Inside Heath’s world

2011-12-03 13:37

‘While Mandela was still the president, we had free rein. We just investigated anything that was referred to us,” says Heath, now 66 years old and a very different man from the judge who started the SIU in 1996. “The atmosphere changed when Mbeki came into power.”

Initially because of the sensitive cases we ­investigated...when it came too close to him and other people, obviously they didn’t like it.

Which cases?
The sensitive cases at that stage were as far as housing was concerned. The department of health spent a lot of money that never reached poor people. Because of his (Mbeki’s) response, some of the ­ministers also became hesitant. During the beginning phases of the arms deal, I had some interviews with Mbeki. I had some information he didn’t like and that was just the final straw.

It was not only Mbeki who didn’t want you in the arms deal investigation, Zuma also said you should be excluded...

That was Mbeki’s line. Because I would still meet with members of the NWC (the ANC’s national
working committee) and NEC (national executive committee), and they were supportive and many of them were surprised by the SIU being stopped. That was Mbeki’s brainchild – to stop our involvement.

But Zuma supported it...

Initially I had no contact with him (Zuma) in those years. So he was, I’m guessing, probably responding to the sort of approach Mbeki had followed. As deputy president he had very little option but to go that route. Later, of course, I had regular contact with him. Then, of course, he was most unhappy about the fact that the SIU was not involved in the ­investigation. And as I predicted at the time the ­National Prosecuting Authority (NPA), public ­protector and auditor-general did not come to light with any official or real discoveries during the ­investigations and their report was neutral.

Why were only Schabir Shaik and Tony Yengeni prosecuted for the arms deal?
They were sacrificed. It was easy to sacrifice them. And then, of course, Mbeki initiated Zuma’s prosecution – not only as far as the corruption charges were concerned, but also on the rape case.

Do you have proof of that?
He dictated to the NPA what decisions they had to take. I can’t disclose the evidence to you, but ­generally there was no doubt he had a strong say in those decisions; yet the NPA was supposed to be completely independent.

Was the rape case a setup?
It was a setup. There was no evidence. And that is what Judge Willem van der Merwe found eventually. Obviously there was a sexual relationship, but on the evidence that was given in court, the lady spent the night there.

What do you think of the latest arms deal commission?
At this point in time, what is left of the documents? Of the evidence? Of the witnesses? After how many years – 13 years I think. It’s still a good thing that they’ve appointed a commission of inquiry. Obviously one would like them to investigate that. At least it will bring out allegations that I think the people of South Africa should know about (In 2001, Heath resigned as a judge after Mbeki had refused to grant him early retirement).

What effect did this have on you and your belief in our democracy?

I didn’t lose my confidence and belief in a new democracy, but because of Mbeki’s refusal (to grant him early retirement), I had to resign. I retained no benefits as a judge. I walked out a pauper and had to start from scratch. By that time I would have difficulty going back to the bench. I moved to Cape Town to start a new career. I had to start from scratch.

When did you get involved in Zuma’s case?
He called us in 2005 and we then had the first meeting with him. He contacted us personally. We had several meetings with him.

What did he want from you?
At that stage there were all the rumours about the corruption case. Following that, of course, the rape case – we also had discussions about constitutional matters not involving corruption.

What exactly did he want from you?

He wanted to have discussions with us. Initially it was about various constitutional matters, of which I can’t disclose the details, and eventually we were advising him on the corruption and rape cases, although we were not part of the legal team.

What kind of advice?
Well, he discussed the facts with us, of the rape case, and we had to express views as far as the ­possibility of a conviction was concerned.

Was his lawyer involved in thesediscussions?
No, no...they were separate and mostly secret meetings.

Did you ask Zuma why he was seeking a second opinion?
I think because of our track record of conducting serious research as far as any matter we become involved in. So it wasn’t only because of my expertise as a lawyer, but also backed up by a proper analysis of the evidence.

Did you investigate the complainant in the rape trial?

No, obviously I was not entitled to do that because they’re state witnesses. But on the evidence, the ­information that was available, we considered that.

What was your advice on the rape case?

I told him at the outset it was impossible to convict him of rape. This simply because it was consensual and eventually that’s what the judge also found. That was a critical component as far as the judge was concerned.

What was the nature of your relationship with him?
It was a client-adviser relationship. After that there was the corruption case, but eventually the ANC took over and I was consulting them.

How did the relationship change?
They contacted me. So I can’t say and don’t know if he made any recommendations. But the initiative was taken by members of the NEC.

Was Lindiwe Sisulu the person who contacted you?

Were you involved in acquiring the so-called spy tapes?

When did you become aware of them?
When some material pertaining to them was handed to me a number of years ago.

By Zuma?

Well, among various other things.

Various other things?

Now you’re on dangerous ground.

You can just say if you don’t want to answer.
No, I don’t want to answer.

Were you ever told how these tapes landed up where they did?
I had sight of those tapes, the transcription of that, and obviously the official approach was that it was just a concoction, that it was fabricated. My view was it was based on fact, and that the people who communicated didn’t realise it was going to see the light of day. I read it thoroughly and analysed it.

When was this?

At the time when those tapes surfaced. I had sight of them before it became public knowledge because they were submitted to me to analyse.

Did you ask whether the tapes were legally obtained?
No, I was just given the transcription to analyse. I had no contact with the people playing roles
in it.

Were you surprised to hear what was on them?

I was surprised by the absolute intimate detail and, because I’d been involved in investigations on behalf of the Kebbles, I recognised some of the details that were discussed. So I could actually link it to what I had discovered as part of my brief from the Kebbles. That’s why I thought they were genuine.

What details were on both?

The one was that Bulelani Ngcuka (former director of public prosecutions) insisted on getting paid and then afterwards his wife, who was a former minister, said: “Well, he got paid so I’d also like to be paid.”

By who?
Well, obviously the person’s identity was not disclosed.

Were you paid by the ANC?

No. I wasn’t paid a fee, but towards the end we were given an honorarium.

Why did you provide them with free advice?

It wa

s a challenge for me to get involved in the ANC, who had views very different to the ANC leaders prior to them. It was a fascinating experience to do that, ­particularly the advice we gave them on the ­Constitution and its application.

Are you bitter about the previous ANC leadership?
Obviously I was most unhappy about the way in which I was treated and that I was left destitute, so I wasn’t happy with that. As far as the new ANC was concerned, they were a completely new and different group. So they approached me with such sincerity and I accepted that they were not part of the old school, and that they were entitled to get to the truth of matters. You would know that none of them played a role in the arms deal.

Zuma was deputy president at the time...
I wasn’t consulted by him about the arms deal.

You were a state witness in the Shaik trial; you contributed to his conviction.
My evidence was so neutral. I was merely asked whether we applied for a proclamation to investigate the arms deal.

Do you agree with the Shaik judgment?


Why not?
Because I didn’t think there was sufficient evidence submitted. I studied the record and was surprised that he (Judge Hilary Squires) arrived at the conclusion he did.

Do you still believe that after the Supreme Court of Appeal and Constitutional Court have confirmed the judgment?
Well, they were dependent on the record that was available, so I still don’t agree with it. I had many discussions about the issue of ANC members ­receiving support and financial assistance.
Those who had returned from exile had nothing. So it was a common culture that those who had money would support the others.

So what is your conclusion? That nobody should be prosecuted or that everybody should be prosecuted?
It was part of a culture, and friendship and ­camaraderie, so it was a very common thing for those who had money to support the others.

Do you believe there was a conspiracy against Zuma?
Yes. I believe the NPA was given instructions to pursue the matter on that basis.

By who?

The allegations were made at the time that Mbeki had given those instructions.

To Ngcuka?
Effectively, he had to give instructions to Bulelani. But I don’t have the evidence; those were the allegations. As with the rape case.

Do you believe it?
I believe that instructions were given, yes. And you will recall that when the case was withdrawn against Zuma, they conceded that the case was tainted.

But they didn’t say Mbeki gave instructions?

They had to be careful in making those allegations public. I think that was just the tip of the iceberg when they made those concessions as far as the tainting of the case was concerned. I think it was much more seriously tainted than they had admitted.

Why did you work for the Kebbles?
We were approached by them to conduct an investigation into the pending charges against them. Eventually the cases were withdrawn against them.

In the Selebi trial, there was reference to money received by your company from JCI and Randgold that was used to pay third parties.
Because of close scrutiny by a PI (private investigations) company, we had discussions with the Kebbles. This because they were scared that payments of witnesses (who worked for the Kebbles’ adversaries) – not bribing them – would leak to these guys. Payment was run through our trust account. So from the point of view of accounting, it was disclosed in our books. It was transparent.

So you had to hide the payments?
We had to hide, ja. Because we knew some of the witness had been employed by the PI company before.

Why were the witnesses paid?
Okay, they had travelling expenses, they lost their jobs. You could interpret it that they were bribed, but eventually their evidence was accepted in civil cases as well.

Will you resign from your private business interests? (Heath has a consultancy firm and interests in gold and diamond processing.)
No, that was part of the agreement because I didn’t want to find myself in the same position I found
myself in 10 years ago. So I set it as a condition. It wouldn’t interfere in the work of SIU but I would have to maintain that contract.

Someone said you are too old for the job.

I invite them to spend a day with me and see what my energy is like.

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