The advocate tipped to be South Africa's new prosecutions boss - and who
could ultimately decide the fate of presidential aspirant Jacob Zuma - was
an active member of the ANC leader's legal
team when he was first charged with corruption.
The Star reported yesterday that advocate Muzi Wilfred Mkhize, currently senior
counsel at the Durban Bar, is a hot favourite to become national director of
public prosecutions (NDPP).
The hiring of the director is done by the president and is considered a
political appointment.
Mkhize was part of Zuma's "rainbow" legal team when Zuma appeared in the Durban
Magistrate's Court in October 2005 on corruption charges.
According to the charge sheet, on brief for him that day were Kessie Naidu
SC, Kemp J Kemp
SC, Jerome Brauns
SC,
Wilfred Mkhize SC, M Patel
and M Mthembu *1.
This - and the fact that Mkhize was previously found
guilty of unprofessional conduct as a lawyer
- has raised questions about his independence and suitability for the post.
University of Western Cape law professor Pierre de Vos said the constitution
required the NDPP to be someone who acted independently and was seen to be
independent.
"There would be serious question marks over the independence of the National
Prosecuting Authority (NPA) if the director was in the pocket of a politician or
could be seen to be in the pocket of a politician.
"Given the fact that Zuma is involved in a fight with the NPA, it would be
ethically and legally problematic
to appoint him, and there would be a strong case that Mkhize is not a fit and
proper person as required by the NPA Act."
Another factor, according to De Vos, that could make his appointment "illegal"
was the fact that he had previously pleaded guilty to misconduct.
This related to his chairing of an internal disciplinary inquiry at the
Ubuhlebezwe (Ixopo) municipality, in which he found the chief financial officer
guilty of misconduct and recommended his immediate dismissal.
It later emerged that prior to the hearing, he had provided the municipality
with written legal opinion on the issue, recommending what charges should be
laid and stating that "on those charges he will be found guilty and be
dismissed".
Mkhize's ruling was overturned on review before the Natal Provincial Division,
and he was admonished and fined
by the KwaZulu Natal Society of Advocates.
As things stand, Mkhize, who hails from
near Zuma's Nkandla homestead *2, could be the man who
decides whether Zuma faces charges.
Zuma's lawyer Michael Hulley yesterday declined to comment on Mkhize's possible
appointment.
A legal source said Mkhize should not participate in any decision regarding an
accused he once represented.
Another source said that while he accepted that people might be troubled by
Mkhize's links to Zuma, it seemed Mkhize had been involved in Zuma's defence
only on that one, brief occasion.
Koos van der Merwe of the IFP said that by allegedly considering to appoint
Mkhize as the new national director, the ruling party would effectively draw
a big black line through its "pious
assurances" of integrity and honesty and the independence
of the prosecuting authority.
"If true, further, it is becoming clear that
the ANC is not interested in an independent
prosecuting authority, but wants a party loyalist who will
carry out the instructions of his political masters," said Van der Merwe.
The fledgling Congress of the People yesterday declined to comment on the
matter, saying it "did not have all the details".
"We can only comment once we have full details on the matter," COPE KwaZulu
Natal spokesperson Siyanda Mhlongo said.
The ANC also declined to comment, saying it would comment only once the
appointment had been made.
Zuma will appear in the Pietermaritzburg High Court next Wednesday, when the
matter is expected to be adjourned for him to apply for a permanent stay of
prosecution.
Judge Leona Theron will handle the adjournment, but has not been appointed to
hear any applications or the trial.
"There were only two judges on criminal duty in Pietermaritzburg last week. One
was Judge Theron and the other was Judge Chris Nicholson. So
it was an easy choice for
the judge president (Vuka Tshabalala)," a court source said, referring to the
fact that Judge Nicholson can no longer handle the case because of his political
conspiracy findings.
It is believed that Judge Tshabalala is still considering which judge will hear
the application and whether it should be
before a full bench *3.
With acknowledgements to
Tania Broughton and The Star.
*1All five
advocates, including three senior counsel being paid with taxpayer's monies.
*2This is called tribal jurisprudence, the fine line where
first world and third world jurisprudence meet.
*3Of Messrs Justices Jan Combrink, Jan Huge Owe and Hilary
Squires.