Mapisa-Nqakula is least of ANC’s legal problems

William Saunderson-Meyer says Speaker may be out, but cadre case is coming back to bite it


The African National Congress has an ingrained contempt for the judiciary and the rule of law that is generally hidden but occasionally bursts unbidden into display. It’s an arrogance that stretches from the lowest ranks to the highest offices, including that of President Cyril Ramaphosa and his ministers.

The judicial delinquent most often cited is, of course, Jacob Zuma. From what constitutes rape, through abuse of office to comprehending the basics of the Constitution — including incitement to treason — the former president doesn’t have a clue.___STEADY_PAYWALL___

It seems these subjects were not on the curriculum of the Robben Island “university” where he cut his intellectual teeth, such as they are. Unfortunately for South Africa, he is not the only one in the ANC’s elite who sees the law as something that applies to ordinary people but not to themselves.

Over the past few weeks, Nosiviwe Mapisa-Nqakula, one of the less engaging specimens in our political zoo, has put on a show-stopping display of this arrogance and disregard. As part of a corruption investigation following allegations that Mapisa-Nqakula — who until Wednesday was the National Assembly Speaker — had solicited and received bribes for awarding contracts during her time as Minister of Defence, her home was last month raided by the Hawks.

Facing arrest and filled with self-importance, Mapisa-Nqakula made an urgent application to the Gauteng High Court (Pretoria), accusing the Investigating Directorate of “apartheid-style terror tactics” and “humiliating” her. She was, after all, Senior Counsel Roger Willis told the court, “a person who has a reputation, unlike most across the population.”

There should be, her team argued, none of the indignity of a criminal arrest. Instead, she should be summonsed to court at a date that suited her. The prosecutors should also disclose in full to her before her court appearance whatever “paper thin” evidence they might have of her alleged crimes, as well as provide her with all the documentation that informed their decision to prosecute.

“I am a senior person and the [law enforcement agencies] rushing me into a police cell … is a threat to my health and life,” she said in her submission. These are cut-and-paste arguments drawn straight from the Jacob Zuma and Schabir Shaik playbooks; they’d worked before, at least when it came to angling for medical parole. 

It was at this stage that the State, which already had been leaning over backwards to appease this important ANC figure, promising not to oppose bail, baulked. The National Prosecuting Authority stated the obvious — that this is not the way that law works. At least, not for the common herd that Willis is so scathing of.

“It will set a dangerous precedent to allow a suspect to dictate the terms for the process of securing their attendance at court,” the NPA wrote to her lawyers. “We do not want to seek to embarrass your client but are merely executing our legal mandate of securing her attendance at court.”

The surprising degree to which the State was willing to pander to political pressure was clear from the affidavit of Bheki Manyathi, the Deputy Director of the Investigating Directorate. He promised Mapisa-Nqakula’s team that he “could bring her in his car or be transported by a family member — the husband — in their car, and they would drive her to court without her being put in a police vehicle … This courtesy is less invasive and less humiliating. It would protect any dignity that she has. It would not infringe on her liberty or freedom.”

From the outset, this was an obviously doomed application by Mapisa-Nqakula and should not only have been dismissed, as Judge Sulet Potterill did on Tuesday, but with punitive costs awarded against her for wasting everybody’s time. Instead, Potterill struck the case from the roll on the basis that it was not urgent, accompanied by some stern words regarding the principle that everyone is equal before the law. 

Mapisa-Nqakula being allowed to hand herself over was a “courtesy not extended to ordinary citizens,” Potterill pointed out. “I am mindful of the fact that if the Court grants [an order interdicting the State from arresting Mapisa-Nqakula], the floodgates will be opened.”

After Potterill’s ruling, the dominos fell fast. Within hours, Mapisa-Nqakula had resigned as Speaker and an MP. On Thursday morning, she presented herself at Lyttelton police station to be charged. 

In her affidavit asking for bail, Mapisa-Nqakula — a former Minister of Correctional Services — cited the terrible, unsafe and crime-ridden conditions that existed in jail, where wardens were overwhelmed “trying to stop inmates from killing each other”. It was clear, she said, that a person with hypertension, like herself, would experience the very same problems in accessing proper medical care that did Zuma. She was released on R50,000 bail.

Mapisa-Nqakula had made the politician’s cardinal sin: she misread the political winds. Initially, there was support for her within the ANC, with Chief Whip Pemmy Majodina stating blithely that “from time to time there are raids on people’s homes” and there was thus no reason for the Speaker to step aside from her post over such an everyday event.

But then the prevailing wind shifted and the ANC made an expedient, morality-free, decision. It decided that the spectacle of one of the party’s elite giving the justice system and the masses the finger, less than two months before a difficult general election, was just not on.

Ramaphosa, who reportedly never had a good relationship with Mapisa-Nqakula but took four years to dump her from his Cabinet — giving her a cushy job in Parliament instead — signalled the shift when he dodged defending her in Parliament and separately told the media that the law should take its course. In turn, the ANC MPs took their cue and reversed their opposition to a confidence vote.  

As unnamed ANC sources told New24, “She cannot put us in that position. We cannot afford to defend her in an election year. She must just resign and make it easier for the ANC.” 

But Mapisa-Nqakula is just a blip in the ANC’s problems. Far more threatening are the implications of another politically explosive judgment handed down this week, which threatens to reveal whether Ramaphosa and ANC Secretary-General Fikile Mbalula lied to the courts, as well as to a judicial inquiry headed by the Chief Justice.

In the Gauteng High Court (Johannesburg), Judge Brad Wanless has ruled that the ANC and Mbalula were in contempt of court for unlawfully redacting the party’s cadre deployment minutes that the Constitutional Court had ordered them to provide the Democratic Alliance. These detail the extent to which a shadowy ANC committee influences every high-level public service appointment, as well as state-owned enterprises, parastatals, and supposedly independent entities like the Constitution-protecting Chapter Nine institutions and the judiciary itself. 

Ramaphosa was the chair of that deployment committee between 2012 and 2017. And these are the minutes that Ramaphosa told the State Capture Inquiry under then acting Chief Justice Raymond Zondo, were probably never taken and, in any case, if they ever had been taken, now could not be found to deliver to the inquiry.

When the Constitutional Court subsequently ordered that all the ANC deployment minutes be made open to public scrutiny, the ANC continued to duck and dive. The minutes handed over to the DA were heavily redacted and none related to the period of Ramaphosa’s chairmanship. The ANC’s risible explanation for this omission was that there was only one copy of the Ramaphosa era minutes and it had been irretrievably lost when the hard drive in the laptop of Lungi Mtshali, a manager in Mbalula’s office, crashed.

The DA headed back to court and Wanless has now not only ordered the ANC to remove all redactions, but he has extended the net cast. Any information and communications relating to the deployment committee and between its members, over the eight years to January 2021 — including emails and their attachments, Whatsapps, and any other social media communications — must be handed over. Unredacted.

Wanless also ordered the ANC to allow a DA-designated expert to examine Masilela’s laptop and hard drive, as well as the personal and work laptops of another ANC official, Thepelo Masilela. An ANC information blackout based on the fairy tale of a single hard drive failure has just become impossible to sustain.

The implications for Ramaphosa are enormous. With the compliance of the Reserve Bank, the Revenue Service, and an eager-to-please Public Prosecutor and Parliament, the president was able to duck the fallout from the Phala Phala scandal. This is different. This is going to be far more challenging. 

The ANC has only 15 days to comply with the court order. Cue potentially explosive revelations by the DA of ANC skulduggery, coming in the month before the election. 

Cue also some desperate legal manoeuvres from Zuma’s Stalingrad manual. 

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