Ministers are gatvol with Jacob Zuma's lawyers
22 Aug 2014 00:00 Political Staff
http://mg.co.za/article/2014-08-21-minis...as-lawyers
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Despite a series of legal blunders and embarrassments, plus a gatvol security cluster of ministers, President Jacob Zuma is sticking with his team of legal advisers, even though they don’t advise the president “properly”. Just last week, a meeting of irate security cluster ministers raised concerns about the quality of legal advice given to Zuma, the Mail & Guardian has learned.
Zuma has relied heavily on the security cluster – which includes the ministers of justice, intelligence, defence and police – to help him to negotiate a number of storms such as the controversy around the upgrades of his Nkandla home and the standoff with the national director of public prosecutions, Mxolisi Nxasana.
This is not the first time the quality of Zuma’s legal advice has been questioned, but the president remains unmoved.
Zuma has appointed two legal advisers to his presidency office, but Michael Hulley, once his personal lawyer and now legal adviser to him as president, is in effect his chief adviser. Hulley became Zuma’s lawyer when, as deputy president, the latter faced corruption charges in 2005. He continued to assist Zuma with legal challenges until he was appointed part-time legal adviser in the presidency in 2011. As this is only a part-time gig, Hulley continues to run his legal practice on the side, while advising Zuma both in his personal capacity and as state president. It is this conflated relationship that has irked some Cabinet ministers and ANC leaders.
“The concern is that Michael Hulley in particular is being kept too close to the president because he has become more than just a lawyer,” a government official said. “There have been many attempts to say ‘let’s change these people, they are embarrassing the state.’ The challenge is that nothing is happening,” said a government official who has insight into the inner workings of government.
“Hulley is in control. He is now in Zuma’s government, so the relationship is more complicated. They are together in business and it’s not easy to remove him from office. The complication is that if Zuma removes Hulley, for instance, what about their business relationship? He needs to consider that.”
Quality of advice
The official said that the quality of Zuma’s legal advice has been an issue of discussion for a long time.
“In fact his legal advisers have been almost a permanent feature of the security cluster’s discussions,” the official said. “There have been many instances where it’s been felt that these people are not advising the president properly.”
Zuma’s lawyers last week conceded in the Supreme Court of Appeal that they could not make an argument for refusing to hand over the “spy tapes” to the Democratic Alliance. The lawyers have been fighting the opposition party’s bid to get their hands on the recordings, which were used as a reason to withdraw corruption charges against Zuma in 2009.
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“It is depressing to go all the way to Bloemfontein [the seat of the Supreme Court of Appeal], then admit that you do not have a case,” the official said. “After spending so many millions on the case, why is it that the lawyers could not see that it is not worth fighting further?”
M&G sources claim some ministers and directors general in the security cluster agreed that Zuma’s legal team needs a wake-up call, and that even the previous security cluster concurred that Zuma’s legal blunders were the result of the advice he received.
Embarrassing moments
Embarrassing moments for Zuma include the bungled attempt to extend Justice Sandile Ngcobo’s term as chief justice, and the appointment of Willem Heath as head of the Special Investigating Unit in 2011 – which also caused unhappiness because he had been part of the “brains trust” team that, together with Hulley, helped to get corruption charges against Zuma dropped.
Heath resigned just two weeks into his appointment, after claiming that former president Thabo Mbeki had engineered rape and corruption charges against Zuma.
In 2012 the Constitutional Court declared Menzi Simelane’s appointment as national director of public prosecutions “inconsistent with the Constitution and invalid”.
When asked to show on what basis the president had decided to appoint Simelane, the president – on advice – said he had just perused his CV.
But Hulley has nonetheless succeeded in helping Zuma out of legal pickles. When Zuma failed to declare his and his family’s business interests for about a year after he was appointed state president – contrary to the 60-day legal stipulation – it was Hulley who managed the crisis.
“The attendant delay in completing this task responsibly has created an opportunity for some to unfairly speculate without substance,” he said after Zuma eventually made the long-awaited declaration in 2010.
Ball in Zuma’s court
Zuma’s other legal adviser in the presidency is Bonisiwe Makhene, who was seconded from the department of justice, although government sources said she was recommended by one of Zuma’s “kitchen cabinet” members.
“The ball is in Zuma’s court to decide what to do with his legal advisers,” the government official said. “You can say there is no appreciation for the amount of problems we are experiencing and what is causing them.”
A response to a DA question in Parliament last November revealed that Zuma’s attorneys were paid more than R8.8-million in the four years since 2009.
Former justice minister Jeff Radebe’s written reply said law firm Hulley & Associates received R7 945 971 in the 2009-2010 financial year, R570 068 in 2010-2011 and R327 890 in 2012-2013. These amounts were for cases relating to the multibillion-rand arms deal as well as the “spy tapes”. As a part-time special legal adviser, Hulley is paid at a rate of just under R700 an hour.
Hulley has been linked to two companies registered in the British Virgin Islands, Caprikat and Foxwhelp, which were fronted by the president’s nephew Khulubuse Zuma in the controversial oil exploration rights deal in the Democratic Republic of Congo. He was also listed as a director of the now liquidated mining company Aurora Empowerment Systems, together with Khulubuse, among others.
Confidential discussions
Justice minister Michael Masutha told the M&G this week that security cluster meeting discussions were confidential. “I don’t think the matter you are raising is at the stage of public communication yet. We are not yet at the stage where we can table that matter for public consumption.”
Asked whether the security cluster meeting had discussed the quality of legal advice given to Zuma, Masutha said: “If there is a law exercised by the president, we generally would be the ones assisting the president with any constitutional and legal matter. We are the office that processes such things.” He said he was not in a position to share any more information on the matter.
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Masutha said the Nxasana case was “complex .... I would generally be reluctant to discuss any aspects of that matter. At this stage this is still an internal matter and it’s complex.”
Some ministers who form part of the security cluster claimed not to know anything about the discussion on Zuma’s legal advice.
Last week Zuma issued a statement on his submission to the speaker of the National Assembly, Baleka Mbete, on the Nkandla upgrades, but when the M&G called the legal advisers to explain the rationale behind the timing of the submission, Hulley and Makhene referred the newspaper to each other; neither could answer the questions.
Blame game
ANC national executive committee member Billy Masetlha has defended Zuma’s choice of legal advisers, saying they stood by him during the corruption and rape trials when no one else was there for him.
He said ministers in the security cluster should take the blame for the embarrassment caused as a result of appointing people who are not fit for office.
Masetlha said the ANC’s peace and stability subcommittee had long raised concerns regarding the appointment of people to key government positions without vetting the candidates first.
“Some of these questions we put them on the table long time ago. The same comrades in the security cluster were present in the [ANC] meetings,” Masetlha said. “We even had to get the president to intervene … to a point where we said to the director general in the presidency he needed to make sure that the president always checks [if vetting was done for key appointments]. We were almost at blows when we dealt with the Waterkloof [Gupta aircraft landing] scandal. Ministers must take the major blame. They are not immune.”
Masetlha said security cluster ministers “may be opportunistic now”, but that the issue of Zuma’s legal advisers was “not an isolated case. If they [had] asked us before, we could have given guidance on [Nxasana]‘s appointment.”
‘No regulation’
On Hulley, Masetlha said: “Advisers must be vetted. Hulley might pass the test, but politically he might not. As an adviser there is no such regulation.”
In 2011, when presidential spokesperson Mac Maharaj was asked whether Hulley was vetted before his appointment, he told the M&G Zuma was within his rights to appoint Hulley.
“All of us go to the ones we know best. Zuma has respect for his [Hulley’s] legal abilities. You’ve had controversy about all sorts of appointments. This is a free country.”
Hulley did not return M&G calls and text messages this week. Makhene also refused to respond to M&G questions.
Maharaj said the sources of the M&G were spreading “rumours and gossip” that he described as “disappointing and baseless”.
“Advice to the president within government comes from various sources, especially line function ministers, in addition to his personal support staff such as advisers,” Maharaj said. “If people have constructive suggestions to make on any issue in order to improve the performance of government they must use correct forums instead of spreading malicious rumours.”
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Tenders and bold claims: President’s lawyer no stranger to controversy
President Jacob Zuma’s lawyer Michael Hulley controversially believes that his client can’t be prosecuted during his term in office.
“I have been advised that the incumbent state president, like the president of the United States, cannot be charged with criminal conduct [or continue to be prosecuted] during his incumbency,” Hulley responded to the Democratic Alliance in an affidavit in 2009. The DA had applied to the high court in Pretoria to review the National Prosecuting Authority’s decision to withdraw charges against Zuma.
“Charges can only be brought if he is successfully impeached in terms of the Constitution or after his term of office ends,” Hulley said.
He is not new to controversy. The M&G reported in 2012 how the Durban lawyer played a major behind-the-scenes role in the awarding of a R10-billion social grants tender. He was apparently appointed as a “strategic adviser” to the South African Social Security Agency at R21?000 a day for providing “commercial, financial and legal advice”.
The tender was awarded to Cash Paymaster Services. The massive tender was challenged in court by losing bidder Allpay Consolidated Investment Holdings, which decried allegations of corruption.
Hulley has been linked to two British Virgin Islands registered companies, Caprikat and Foxwhelp, which were fronted by the president’s nephew Khulubuse Zuma in the controversial oil exploration rights deal in the Democratic Republic of Congo.
Hulley was also listed as one of the directors of the now liquidated mining company Aurora Empowerment Systems, though he said he was just an adviser. Liquidators of Pamodzi Gold mines appointed Aurora to manage the mines in 2009, when they were still fully operational, but the mines were soon run into the ground after that botched takeover. Aurora workers are still owed salaries even after the Labour Court issued an award against the company’s directors to pay. Trade unions in the mining sector raised suspicions that the political connections protected Hulley and fellow Aurora directors from prosecution.
Zuma's three splitting headaches
22 Aug 2014 00:00 Phillip De Wet
http://mg.co.za/article/2014-08-21-zumas...-headaches
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Three very different but intertwined issues are facing President Jacob Zuma at the moment. This is how they are connected:
The personal: Nkandla
A “reasonable percentage”. That is what public protector Thuli Madonsela declared, in March, that Zuma should repay of the costs of upgrades at Nkandla, on the basis that he and his family unduly benefited from state spending at the rural homestead.
What would be reasonable Madonsela did not find it her job to determine, but in the context of more than R200-million spent, anything on the larger side of reasonable could, in theory, bankrupt a man with an official salary of R2.6-million a year.
The Special Investigating Unit, on the other hand, has held Zuma’s personal architect Minenhle Makhanya wholly responsible for what it calculated at R155-million in wasted state money.
Now, according to Zuma’s considered opinion, it is up to the minister of police to determine how much he must pay back. Whether that decision stands could well be up to Parliament, though with a court review of the decision more than likely.
That, in turn, could end up in the Constitutional Court.
Although the amount of money involved is small, any payment exacted from Zuma would be interpreted as an admission of guilt, by opposition parties if nobody else, and would have a disproportionate political impact.
Zuma’s approach to dealing with Nkandla, which has at times included apparent disinterest and perfunctory attention, has been held as indicative of his approach to corruption in general.
The institutional: the Hawks
Though it came under his watch as ANC president, Zuma was not officially responsible for the disbanding of the Scorpions, the high-profile priority crime unit that was established under the National Prosecuting Authority (NPA). The process was started under Thabo Mbeki, and continued during the caretaker presidency of Kgalema Motlanthe.
But the switch to the Hawks, a unit located within the South African Police Service, is closely linked to Zuma’s rise to power; the ANC decision that the Scorpions had to go was taken at the same conference that ousted Mbeki in favour of him. And during his two terms in office, Zuma has been responsible for – to date – unsuccessful attempts to argue that the Hawks are capable of effectively combatting corruption.
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Businessperson Hugh Glenister first attempted to interdict the disbanding of the Scorpions, and was joined by a long list of opposition parties that claimed attempts to do so were rooted in a desire to protect high-ranking ANC members from investigation.
That attempt failed, but Glenister’s efforts ultimately saw the Constitutional Court rule that a corruption-busting unit was an absolute necessity, and that the structure of the Hawks did not permit the unit to operate with sufficient independence to do the job.
This week counsel for Zuma again argued that the Hawks, under an amended law, are fit for the purpose of combatting corruption. Others still disagree, and the matter has become a litmus test for the Zuma administration’s commitment to fighting corruption in a government loaded with ANC deployees.
The critical: corruption charges
No issue has dogged Zuma as much as the (currently nonexistent) charges of corruption against him. In 2003 Zuma was informed that he was under investigation for alleged corruption relating to the multibillion-rand arms deal. By 2005 it seemed certain he would be charged, after his financial advisor was convicted of having had a corrupt relationship with him.
Judge Hilary Squires would later point out that he had not found a “generally corrupt” relationship between the two, a phrase that has been attributed to him even by other courts, but in a judgment that mentioned Zuma 471 times, he did find that Shaik companies made payments to Zuma in contravention of the corruption Act.
In 2003, NPA head Bulelani Ngcuka said there was a “prima facie case” against Zuma, but declined to prosecute. In 2005, new NPA head Vusi Pikoli said Zuma would be prosecuted; that case was struck off the roll in 2006 amid disputes about evidence.
At the end of 2007, papers were filed to reinstate the charges, but in 2009 acting NPA head Moketedi Mpshe dropped the prosecution again, citing the spy tapes.
Crises of leadership at the NPA and infighting within police crime intelligence (and the wider intelligence apparatus) have been linked to this sequence of events, with allegations that Zuma was prioritising his personal requirements of an NPA head, to wit executive-mindedness, above the needs of the organisation.
Shots fired: Jacob Zuma's tough times
22 Aug 2014 00:00 Phillip De Wet
http://mg.co.za/article/2014-08-21-shots...ough-times
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NEWS ANALYSIS
By fighting every procedural detail of every case in every forum, President Jacob Zuma has fended off challenges to his liberty, finances and political prospects for more than a decade. Corruption charges have been in the offing since 2003, and the fact that he was bribed has been a matter of court record since 2005. Hard questions have been asked about his administration’s hobbling of corruption-fighting since 2008, and about the funding of upgrades to his Nkandla residence since 2009.
In all that time Zuma has appeared in the dock only once, when he successfully defended himself against a rape charge, and has capitulated only once, in abandoning massive (and, in retrospect it seems, purely tactical) defamation claims against various newspapers. In the same period he was voted in as president twice.
Between August 11, when investigators targeted Zuma’s architect, and this Thursday, when Zuma answered parliamentary questions, legal matters only tangentially related to one another seemed to conspire to cause Zuma a combined headache. In retrospect, those 11 days may come to be seen as the reason why Zuma changed strategy – or why his strategy failed him in the end.
If the legal strategy to date (which his lawyers have loudly denied as being one of delay) was to keep him out of jail, out of the witness box, solvent, and in office, then it succeeded.
But over the past 11 days a confluence of circumstances resurrected three of the most vexatious ghosts that haunt Zuma. And developments over those 11 days suggest that the long-successful strategy cannot hold much longer, not on all fronts simultaneously.
Personal problems
The timing could have been worse; had these events coincided with Zuma’s campaign to be re-elected ANC president or with the 2014 elections, their impact could have been reflected in vote tallies. Yet the timing could also have been better from Zuma’s point of view.
As things stand, the conjoining of events has painted a deeply unflattering picture of a man whose personal problems are reflected in the government he runs, and who has let his personal failings permeate the structures he is responsible for. Proximity has turned victory into defeat, and amplified criticism.
On August 18 the Special Investigating Unit (SIU) started the process of trying to recover R155-million in money it said was wasted on Nkandla from Zuma’s personal architect, Minenhle Makhanya.
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In terms of public perception, that was unfortunate for Zuma, but only a little; it brought the Nkandla scandal closer to him than it has ever been, with its official allegation of wasted millions and confirmation that Zuma’s facilitation played at least a part in putting Makhanya in charge of government money.
But that perception problem was outweighed by the fact that Zuma himself had authorised the SIU investigation in the first place.
Scapegoat
From a financial standpoint, however, the SIU claim was a pure positive for Zuma. If the architect is held wholly and solely responsible for the wasted money, then the president surely cannot be, at least not while action against the architect drags on for what could well be years.
Should the recovery from Makhanya fail, Zuma has a ready-made legal argument for why he should not get the bill, one that can buy further delay.
That same SIU filing apparently triggered Zuma’s report to the speaker of Parliament, his first formal consideration of the various reports on Nkandla, including the most damning of all, that of the public protector. In his report to the speaker, Zuma said he had asked the minister of police – who serves entirely at the pleasure of the president – to determine what portion of the Nkandla costs should be attributed to the Zuma family.
In theory, barring successful legal challenge or intervention by Parliament, that can bolster the Nkandla financial victory. The minister of police would surely be remiss, at least in his duty to his boss, should he not find that the architect and the president cannot be given the same bill. In terms of public perception, however, that tasking of the police minister, in the context of a perfunctory response to detailed findings, did not go quite so well.
“President Zuma’s response to Parliament regarding the R200-million upgrade is yet another demonstration of his disturbingly low commitment to fighting corruption in South Africa,” said Corruption Watch – a body created by the ANC’s ally Cosatu – on Tuesday. “The government’s efforts to fight corruption are likely to be futile and ineffective for as long as it continues to disregard the findings of a crucial anti-corruption body such as the public protector and to immunise powerful citizens from the provisions of the Constitution and the law.”
Government obligations
Corruption Watch was referring to Zuma’s report to the speaker in broader terms, but it made the comment even as advocate Kemp J Kemp was standing before the Constitutional Court on Tuesday, arguing on behalf of Zuma that – contrary to the claims that had convened the court – the government was fulfilling its obligations to fight corruption.
The Hawks, Kemp told the court, had been established to fight corruption and were adequately protected from political interference in doing so. But the Constitutional Court justices did not seem to buy it.
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“Why is there not one straightforward line to say ‘the task is to tackle corruption?’?” demanded deputy chief justice Dikgang Moseneke of Kemp, before later declaring, in reference to a specific section of legislation, that “we don’t have a dedicated corruption-fighting unit”.
The hearing was part of a war that has been raging since shortly after Zuma was first elected ANC president in 2007, with a nearly simultaneous decision from the party that the Hawks’ predecessor, the Scorpions, should be disbanded.
The party followed through on that decision with Zuma at its head, and Zuma’s first administration oversaw the creation of the new unit. It then successfully fought off challenges to the disbanding of the Scorpions, but failed to defeat businessman Hugh Glenister’s subsequent argument that the Hawks was insufficiently independent.
Corruption-busting model
The Constitutional Court ordered Parliament to try, again, to come up with a decent corruption-busting model, and under close supervision by the executive, an amended law was passed.
But on Tuesday, even as Zuma was being accused of failing South Africa on corruption, the Constitutional Court was told that there were still several ways in which the Hawks could be made to back off investigations that came too close to Cabinet for comfort. And, unlike the battle for the release of the spy tapes and perhaps the reinstatement of corruption charges against Zuma, the arguments were made not by an opposition political party, but by a foundation created to honour anti-apartheid champion Helen Suzman.
Though judgment in the matter was reserved, the Constitutional Court justices not only entertained arguments, but also spun hypotheses of their own. Could the minister of police declare politicians above a certain grade immune from investigation by the Hawks? Apparently so. Would it be possible for Cabinet to paralyse the Hawks by beheading it, or by threatening to do so, if an investigation became uncomfortable? So it seems.
Kemp, on the other hand, told the court the Hawks was at least as independent as the Scorpions in almost all respects, that national security is the domain of Parliament and the executive, that bodies that include operations “clandestine and covert” need special precautions, and that there is only so much a law can do to prevent a minister (say, of police) from acting unlawfully.
Kemp and his client, though, suffered a certain credibility gap. Just four days before, in a different court, Kemp had admitted he was trying to argue for Zuma without a case. Seconds into yet another battle on whether the infamous spy tapes should be released to the Democratic Alliance, the Supreme Court of Appeal challenged Kemp: Do you have a case? Before the session was over, Kemp conceded that there was no factual basis he could cite for Zuma’s appeal against the release of the tapes.
Spy tapes
Those tapes were central – or were presented as such – in the final decision not to press on with corruption charges against Zuma. His legal team argued they showed a conspiracy against Zuma, and prosecutors accepted that argument. Yet Zuma has fought their release tooth and nail, as he has various other steps in attempts to charge him with corruption. Kemp has consistently denied that those battles amounted to intentional delay. But what other purpose could be served by an appeal with no basis? Is this not proof of a delaying strategy?
The final finding on that can only come from the Supreme Court of Appeal, which may never have to make such a ruling if an agreement struck in court holds. Still, as Parliament finally started moves this week to consider Nkandla formally, it was in the context of the strong suggestion that the president is not above delay, in anticipation that the long-guarded spy tapes will soon be public, with the spectre of the reinstatement of corruption charges against him, and allegations that he has been responsible for untold harm in the fight against corruption.
It may not be the context Zuma would have chosen, but it is the one his legal strategy has created.
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