“So, let us today drudge on about our inescapably impossible task of providing every week a first rough draft of history that will never really be completed about a world we can never really understand.” — Phil Graham, US newspaperman,1963.
If newspapers are the first rough draft of history the world should be rendered more understandable, and the rough draft corrected for errors and falsifications when books are subsequently written about controversial moments in history.
Alas there are far too many books on South Africa’s contemporary history that do not simply fail to correct the “facts” but deliberately amplify false narratives that had featured in newspapers at those moments. Marion Sparg’s authorised biography of the first national director of public prosecutions, Bulelani Ngcuka: The sting in the tale, is not one of them.
The book sheds a welcome light on a pivotal moment of South Africa’s democratic history: Bulelani Ngcuka’s decision not to prosecute Jacob Zuma for allegedly taking bribes from the French arms dealer Thales (formerly Thompson CSF) while acknowledging that a prima facie case of corruption existed. He says if he had his time over, given the same circumstances, he would have made the same decision.
Given our present context, the book enables us to employ the exact science of hindsight to contemplate how our shameful political history of the past two decades might have been different.
Given my present context of co-facilitating a support group of whistleblowers, WB4+Change, it seems to me that Ngcuka was in character doing what whistleblowers do: making public disclosures of prima facie wrongdoing. However he was constrained by the failure of the ANC-dominated legislature to empower him with better laws to protect whistleblowers from retaliation by corrupted powers when they spoke inconvenient truths to them.
In 2003, had the state been fully geared to do what the Constitution obliges it to do in clause 7 of the Bill of Rights — “respect, protect, promote and fulfil the rights of the Bill of Rights” (especially with respect to whistleblowers) — perhaps other conscientious objectors and potential whistleblowers would have come forward to do their civic duty to corroborate the allegations against Zuma with confirmatory evidence to push the likelihood of a successful prosecution across the line.
Ngcuka found himself having to make a judgment call as to whether he had a winnable case without that backup. Over the previous four years the political risks had escalated, and the legal hurdles had magnified.
Politically he was up against a plausible perception that Zuma had been scapegoated. As Andrew Feinstein discloses in his book After the Party, the entire ANC had already been captured by the arms dealers when they had made large donations to the ANC’s 1999 election war chest.
Legally, “paper crimes” are much harder to prosecute than “blood crimes”. Fingerprints left on a bloody knife are much easier to match to a suspect than handwriting on an encrypted fax. While he may have concluded that Zuma was guilty on the balance of probabilities, the evidential burden on the state in criminal matters is “beyond reasonable doubt”.
I am persuaded by the book that Ngcuka made a perfectly rational decision in law not to prosecute. It is likely that Zuma would have been acquitted (as happened in his rape case). As we know, Zuma has very canny lawyers who know how to game the legal system at every turn. I hesitate to say “good” lawyers because that has a moral shade to its meaning that many legal practitioners simply do not deserve. Whatever reasonable doubt Ngcuka had 20 years ago about Zuma’s guilt, it is a heavy irony that the subsequent litigation-by-attrition “lawfare” strategy pursued by Zuma’s lawyers has only served to compound the prima-facie felonies Ngcuka saw back then but couldn’t prosecute. As each postponement and abuse of legal process happens, the less we have reason to doubt whether Zuma was in fact guilty 22 years ago.
How did Ngcuka land in such a fraught situation? What can we learn from that to extricate ourselves from the even more fraught situation we face today?
Truth has invariably been subordinated to power within the ANC government ever since General Bantu Holomisa was expelled from the ANC in 1996. It was a few weeks before the Constitutional Assembly adopted our new Constitution, much admired for its entrenched Bill of Rights that cherished truth, freedom and conscience. Holomisa’s offence was that he failed to report internally that Princess Stella Sigcau had taken a bribe from Sol Kerzner when she was president of the Transkei bantustan. Instead he had brought the ANC into disrepute by testifying to that fact in public at the Truth and Reconciliation Commission. Holomisa’s expulsion was the inflection point that marked a turn in the political culture of the ANC against tolerance for inconvenient truths.
Given Holomisa’s fate, three years later it was understandable why the two conscientious ANC MP’s who had witnessed wrongdoing in the arms deal chose to make anonymous disclosures to Andrew Feinstein in his capacity as the ranking member for the ANC on parliament’s standing committee on public accounts. Nevertheless, Feinstein was still forced to resign his seat as an MP. What fate would the arms deal whistleblowers have suffered had their identities been revealed?
Sparg’s biography confirms my view that Ngcuka was the next casualty of the ominous trend in the ANC’s increasing cultural aversion to truth as it laid its hands on the levers of power. He was a “witness bearer” – a term that our WB4+Change group prefers for they continue to bear the burden of truth because the National Prosecuting Authority (NPA) has been so slow to relieve them of the burden by prosecuting the wrongdoers whose crimes they have witnessed.
Of all the fears that whistleblowers (and potential whistleblowers) have, their greatest fear is that nothing will change: that their sacrifices would have been in vain because the NPA remains a far cry from what it was under Ngcuka’s watch.
It could have been different. As professor Richard Calland writes, during the honeymoon period after the adoption of the new Constitution, civil society and the state were engaged in a promising engagement to enact what was originally envisaged as the “Open Democracy Bill”, aimed at giving concrete expression to the newly adopted Bill of Rights. Unfortunately, as so often happens in the reductionist world of politics, the holistic integration of human rights (especially those rights that had a bearing on transparency and accountability) ended up in fragmented and disconnected pieces of legislation, the Promotion of Access to Information Act and the Protected Disclosures Act.
In practice both acts have tended to have a perverse effect. The legal framework was not aligned to the political landscape that prevailed then. Two decades on, it is arguably worse. Important information still remains buried beneath arcane bureaucratic layers and incriminating disclosures are kept hostage by endless abuses of legal process in the weaponised use of disciplinary procedures against whistleblowers.
A stark illustration today is the Passenger Rail Agency of South Africa’s board’s continued persecution of Martha Ngoye and Tiro Holele in an endless Slow (strategic litigation on whistleblowers) suit. One of the charges they face is “bringing the organisation into disrepute for testifying at the Zondo Commission”. I kid you not.
The Protected Disclosures Act of 2000 was, and remains, fatally flawed despite the amendments made in 2017. Only internal disclosures are sufficiently protected. Section 9 does allow for a “general public disclosure” but as Calland (who was involved in its drafting) admits in his submission to the Zondo Commission: “A whistleblower who is already hesitant, not to say querulous, will be even more anxious about the level of proof required by section 9; it may well deter him or her from making the disclosure. That they were already contemplating a general (external) disclosure rather than an internal/ordinary disclosure is already an indication of the gravity of the situation; when the stakes are higher, in many and perhaps most cases a whistleblower will back off; few will have the courage and the character needed to take the risks involved (a feature of all of the whistleblowing stories that have emerged into the public eye in recent years)”.
To conclude, this sweep of history suggests that the ANC moved from being culturally blind to truth, to culturally bound to self-deception and is now burned by a culture of systemic corruption, as the Zondo Commission has confirmed.
But culture is never static. The sting in our tales can be transformed from toxic poison to tonic remedies, and our culture can change for the better if the emancipatory power of truth is embraced. For, as Nigerian author Ben Okri writes, if individuals and nations “face their own truth, they will free their histories for future flowerings”.
That chimes with the philosopher Soren Kierkegaard. “Life can only be understood backwards. But it must be lived forwards.”
Thanks to Sparg’s book nobody can accuse Ngcuka of not living his life forwards with enormous courage and integrity by threading a very difficult needle. He has faced his own truth. Why, given his example, are we not seeing many others, especially civil servants in the criminal justice system, following suit?
Werksman’s Attorneys and Public Interest SA will be hosting a book launch event on Tuesday 12 July at 5pm. Marion Sparg and Bulelani Ngcuka will be joined by advocate Thembeka Ngcukaitobi for the discussion. Register here.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.