Letters a foretaste of Parliament battle

As Parliament gears up to referee the battle between Public Protector Lawrence Mushwana and National Director of Public Prosecutions Bulelani Ngcuka, new details of the strife between them is revealed in correspondence obtained by the Mail & Guardian.

At the centre of the dispute was Ngcuka’s statement last August that there was a prima facie case of corruption against Deputy President Jacob Zuma over the multi-billion-rand arms deal, but that he would not prosecute him as the chances of success were not strong enough.

The details, contained in letters between Mushwana and former justice minister Penuell Maduna, who has backed Ngcuka, cast new light on the strategies that may be employed by both sides when Parliament begins looking at Mushwana’s report next week. The letters were obtained by the M&G this week.

The letters show that Mushwana’s report, as submitted to Parliament, did not include crucial issues that formed part of his investigation of Zuma’s complaint against Ngcuka. The letters also highlight Ngcuka’s likely insistence to the parliamentary committee that Mushwana had agreed not to pursue Zuma’s complaint against Ngcuka until after the trial of Zuma’s financial adviser Schabir Shaik, expected to start in October.

The M&G is in possession of two letters Mushwana wrote to Maduna.
In both, dated February 10 and 25 respectively, Mushwana suggests Ngcuka’s public statement that there was a prima facie case of corruption against Zuma was contradicted by Ngcuka’s “detailed report” to Maduna. The report was a lengthy summary of the investigation against Zuma and was submitted by Ngcuka to Maduna before his public statement last August.

In his letter, Mushwana said the report showed nothing more than “a suspicion” against the deputy president that did not justify the public use of the term “prima facie case”. He wrote: “From the evidence contained in the report, we find it difficult to conclude that there is anything more than a suspicion of impropriety against the Deputy President.”

But Mushwana put Ngcuka in a double bind: he said that Ngcuka’s “summary of substantial facts” prepared for the prosecution of Shaik did, in fact, indicate a “prima facie” case against Zuma. On this, Ngcuka was duty bound to prosecute Zuma, which he did not.

Mushwana used these words: “[The summary] not only informs the accused [Shaik and companies] of the allegations against them, but also goes further and establishes a case of corruption against the deputy president”.

Mushwana’s report, however, did not include his initial claim of contradictions between the “summary” and the “report”. Rather, it contained a different explanation of why it was unfair of Ngcuka to have used the “prima facie” expression. In his report, Mushwana heavily relied on a textbook definition of the term which holds that such a finding can only be made by a court.

Mushwana’s view, expressed in the February letters, seems to be what sparked a bitter reaction from Scorpions head Leonard McCarthy. McCarthy saw Mushwana’s actions as an attempt to review Ngcuka’s decision not to prosecute Zuma, and also accused Mushwana of “somersaulting”.

Related to this was whether Mushwana was entitled to investigate Zuma’s complaint at all before the Shaik trial had been concluded. Mushwana denies he gave assurances he would not conclude his investigation before the trial, but Ngcuka is likely to argue before the parliamentary committee that Mushwana had, in fact, given such an assurance.

On February 16 Mushwana had met with Ngcuka to discuss the matter. Afterwards, on the same day, Ngcuka wrote to Mushwana saying: “As explained to you, the legal considerations aside, it would be premature and improper for you, by virtue of the sub judice rule, to evaluate the same issues that would be traversed during the forthcoming trial of State v Shaik in October 2004. I am glad we were able to agree on this.”

Underlying Ngcuka’s contention and the agreement that Ngcuka seems to allege Mushwana was party to, is the fact that the Shaik charges are based on the same set of facts investigated against Zuma. Ngcuka is likely to contend that it would have been improper for Mushwana to assess whether the term “prima facie” had been correctly used without full reference to the evidence against Shaik, but that to do so before the trial would prejudice the trial.

In his report to Parliament, Mushwana insisted that his approach could not have infringed the sub judice rule.

Speaking to the M&G on Thursday, Mushwana made it clear he did not think Parliament had the right to review his decision - only to decide how to act on it. “I don’t think any institution can review a report of the Public Protector because it’s like a judgement.”

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