Justice Minister Mmamaloku Kubayi
Justice and Constitutional Development Minister Mmamoloko Kubayi has rejected claims that she was appointed to the post to “persecute” those in the ANC seen to be against President Cyril Ramaphosa.
Ramaphosa’s critics in the party believe that Kubayi’s appointment is part of a strategy to deal with those not aligned with the president. Ramaphosa moved her to the portfolio late last year in a mini reshuffle in which Thembi Simelane — under fire for allegedly receiving money from a VBS fixer while Polokwane mayor — was shifted to human settlements.
Kubayi told the Mail & Guardian in an interview last week that while there was speculation in the party around her appointment, it was probably aimed at undermining her as she prided herself on being a professional “who works and gives it all”.
“The minister does not prosecute. The National Prosecuting Authority (NPA) is independent, so I am not here on the instruction to persecute people,” she said.
“If a person commits a crime, they can’t come and say, ‘Mmamoloko will arrest me.’ I am not an arresting officer, I am not a prosecutor nor a magistrate or a judge, so it cannot come to me,” she said.
“I have worked hard to be where I am, as a young woman, focused on my work and moving in terms of developing myself academically and professionally. When a person does not look at that, and wants to use a flimsy narrative, that I’m just there … I’ve earned the respect that I have; I don’t think it’s respect only from the president but across the board.”
Kubayi said all ministers must enjoy the confidence of the president as this was necessary for them to be able to deliver on their mandate.
“When I am given a task, I don’t play, I don’t waffle. I do my best and I give it my all, in all the portfolios. I can say even today that it doesn’t matter where the president wants, and sends, me, I’ll do my best. He says, ‘Go and sweep there,’ I’ll go and sweep and I’ll sweep to my best.”
Kubayi gave assurances that state capture cases would be prioritised under her leadership.
A number of cases emanating from the Zondo commission into state capture have either been thrown out of court or withdrawn by the NPA due to a lack of capacity to prosecute them. The NPA has also come under fire for failing to prosecute those in high office.
Cases against Brian Molefe, Matshela Koko and Zizi Kodwa were dismissed in court after the NPA charged them but failed to produce evidence to secure convictions.
There are also concerns that the Vrede dairy farm court case in which former Free State premier and ANC secretary general Ace Magashule and Edwin Sodi are implicated could be dismissed.
Kubayi said despite the NPA’s challenges in prosecuting the state capture cases, a “lot of work” had been done by the prosecution service to bring criminals to justice. South Africa’s overcrowded prisons were a pointer to this, she added.
“You have like almost 99% of cases that are going through the system that literally have a huge number of successes in terms of prosecution. The 1% that I can allude to is the state capture. People are feeling that the cases have not been moving in the manner that they have to,” she said.
“I have given that feedback even to the national director of public prosecutions. It is not fair to say they are not doing well when we refer to the fact that every day there are people before courts brought by police and successful prosecutions.”
The NPA has been accused of arresting high-profile people without enough evidence to ensure a successful prosecution.
In a damning voice recording released by amaBhungane in December, Investigating Directorate Against Corruption (IDAC) head Andrea Johnson is heard encouraging staff members to “fake it until they make it”.
“I asked that everybody go to court because you are a team. But we asked that everybody be dressed to the nines and they were dressed to the nines. I asked that they carry those file boxes and make sure they are all marked, even if there’s nothing in the file,” Johnson said.
“I just hoped they had something in the files but they looked like a formidable team and sometimes, colleagues, that is half the battle. Look the part and you end up being the part, you end up playing the part.”
Her remarks were defended by national director of public prosecutions Shamila Batohi who said, although it was not the strategy of the NPA to “fake it”, the authority wanted to motivate staff and make them feel that their work had meaning.
Kubayi told the M&G that it was “unfortunate” that someone had recorded the conversation as it took place during a robust conversation with colleagues in a closed environment in which “people must feel free to say anything”.
“The officials could have corrected it if they felt this was inappropriate and ask why we must fake it. I don’t think it means that they must do wrong things. I think it was a matter where she was cracking a whip to say, ‘Can we get work done,’” she said.
“The frustrations that you are saying that these cases are not moving, that is how I read it. When I listened to that, I read it in the context that this is a leader of an institution feeling the pressure from South Africans that you guys are not getting things done.”
She said in her recent meeting with the NPA, the authority had explained why so many cases — including the Koko matter — had been removed from the roll.
“There have been several reasons they have been able to indicate in the discussions, one around capacity. The second issue which we are dealing with … is — if you look at Matshela Koko — the issue of analytics and the data.”
“We have asked them to look into it. The IDAC is looking at capacity there to be able to make sure that work is done before arrest.”
Kubayi said the NPA was also considering increasing investigative capacity — which it lacked — in order to improve its ability to bring complex cases to court.
She said she had confidence in Batohi.
“As a person that I have to support, I’ll give my support. I have not picked up anything untoward since I have been here. I have assured the NPA of my support as the minister for them to do their work without interference and equally I have been able to articulate that South Africans expect more,” she said.
Kubayi also acknowledged the work that needs to be done to restore citizens’ faith in the criminal justice system. She said the portfolio was both demanding and stimulating.
“It is a sensitive portfolio but, equally, quite exciting because it makes an impact in terms of the overall function of government. We are the chief litigant and chief defender in the law of the state.
“We are the people responsible for ensuring that democracy remains stable. The defence of our democracy, human rights, is key in terms of the work. The portfolio is quite important and I think it’s exciting. It has got its challenges. It is a quiet portfolio with huge opportunities for growth — even personally.”
Kubayi said her predecessors, Ronald Lamola and Simelane, had made significant progress in digitising the system and she aimed to build on their work.
One of her priorities was the maintenance of court buildings, Kubayi said, adding that she had already spoken to Public Works Minister Dean Mcpherson.
“There’s an outcry that our courts are not in the state that they should be in.”
She got reports that courts have “no electricity, lifts are not working and maintenance is not done, so it is just not conducive for judges and magistrates to work in”.
The minister added that all courts were being assessed to ascertain what work needed to be carried out.
She would also be considering ways to improve access to the courts as people often had to travel long distances to get to them.