Acquit Bathabile Dlamini to End Political Corruption of Our Judiciary

 Acquit Bathabile Dlamini to End Political Corruption of Our Judiciary

By: Paul Ngobeni 

I have previously written about the ANC Women’s League President, Bathabile

Dlamini’s prosecution as follows:

 

… the NPA’s perjury prosecution against Minister Bathabile Dlamini is a political prosecution walking on stilts and having no prospect of success. Accordingly, it should come as no surprise that the NPA claims to be ill-prepared for such a supposed slam-dunk case.  It is a damning indictment proving that political machinations and not the law are the motivating factors in such cases. Low level prosecutors are sometimes pressured by their superiors such as the Director of Public Prosecutions to bring meritless cases they clearly lack the will and skill to prosecute.  That form of abuse must be halted forthwith though a change in leadership of the country.

See, https://constitutionalcrossroads.blogspot.com/2021/11/what-bathabile-dlamini-perjury.html

 

Perjury Prosecution As A Political Weapon.

Perjury prosecution can be the most potent political weapon deployed against the political enemies of those in power. It is not surprising that in the course of  President Ramaphosa’s legal battle with the Public Protector, Advocate Mkhwebane, perjury was amongst the charges thrown at the Public Protector. In a similar vein, the ANCWL’s principled stance against male chauvinism and its persistent insistence that women must assume leadership of the ANC and country has seen its president Bathabile Dlamini facing perjury prosecution that the NPA is failing to handle competently. As one American lawyer, Robert E. Scully, Jr astutely observed:

 

Although lying under oath is endemic, perjury is rarely prosecuted. When it is, the defendant is usually a politician. The prosecution of Alger Hiss was probably the most famous political perjury prosecution ever in the United States. It made a young anti- communist California Congressman named Richard Nixon a household name. ALLEN WEINSTEIN, PERJURY: THE HISS-CHAMBERS CASE (Random House 1998). The recent perjury conviction of Kathleen Kane, the Attorney General of Pennsylvania, for lying about her role in leaking grand jury testimony to embarrass a political opponent is a modern case in point. Jess Bidgood, Pennsylvania’s Attorney General is Convicted on All Counts, NEW YORK TIMES (August 15, 2016) http://www.nytimes.com/2016/08/16/us/trial-kath- leen-kane-pennsylvania-attorney-general.html  More memorable for those of us of a certain age, President Bill Clinton testified falsely under oath in a judicially supervised deposition in a federal civil case that he did not have sexual relations with Monica Lewinsky. He was not prosecuted for perjury despite being impeached by the House of Representatives, fined $900,000.00 for civil contempt by the presiding federal judge, and having had his Arkansas law license suspended for five years for the falsehood. Final Report of the Independent Counsel In re: Madison Guaranty Savings and Loan Association Regarding Monica Lewinsky and Others at 41-49 (March 6, 2002) (explaining the decision not to prosecute). Absent some such public notoriety, however, the ordinary lying witness is usually ignored by busy, underfunded, and politically astute prosecutors. The Department of Justice U.S. Attorney’s Manual standards for federal perjury prosecutions are high.” Impeachment with Unadjudicated Perjury: Deadly Weapon or Imaginary Beast?

Robert E. Scully, Jr.; Litigation News, Virginia State Bar, Volume XVII, Number IX; December 2016.

 

These observations are not unique to the USA and are not of recent vintage. In South Africa under apartheid, 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 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.  A perjury prosecution is by definition a major legal gamble which must not be undertaken by amateurish prosecutors pursuing partisan political battles. As shown here, the obstacles in proving the crime of perjury can be insurmountable.

 

 The NPA's Weak Presentation of Evidence 

 

A person commits perjury when he intentionally lies under oath, usually while testifying in court, administrative hearings, depositions, or in answers to interrogatories. Perjury can also be committed by knowingly signing or acknowledging a written legal document (such as affidavit, declaration under penalty of perjury, deed, license application, tax return) that contains false information.

But the basis of the perjury charge against Bathabile Dlamini is not what she said under oath in motion proceedings before the Constitutional Court. Rather, it is what the NPA claims she omitted to include in her submissions to that Court. That omission can be a crime such as defeating the ends of justice and/or contempt of court but it is simply not perjury. Moreover, in this case the impugned statements are her affidavits which are couched in the usual cliches’ like “The facts and circumstances as set out in this affidavit fall within my personal knowledge and are to the best of my knowledge both true and correct, except where the context indicates otherwise.” In the context of motion proceedings in civil court, the crime of making false statement would involve knowingly and willfully making a false statement about a material fact, or falsifying or covering up a material fact. This latter point includes knowingly omitting information that is material. The key point is the speaker's intent: that the speaker has knowingly made the false statement, or omitted relevant information. A material fact is information of fundamental importance to a case, not information either peripheral or irrelevant to the issue being litigated.  Any experienced litigation lawyer would tell you that litigants do not always agree on what information is of fundamental importance to a case.  All said and done, omissions in presentation to the court are not perjury per se.

 

Needless to state that the NPA knowing that it had no winnable case succumbed to the pressure of white-controlled NGOs and liberal groupings like Black Sash and FUL, to present a case that was doomed to failure from the very onset.  Initially the NPA planned to present two witnesses but that plan was eventually abandoned and it settled on one witness, former Sassa CEO Thokozani Magwaza who was expected to testify against Bathabile Dlamini as a star witness.  But in doing so, the NPA ignored an admonition from Judge Ngoepe who was not impressed with Magwaza as a witness.  Judge Ngoepe stated:

 

            6.2 Thokozani William Magwaza

The criticism I have against Mr. Magwaza is not that he was not a credible witness, or that he was evasive or not telling the truth. He was just overcharged, almost unstoppable. He would be too elaborate where he could have been concise, and tended to go too much into context. On occasions he had to be brought back to the question, and asked to limit himself thereto…Rather, he appeared to be someone who had long been yearning for, and finally got the opportunity to ventilate as much possible bottled up complaints about the Minister and the work of the work streams.”

 

It is just mind-boggling how the NPA could ever hope to win a perjury prosecution on the basis of Mr.Magwaza’s testimony alone. An “overcharged, almost unstoppable” witness who had been yearning “to ventilate as much possible bottled up complaints about the Minister” is hardly the stuff that a star witness is made of.

The NPA knew or should have known that for a perjury charge to stick, the evidence must be deliberately false - witnesses are not at risk of being charged with perjury simply because they may get some part of their evidence wrong, that through memory lapse forgot important aspects of evidence in a case or that they omitted immaterial and inconsequential details from their evidence. Perjury charges are usually reserved for instances where it is very clear that a person has deliberately lied about an important aspect of the evidence.

 

The NPA is faced with another major dilemma in the extant prosecution – as a general rule, there must be some ‘corroboration’ for a perjury charge. In other words, there must be some independent evidence capable of supporting the allegation of a deliberate lie. It is never enough for a person to be convicted of perjury simply because they assert a fact and they are not believed about that fact. See, the case of S v Gentle 2005 (1) SACR 420 (SCA) which states the following with regards to corroboration: ‘It must be emphasised immediately that by corroboration is meant other evidence which supports the evidence of the complainant, and which render the evidence of the accused less probable, on the issues in dispute’. Id. at 430.  It is true that when assessing the evidence at the stage when the State closes its case, the Court does not conduct a searching inquiry into the credibility of the State’s evidence. The judge’s role in assessing a section 174 application is not to assess credibility. But the court is entitled to disregard the State’s evidence and discharge the accused where the evidence is of ‘such poor quality’ that no reasonable man could convict the accused on it. S v Mpetha & Others 1983(4) SA 262 at 265D – G.  That is exactly what we have in the Bathabile Dlamini prosecution.

 

As the Supreme Court of the Philipines ruled in Villanueva v. Secretary of Justice,

G.R.No. 162187, 18 November 2005, the mere assertion of a false objective fact is insufficient to prove the crime of perjury. There is a need to prove malicious intent, and as such a statement of false belief is not perjury:

A mere assertion of a false objective fact, a falsehood, is not enough. The assertion must be deliberate and willful. Perjury being a felony by dolo, there must be malice on the part of the accused. Willfully means intentionally; with evil intent and legal malice, with the consciousness that the alleged perjurious statement is false with the intent that it should be received as a statement of what was true in fact. It is equivalent to "knowingly." "Deliberately" implies meditated as distinguished from inadvertent acts. It must appear that the accused knows his statement to be false or as consciously ignorant of its truth.

Perjury cannot be willful where the oath is according to belie for conviction as to its truth. A false statement of a belief is not perjury. Bona fide  belief in the truth of a statement is an adequate defense. A false statement which is obviously the result of an honest mistake is not perjury.

           

There are two essential elements of proof for perjury: (1) the statement made by the defendants must be proven false; and (2) it must be proven that the defendant did not believe those statements to be true.

 

Knowledge by the accused of the falsity of his statement is an internal act. It may be proved by his admissions or by circumstantial evidence. The state of mind of the accused may be determined by the things he says and does, from proof of a motive to lie and of the objective falsity itself, and from other facts tending to show that the accused really knew the things he claimed not to know.

A conviction for perjury cannot be sustained merely upon the contradictory sworn statements of the accused. The prosecution must prove which of the two statements is false and must show the statement to be false by other evidence than the contradicting statement. The rationale of this principle is thus:

... Proof that accused has given contradictory testimony under oath at a different time will not be sufficient to establish the falsity of testimony charged as perjury, for this would leave simply one oath of the defendant as against another, and it would not appear that the testimony charged was false rather than the testimony contradictory thereof. The two statements will simply neutralize each other; there

must be some corroboration of the contradictory testimony. Such corroboration, however, may be furnished by evidence aliunde tending to show perjury independently of the declarations of testimony of the accused, (citations omitted)

 

It appears that the prosecution failed to supply the quantum of proof required to prove all the elements of perjury. Such failure becomes even more significant when viewed in light of accused's presumption of innocence. The ANCWL president is entitled to an immediate acquitall so that she can focus all her energies on electing a new and competent women-led ANC leadership in 2022.  President Ramaphosa must learn very soon that his billions cannot buy the loyalty of every patriotic black South African citizen.