Accountability Now has laid charges of corruption (a contravention of section 9 of PRECCA) and defeating the ends of justice against President Zuma and his Minister of Justice Michael Masutha. The SAPS are investigating the duly registered complaint laid on 20 July and have allocated a CAS number Ocean View 87/7/2015.
Please see email below written by Adv. Paul Hoffman to Mr Mantashe.
Operations Officer, Accountability Now
July 21 2015
Text of email from Paul Hoffman to ANC Secretary General, Gwede Mantashe, July 20 2015
---------- Forwarded message ----------
From: Paul Hoffman
Date: Mon, Jul 20, 2015 at 1:22 PM
Subject: Corruption or defeating the ends of justice complaint against the President and the Minister of Justice.
Dear Mr Mantashe,
We refer to our letter of 23 June 2015 addressed to you, a copy of which is attachment “B” to the affidavit that is attached to this email.
We do not appear to have received any formal acknowledgment or reply, nor has any public explanation of an accountable kind been given for paying a “golden handshake” of R17,3 million to the former NDPP, Mxolisi Nxasana. We have however noted in the press that our said letter was apparently not taken seriously by you. In a Mail and Guardian online report of 24 June 2015 you are reported as saying of and concerning us “they can do what they want to do.”
The affidavit attached supports charges of contravening section 9 of PRECCA or alternatively defeating the ends of justice against the President and the Minister of Justice. We have caused an investigation docket to be opened and have suggested to the SAPS officer commanding the Ocean View police station that the matter ought to be handled by the Hawks due to its nature and the amount of money involved which is over R17,3 million.
We are forwarding to you herewith the substantive content of the docket, excluding forms and formal documents, as a courtesy and so as to keep you abreast of developments in the matter. Kindly acknowledge safe receipt of this email communication.
In order to assist you in better understanding the context of the complaint a copy of an opinion piece carried by the Business Day newspaper on 26 June 2015 is also attached. It conveniently contains the text of the section of PRECCA upon which we rely in making our criminal complaint.
Text of the affidavit submitted by Paul Hoffman to the Ocean View Police Station, July 20 2015
I, the undersigned,
ROBERT PAUL HOFFMAN
do hereby make oath and say:
1. I am a senior advocate of the High Court of South Africa and a director of the Institute for Accountability in Southern Africa which campaigns as
Accountability Now from its offices in House Vincent, Brodie Road, Wynberg, Cape Town. The facts deposed to herein are true and correct and, save where the context indicates otherwise, fall within my personal knowledge.
2. Accountability Now is a non-profit organisation which seeks to exact accountability and to promote responsiveness to the needs of ordinary people. A full record of its various activities is located on its website www.accountabilitynow.org . za.
3. On 14 May 2015 the President of the Republic of South Africa and the Minister of Justice and Correctional Services concluded a written agreement with the then National Director of Public Prosecutions ('the NDPP'), Mr Mxolisi Nxasana ('Nxasana'), in terms of which the NDPP agreed to resign his post with effect from 1 June 2015 and the President and the Minister agreed that he would, in return, receive payment of the sum of R17 357 233,00 'in full and final settlement of all claims of whatsoever nature arising out of his employment ...'.
4. A copy of the agreement signed by the NDPP and an unidentified official on behalf of the President and Minister is attached to this affidavit, marked 'A'.
5. It had previously been contended in court papers filed by Nxasana in the High Court of the Gauteng Division, Pretoria, under case no. 59/60/14, that he was a fit and proper person for office and that no basis presented itself for his suspension from conducting his duties as the NDPP.
6. It was subsequently expressly recorded in the aforesaid settlement agreement 'that the President recognises that the NDPP is professional competent, sufficiently experienced and conscientious and has the requisite integrity to hold a senior public position both in-the public and private sector'.
7. As the settlement agreement demonstrates, it was acknowledged by the President and the Minister that Nxasana was indeed a fit and proper person to hold office. This is further demonstrated by the fact that the settlement received by Nxasana, in the sum of R17 357 233,00, represents the remuneration which he would have received had he continued in office and completed his term.
8. It follows from the aforegoing that there was no lawful basis upon which the NDPP might have been required to vacate his office and resign.
9. This conduct should be read against a background where the NDPP, in the course of his duties as such, had issued various instructions regarding investigations and prosecutions which had the potential to cause discomfort to the President or persons closely associated with him.
10. It has been reported in the media that the NDPP had reacted positively to a request late last year from the then head of the Hawks unit, Mr Anwar Dramat, and the independent police investigating director, Mr Robert McBride, to review decisions taken by the KwaZulu-Natal Director of Prosecutions to withdraw charges against Mr Thoshan Panday, a business person linked to the President's son, Edward, and a relative, Debo Mzobe. It was further reported that pursuant to this request Nxasana had appointed Adv Gerrie Nel to reconsider the Panday investigation.
11. It has been further suggested in the media that Nxasana was out of favour because he had permitted the reinstatement of fraud and corruption charges against the suspended police crime intelligence head, Mr Richard Mdluli.
12. A further report stated that it is rumoured that Nxasana had indicated that he might be receptive to the reinstatement of corruption charges against the President should the pending review application by the Democratic Alliance succeed.
13. It has been formally recorded, as set out above, that Nxasana is regarded by the President and the Minister as a fit and proper person to hold office as the NDPP. The settlement agreement reflects as much. Accordingly, there was no lawful basis for his resignation against the payment of the sum of R17 357 233,00.
14. The only inference to be drawn is that the President and the Minister wished to secure Nxasana's resignation for reasons that he had issued instructions regarding investigations and prosecutions, or anticipated doing so, which would cause discomfort or embarrassment to the President or persons close to him. As such, the settlement agreement with Nxasana was concluded with a corrupt intention and s 9 of the Prevention and Combating of Corrupt Activities Act 12 of 2004 has been contravened by the President and the Minister.
15. Accountability Now addressed a letter to the Secretary General of the African National Congress on 23 June 2015 complaining of the criminal activities of the President during May and June 2015. A copy of the letter is attached to this affidavit marked 'B'. It is also on the website home page.
16. It is not necessary, pursuant to this complaint, to investigate the crimes mentioned in the letter attached, marked '8', other than the contravention of s 9 aforesaid, as the Judge President of the ·North Gauteng High Court has already given directions in respect of other matters mentioned in the said letter.
17. Mr Mantashe has not replied either timeously or at all to the letter attached marked 'B' and the time limit set in it has expired. He has however let it be known in the press that Accountability Now should proceed as it is advised to proceed.
18. This affidavit founds a request that a charge of contravening s 9 as aforesaid be investigated and it is also the basis for a request that the Asset Forfeiture Unit be required to seize the payment to the former NDPP in terms of its powers.
19. A draft charge sheet is annexed hereto, marked 'C', to facilitate the expeditious investigation of the complaint so that the necessary docket can be placed before the Director of Public Prosecutions for the Western Cape without delay. It is apparent from the -draft that an alternative count of defeating the ends of justice has been included as an alternative to the main count of contravening the said section 9.
20. The evidence that still requires investigation is the identity and authority of the person who signed the agreement attached marked 'A' in Cape Town on behalf of the President and the Minister. It should also be drawn to the attention of the investigating officer that there has never been any reasonable published explanation that properly accounts for the conclusion of the agreement, despite the request for an explanation made in the letter annexed hereto, marked 'B'.
21. I request that the matter be investigated without delay.
ROBERT PAUL HOFFMAN
20 July 2015
Issued by Accountability Now, July 20 2015