yet error does not in itself establish a lie. It merely shows that, in common with the rest of mankind, the witness is liable to make mistakes. A lie requires proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.”
[125] All that need be added to what has already been said, is that the criticisms of the President’s evidence provide no justification for rejecting his evidence concerning his discussion with Professor Katz, and what happened thereafter, as being false, or otherwise incorrect. In the circumstances, the finding that the President had abdicated his responsibility and merely “rubber-stamped” a decision by the Minister was clearly wrong.
The lengthy quotations from the above Concourt’s judgment was deliberate and for the following illustrative purposes: First, it highlights NPA’s lackadaisical approach in not considering the record as a whole and the totality of the circumstances to determine whether the split Concourt judgment criticism of Advocate Mkhwebane points decidedly in one direction of perjury and was justified in light of the evidence. That could not be. As the dissenting judgment of Chief Justice Mogoeng and Justice Goliath in Absa rejected the imputations of dishonesty and perjury the NPA is starting its entire case with a serious hurdle and palpable reasonable doubt. Moreover, even the majority judgment which conflates lack of diligence as a litigant with dishonesty never went so far as to allege that perjury has been established beyond reasonable doubt. What this means is that in the criminal trial for perjury Advocate Mkhwebane is not bound by the majority decision and in light of contrary findings by the dissenting justices it would be extremely difficult to prove all the elements of the crime of perjury beyond reasonable doubt. The SARFU court observation is particularly important in a prosecutor’s consideration of a perjury charge. As the Concourt puts it where a witness “has made contradictory statements, since both cannot be correct, in one at least he must have spoken erroneously. Yet error does not in itself establish a lie. It merely shows that, in common with the rest of mankind, the witness is liable to make mistakes. A lie requires proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.” The specific reasons cited in the indictment for alleging that the Public Protector perjured herself are themselves revealing of a confused and lazy NPA mindset. The NPA is blithely oblivious to the fact that the Concourt erroneously relied on PAJA in concluding that the Public Protector was obligated to afford Absa an opportunity to participate in the meeting with the team from the Presidency and that she was obligated to inform those affected about her meeting with the Presidency. The inference was that her failure to do so or to reveal details of her meetings with the Presidency and State Security Agency was deliberate and calculated to mislead. But a perjury case cannot be built on the speculative allegation that a witness failed to disclose or lied about an immaterial or inconsequential matter. Here the SCA in Minister of Home Affairs v. The Public Protector 9308/2017)(2018) ZASCA 15 (15 March 2018) (Lewis, Majiest; Willis JJA;Plasket and Motlhe AJJA) stated that the investigative powers of the Public Protector are very broad and she enjoys complete freedom to investigate acts of maladministration and corruption. The SCA concluded that the “Office of the Public Protector is not a department of state or administration and neither can it be said to he part of the national, provincial or local spheres of government. It is an independent body that is answerable only to the National Assembly…It is, however an institution that exercises both constitutional powers and public powers in terms of legislation.” Id. at para.35. Further the SCA opined that the Office of Public Protector “does not fit into the institutions of public administration but stands apart from them” and that “it is a purpose-built watch-dog that is independent and answerable not to the executive branch of government but to the National Assembly.” Id at para.37. Further the SCA pointed out that the Public Protecro’s function “is not to administer but to investigate, report on and remedy maladministration.” Id. The Court ruled that the Public Protector has unbridled discretion in the matters she investigates and how she investigates them. The failure to include some affected person when interviewing another person during the investigation is simply irrelevant as PAJA has no application there. The NDPP was obligated to analyze the conflicting judgments of the Absa case in an intellectually rigorous manner. But her political blinders prevented her from doing so.
In SARFU, judge De Villiers’ unwarranted attacks on Mandela’’s integrity and his credibility as a witness serve as a cautionary lesson that even a judicial officer’s attack on the integrity of a person must be approached with caution. It is not an infallible gospel truth. Had the SARFU Concourt adopted a lackadaisical approach to the task and an analysis similar to the NDPP, judge de Villiers’ attacks on Mandela would have become a permanent stain on Mandela’s reputation. Just as Mandela had the appeal avenue which eventually enabled him to vindicate his good name, the Public Protector is not foreclosed from attacking the sloppy work of justice Khamphepe at the subsequent criminal trial and using the reasoning of the dissenting justices to argue that no perjury can be established beyond reasonable doubt. To the extent that the NPA relies on any court judgment the Public Protector is entitled to call those judges as witnesses. An aggressive approach is warranted as the Public Protector’s enemies have made clear their intent to finish her off by any foul means necessary.
As the Concourt observed in SARFU in the absence of cross-examination in regard to certain factual issues, one should be hesitant to draw conclusions of fact or to make adverse credibility findings about a witness. Advocate Mkhwebane filed affidavits in motion proceedings where she was never cross-examined – she responded to a review application by the applicants and made submissions on matters she believed to be relevant and germane to the issues raised by the applicants and on her understanding of the law. As the SARFU court noted, an “error does not in itself establish a lie. It merely shows that, in common with the rest of mankind, the witness is liable to make mistakes. A lie requires proof of conscious falsehood, proof that the witness has deliberately misstated something contrary to his own knowledge or belief.”
A prudent NDPP would have known that a perjury case based on prior court proceedings is exceedingly difficult to prosecute. As far back as the apartheid years, the Report of the Commission of Inquiry into Criminal Procedure and Evidence (RP78/1971) 1971 (the Botha Commission) observed.: “It is well known that criminal proceedings are seldom instituted against persons who are alleged to have committed perjury.” The US President's Commission on Law Enforcement and Administration of Justice expressed similar observations and concluded in 1967-68 that the federal perjury sanction was not a sufficiently effective deterrent to false testimony because so few perjury prosecutions were brought. This by no means suggests that perjury is not a crime that should be prosecuted it simply implies that prosecution will ordinarily occur in the clearest of cases where evidence supporting the perjury allegations is particularly strong. Accordingly when the NPA institutes criminal proceedings in a case arising from a split judgment in which judges sharply disagreed on the very issues alleged to constitute perjury an astute prosecutor would be more circumspect and tread carefully before unleashing the machinery of public prosecution against a Public Protector. From this vantage point members of the public are entitled to be skeptical and to take a jaundiced view of the motives for prosecution as a whole.
Conclusion
The Public Protector must fight the perjury case because her entire professional life depends on it. Her political enemies know that the parliamentary inquiry currently underway is unlikely to produce the impeachment results they are hoping for. The parallel criminal prosecution is an opportunistic stratagem that may, if successful, be used to circumvent the impeachment process altogether. The theory here is that if there is a criminal conviction for perjury, the Public Protector would cease to be a fit and proper person to head the powerful Chapter 9 institution and she would be forced to resign. Just like in the Advocate Jiba matter the white-dominated General Council of the Bar (GCB) would also be roped in to seek Advocate Mkhwebane’s disbarment. We know that Advocate Jiba who was disbarred ultimately beat her nemesis hands down and won in both the SCA and the Constitutional Court. Tellingly she left the white racists advocates’ faces crimson red like boiled lobsters. The Public Protector must likewise take the war to the racists!
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