[DEBATE] : (Fwd) Mbalula v Mbeki; Mpshe plagiarism backfires?

[Patrick Bond]

Fikile Mbalula

OPEN LETTER TO THABO MBEKI

Dear Cde Mbeki
The events that came to pass in our country in the last week have left 
me very little option, but to address you directly on the matters at hand.
I am certain that you are painfully aware that the release of the 
transcripts of the conversations between Ngcuka and McCarthy, not only 
sent shockwaves through the nation, but through our movement. The NPA 
briefing finally bought closure to a painful episode of your reign both 
as President of the Republic and of the ANC. An episode one hopes will 
never come to pass ever again in the history of our movement.
It is a sad reality that the phenomenon we are dealing with today is a 
result of your actions of conniving, manipulating people and advancing 
politics of patronage. Despite the fact that you were a democratically 
elected President, you chose to run both the organisation and the 
country with a cabal which sought to commandeer everyone along your 
thinking and vision, which at times ran contrary to what the ANC stood for.
Mandela led the ANC with distinction, and acknowledged at all times that 
he will always be subject to its authority and directives, even after he 
left the office of ANC President. His leadership at the helm of the ANC 
continues to inspire our forward momentum and his wisdom will remain a 
point of reference for generations to come.
Mandela’s wise words, an icon of our liberation struggle, an embodiment 
of the ANC’s values, continue to reverberate to this day. At the time of 
your acceptance of your election as President of the ANC at the Mafikeng 
Conference in 1997, Madiba said, “...here are the reigns of the movement 
– protect and guard its precious legacy; defend its unity and integrity 
as committed disciples of change; pursue its popular objectives like 
true revolutionaries who seek only to serve the nation… As an ordinary 
member of the ANC I suppose that I will also have many privileges that I 
have been deprived of over the years: to be as critical as I can be; to 
challenge any signs of ‘autocracy from Shell House’; and to lobby for my 
preferred candidates from the branch level upwards… I look forward to 
that period when I will be able to wake up with the sun; to walk the 
hills and valleys of Qunu in peace and tranquillity. And I am confident 
that this will certainly be the case because, as I do so, and see the 
smiles on the faces of children which reflect the sunshine in their 
hearts, I will know, comrade Thabo and your team, that you are on the 
right track; you are succeeding. ”
Having reflected on Mandela’s words, I am certain that you either did 
not hear his wise words, or you deliberately elected not to take heed of 
them. His challenge to you to defend the unity and integrity of the ANC 
was central to his message and should have been a beacon in your 
leadership of the ANC. The smiles on the faces of the children are yet 
to reflect the sunshine in their hearts, because that moment is yet to come.
Mandela handed you a vibrant and united ANC, yet at the twilight of your 
Presidency, you chose to betray everything that Mandela and those that 
came before him stood for, struggled for, and laid down their lives for. 
In a moment of intoxication with
power, you forgot Madiba’s wise counsel and allowed our glorious 
movement to stumble on the edge of an abyss.
When your cabal was finally defeated in Polokwane because of its actions 
and underhanded tactics at securing a third term for you as a President 
of the ANC, they went into an elaborate conspiratorial mode, famously 
dubbed “the fightback strategy,” which clearly carried your blessing. It 
is one’s considered view that it was the failure of this strategy that 
led you and your lieutenants to spawn the so-called Congress of the 
People as a vehicle to fight the ANC and undermine its hegemony and legacy.
It is a sad day in our nation that one has to allude that your legacy, 
at its pinnacle, has only brought us shame and disgrace, overshadowing 
what would have otherwise been a commendable political career. It is not 
my place to pass judgement, but am convinced that history will judge you 
very harshly for what you have come to represent in the latter day.
I find it rather instructive that in your reaction to the release of the 
Ngcuka/McCarthy transcripts you chose to pose the question as to how did 
the tapes come to be in the possession of the ANC President’s lawyers. 
The more fundamental issue which I would have expected would be your 
primary preoccupation would be how did you fail the nation so badly such 
that the chain of events over the last nine years landed us in the 
position we find ourselves in today. How did the state apparatus become 
so embroiled in partisan politics that sought to rip our movement apart 
such that not even the highest office in the land had the political will 
to put brakes on the rot that was settling in?
While the movement may take collective responsibility for the actions of 
our government as a ruling party, however, my heart bleeds that the 
relationship of trust the ANC conferred on you in Mafikeng was broken. 
The mantra of your Presidency, “the rule of law” was betrayed in the 
most vulgar way possible.
•
When spy allegations were levelled at Bulelani Ngcuka, then National 
Director of Public Prosecutions, you were swift in your appointment of 
the Heffer Commission to probe those allegations as an attempt to 
protect him;
•
When the infamous off-the-record briefings conducted by Bulelani Ngcuka 
came to light, where Ngcuka is alleged to have made libellous remarks 
about Jacob Zuma, who was the Deputy President of the Republic at the 
time, you conveniently turned a blind eye and failed to act;
•
When Bulelani Ngcuka, flanked by then Minister of Justice, Pennuel 
Maduna addressed a media briefing wherein he suggested that Cde Zuma had 
a case to answer, but he will not prosecute him, you once again 
conveniently failed to act on what was a blatant violation of Cde Zuma’s 
rights;
•
You then proceeded to appoint Phumzile Mlambo-Ngcuka as Deputy President 
of the Republic as a reward to the loyalty of the Ngcukas;
•
When the Public Protector pronounced on the violation of Cde Zuma’s 
rights, his findings were met with scorn, and again, no action was 
forthcoming on your part;
•
When the National Intelligence Agency expressed alarm about the unlawful 
activities of the Scorpions, once again you did nothing;
•
When the Browse Mole report came to light, which was produced by the 
Scorpions, you were quick to dismiss it as work of counter-revolutionary 
forces, and proceeded to ignore the recommendations of Parliament’s 
Joint Standing Committee on Intelligence. In an interesting twist or 
irony, McCarthy, who was the head of the DSO at the time was rewarded 
with a handsome golden handshake and a recommendation for a high ranking 
job with the World Bank, at a time when he and those who were 
responsible for the Browse Mole report should have been under investigation;
•
You did not hesitate to destroy a relationship that spanned decades 
between yourself and Billy Masetlha when he raised concerns about the 
allegedly hoax emails that were making rounds, and you defined your 
relationship with him as irretrievable.
•
You continued to protect Jackie Selebi, the National Police Commissioner 
and did not hesitate to suspend Vusi Pikoli, the National Director of 
Public Prosecutions when he sought to arrest Selebi, for reasons known 
only to yourself;
•
You dismissed Cde Zuma, then Deputy President of the Republic, on the 
basis of inferences in the Shabir Shaik trial. Interestingly, you were 
quick to cry foul when Justice Nicholson made far reaching findings in 
his judgements and drew inferences on your perceived interference with 
due processes of law;
•
You failed to take the nation into confidence and confirm that you were 
the author of the now famous letter to the Standing Committee on Public 
Accounts (SCOPA) on the arms deal, a letter which was a central piece of 
evidence at the Shaik trial;
•
You conducted briefings to ANC structures, religious community, 
opposition parties (particularly the DA) on how corrupt Cde Zuma was, in 
an attempt to garner public support and sympathy, and whereby you 
arrogated yourself the role of being a judge in Cde Zuma’s persecution;
•
You were highly implicated as a central player in the compilation of a 
dossier which sought to defame Cde Zuma in the run-up to Polokwane, 
which was distributed among ANC delegates at conference;
•
You failed to engage the leadership of the ANC in a face to face 
engagement, and you reduced your relationship with Cde Zuma to an 
exchange of letters, whose contents you leaked to Terror Lekota;
•
You flatly refused to campaign for the ANC, despite your assertion that 
you remain a loyal member of the ANC, and demanded that a letter be 
written to you in this regard. It was the first time ever that a cadre 
of the ANC had to be written a letter in order for them to campaign for 
the ANC. Not even Mandela ever made such a demand on the ANC. Such 
practice is foreign to the tried and tested traditions of the ANC and 
can best be described as anti-ANC;
It is therefore my considered view that you left the state apparatus in 
absolute disarray and the state machinery completely paralysed.
It is equally interesting that you believe the Inspector-General will 
save the day in what has become public humiliation of Ngcuka and 
McCarthy. The fundamental question that must preoccupy the 
Inspector-General is not how the tapes found their way to the ANC 
President’s lawyers, but rather how deep did this conspiracy ran and to 
ensure that relevant organs of state act swiftly to bring the 
perpetrators to book.
What happened to the values of the ANC, which at some point in your 
political career embodies and taught others? What happened to the ethos 
that says the ANC is bigger than all of us, we are but humble servants 
of this revolutionary movement? What happened to the pursuit of the 
founding ideals of the ANC, which the giants of our revolution who 
include Cdes Langalibalele Dube, Sol Plaatjie, Walter Sisulu, Moses 
Kotane, Oliver Tambo, Nelson Mandela and many others personified?
There remains little doubt that the establishment of COPE has your 
blessings and you continue to encourage them to swear by your name 
because you do not believe that the ANC can advance the age of hope 
under the stewardship of Cde Zuma, and that it will survive without you.
I doubt if today you were president, this conspiracy that has come to 
light would have been uncovered.
Fikile Mbalula
HEAD OF ORGANISING AND CAMPAIGNS AND MEMBER OF THE ANC NEC AND NWC
Writing in his personal capacity

***

Business Day

15 April 2009
DA says Mpshe used Hong Kong judgment in support of his Zuma ruling
ERNEST MABUZA


Legal Affairs Correspondent

DEMOCRATIC Alliance (DA) researcher James Myburgh has suggested that 
acting national director of public prosecutions Mokotedi Mpshe relied on 
a 2002 Hong Kong judgment — later overturned on appeal — to drop the 
corruption case against African National Congress president Jacob Zuma.

Myburgh, editor of Politicsweb, wrote a lengthy column for the website 
yesterday. He suggests that the DA may have a case, based on his 
interpretation of Mpshe’s statement.

In his statement last Monday, Mpshe quoted extracts from damning 
recordings of various telephone conversations between former Scorpions 
boss Leonard McCarthy and others in December 2007 during which the case 
against Zuma was discussed. Mpshe said it was against this broad 
principle of abuse of process that McCarthy’s conduct must be seen and 
tested.

Mpshe said: “The question for close consideration is encapsulated in 
expressions such as ‘so gravely wrong’, ‘gross neglect of the elementary 
principles of fairness’, ‘so unfair and wrong’, ‘misusing or 
manipulating the process of the court’.” Mpshe said if the conduct could 
be so categorised, it would be unconscionable for the trial to continue.

Myburgh wrote that it was quite remarkable how Mpshe’s opinion of 
McCarthy so closely resembled that of Justice Conrad Seagrott’s opinion 
of the prosecution in his case in the Hong Kong High Court in 2002.

Seagrott had said: “It is against this evolved statement of broad 
principle that the prosecution’s failures and shortcomings with regard 
to disclosure must be seen and tested. Those for close consideration are 
best summed up by such expressions as ‘so gravely wrong’, ‘gross neglect 
of the elementary principles of fairness’, ‘so unfair and wrong’, 
‘misusing or manipulating the process of the court’.” Seagrott had asked 
if those failures could properly be so categorised, whether they were 
such as to make it unconscionable that a re-trial should go forward.

Myburgh said Seagrott and Mpshe’s conclusions were also rather similar, 
noting further that the Seagrott ruling was overturned on appeal. 
Myburgh said in its judgment the Court of Final Appeal had noted that 
the court must take account “of the public expectation that persons 
charged with serious criminal offences will be brought to trial unless 
there is some powerful reason for not doing so”.

A senior NPA official, who did not want to be named, said Mpshe’s 
decision to drop the charges was provided for in law.


mabuzae at bdfm.co.za

***

NPA boss plagiarised judge in Zuma ruling
15 April 2009, 06:55

Red-faced officials have admitted that acting National Prosecuting 
Authority head Mokotedi Mpshe plagiarised a Hong Kong judge in his 
explanation of why he was dropping all charges against ANC President 
Jacob Zuma.

But NPA spokesperson Tlali Tlali on Tuesday insisted that Mpshe's 
failure to acknowledge his borrowing of Hong Kong High Court Justice 
Conrad Seagroatt's December 2002 ruling - in his reasoning on the Zuma 
decision - was an "innocent oversight".

"We are recognising that what we said was based on that judgment and we 
are in no way attempting to pass that ruling off as our own. We regret 
the oversight, but it in no way detracts from the decision that advocate 
Mpshe reached," he said.

Tlali further pointed out that Mpshe was fully aware that his statement 
on the Zuma decision would receive international media attention, and he 
would therefore not have deliberately plagiarised from any material.

Mpshe, who is on leave, was not available for comment on why he had 
relied so heavily on Justice Seagroatt's decision, which was ultimately 
overturned on appeal.

James Myburgh, the editor of the website politicsweb.co.za, on Tuesday 
revealed that large tracts of Mpshe's lengthy explanation were 
word-for-word copies of a judgment handed down by Justice Seagroatt.

In words echoed by Mpshe in his reasoning on the Zuma decision, Justice 
Seagroatt had said: "It is against this evolved statement of broad 
principle that the prosecution's failures and shortcomings with regard 
to disclosure must be seen and tested. Those for close consideration are 
best summed up by such expressions as 'so gravely wrong', 'gross neglect 
of the elementary principles of fairness', 'so unfair and wrong', and 
'misusing or manipulating the process of the court'. If those failures 
can properly be so categorised, are they such as to make it 
unconscionable that a retrial should go forward?"

Myburgh said: "It rather strikingly cites all the British Commonwealth 
judgments that Mpshe's statement referred to. Even more strikingly, the 
phrases quoted are almost all the same as well - give or take some 
self-serving truncation and rewriting by the NPA."

This article was originally published on page 1 of The Star on April 15, 
2009