Dear Advocate Heath...

2011-12-10 18:54

On many occasions I have remained silent and not responded when outrageous and scandalous allegations were levelled against me as these allegations related to my term of office as national director of public prosecutions (NDPP) of the republic, and therefore I deemed it prudent to let such issues be dealt with by the National Prosecuting Authority (NPA) as it deemed fit.

However, because the source of the latest allegations is someone who was once a member of our respected judiciary, and is considered by a section of our society as a crusading “corruption buster”, I consider it necessary to respond.

By not responding in such circumstances, there exists a danger that the public may give credence to your allegations, clothed as they are with the imprimatur of the office of head of the SIU (Special Investigating Unit).

A unit whose investigating mandate is authorised by the president of the republic in corruption matters so serious that the public interest requires an intervention outside of the normal structures of our civil jurisdiction and criminal investigative system.

Also, as a former judge of the high court, the public has every reason to believe that your statements will not be recklessly made, unethical and unsubstantiated.

Such is the confidence of the great majority of the reasonable people of our country in the judiciary and the country’s criminal justice system that they would uncritically assume the latter values in you.

It is also because your interview published in the City Press of last Sunday is so scandalous and lacking any ethical content that I have been reluctantly compelled to respond to you by means of an open letter.

The allegations you make against me personally, and the office of the NDPP during my tenure, are very serious.

They include the scurrilous charge that I allowed myself and the NPA to be dictated upon by the former president in the exercise of my authority, to institute corruption and rape charges against President (Jacob) Zuma.

Evidence of such conduct as you allege on my part would result in a criminal conviction. One therefore wonders why, if you have such evidence you have not seen it fit to formally lay charges against me in all these years.

The reason in my considered view, is that these allegations are as false as they are disingenuous, as I demonstrate below.

In the interview you suggest that as a result of your “exclusion” from the investigation of the defence strategic arms procurement (the arms deal), the joint investigation conducted at the request of a committee of Parliament by the NPA, the auditor-general and the public protector lacked integrity.

Save and except that you did not personally participate in the investigation, it is unclear why these constitutional institutions are visited with this insult.

If you had any evidence of wrongdoing that came “too close to certain people” relating to the matter why did you not present such evidence to the joint investigation? Could it be that you withheld evidence of wrongdoing simply because you were sulking at what you misguidedly perceived as “exclusion”?

It is a matter of record that your term of office as head of the SIU terminated as a result of the decision of the Constitutional Court, which correctly found that it was undesirable that a full-time judge should be engaged in investigative functions of matters of the nature the SIU is charged with in terms of its founding legislation.

An unbiased reading of the decision will show that the decision is intended to protect the integrity of judicial office whose main constitutional mandate is to dispense justice on a day-to-day basis and avoid the danger of our judges being seen as an extension of the executive.

There is no question that the investigative functions of the SIU are typically those of policemen and related functionaries. In this regard the SIU interrogates, issues search warrants, seizes assets of persons involved in criminal activity and institutes civil proceedings for cancellations of contracts and recovery of ill-gotten gains of criminals.

While these are effective instruments in the important fight against corruption, it should be clear that such functions do not sit well with a sitting judge’s mandate.

It is, of course, obvious from the interview that you have scant regard for our highest court, this notwithstanding the highest regard in which it is held by the great majority of jurists of high repute in this country and abroad.

Regardless of the expressed contempt for the Constitutional Court and all decisions of our judiciary you do not agree with, I believe it necessary for the benefit of the public to dispel the notion of a conspiracy to exclude you personally.

It is understandable that you were frustrated that you could not continue in office as a result. But that is the nature of court decisions, and as a former judge and advocate I would have thought it would be an easy matter to understand this.

But in keeping with the tenor of your interview and your general approach to these matters, you choose to mislead the reading public by suggesting that your “exclusion” and departure as SIU head was as a result of some conspiracy directed at you personally.

The allegation that I was “instigated” to prosecute president Zuma is demonstrably false and is a gratuitous insult to my person and the office of the NPA. It is rejected with contempt. The undisputed facts around this matter are to the contrary; I declined to institute any charges of corruption against president Zuma.

I stand by that decision. That I was in any way involved in the decision to institute rape charges against president Zuma is equally astounding as I was at the time long out of office.

One, however, understands that a man so bitter at being “excluded” from office and, being rendered a pauper as a result of such “exclusion” would be blind to the facts and be inclined to lash out at all those who he misguidedly perceives to have conspired to his prejudice.

Therefore, now that you have been restored to the position you have consistently believed is your God-given right to hold, you now triumphantly return to take revenge against me, my wife, and former president (Thabo) Mbeki, by resorting to the perpetuation of slander, innuendo and defamation.

That there is no basis for the allegations you make matters not to you it would seem, as your mantra appears to be that such conduct is justified by your objective of vilification and destruction of those you see as your enemies, be they real or imagined.

Latter modus operandi is again in keeping with your style. In the interview in which you announce your triumphant return as SIU head, you unashamedly state that you traipsed to former president Mbeki’s office to “whisper” in his ear that you had information of wrongdoing relating to the “arms deal”.

From this “confession” it becomes obvious you had been involved in some preliminary investigative work on the “arms deal” from which you would have gathered the need for a proclamation to be issued by the president authorising an investigation.

The question that must occupy the public is on whose authority such a preliminary investigation had been conducted? I ask this question because it is nowhere authorised in the Special Investigations and Special Tribunals Act, for the head of an existing SIU to unilaterally decide to initiate an investigation extraneous to the mandates of an existing investigation.

Parliament has in its wisdom seen it fit to grant the power to institute an investigation and to decide who heads the SIU to be charged with such investigation to the president and to him alone. That is still the position.

It is therefore something to remember in the course of your triumphant ride into town, that it is not a good thing to arrogate to yourself the decision to conduct any investigation that yo

u deem to be necessary in the public interest.

That matter is in the margin of appreciation of the president. Forgetting this aspect may lead to you falling hard from your high horse once again, and lead to another round of finger pointing and slander from you.

Our public discourse on the serious matter of corruption surely deserves to be spared of such a spectacle, you will hopefully agree.

As a man of professed integrity, known for your dedication to the eradication of the scourge of corruption that is threatening to destroy the very fabric of our democracy, I invite you to produce the evidence of the very serious allegation that I may have been bribed for abusing my office as NDPP.

The same invitation is extended regarding my wife, the former deputy president of the republic. You will, I trust not let our democracy down in this regard. There is now no more reason for you to sulk and withhold such evidence.

I also hope you will be willing to take the witness stand, testify under oath regarding any such evidence as you may have and subject yourself to an examination of the truthfulness of your allegations.

Finally, there is the small matter of your own confession of laundering through the trust account of Heath Consulting money intended in one way or the other, to clandestinely procure the testimony of former JCI executives in favour of your client, and criminal accused, the late Brett Kebble.

Are you happy that such conduct on your part enhances the integrity of your office? I await a clear response and reserve all my rights regarding the allegations you made against me.

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