Publication	Business Day
Date	2011-11-23
Reporter	Paul Hoffman
Web Link	www.bday.co.za

‘The presumption of innocence has no bearing on the accountable and efficient functioning of the Presidency’

It did not take long for President Jacob Zuma to react to the press investigations into the allegations of wrongdoing and economy with the truth in which his spokesman, former minister of transport Mac Maharaj, has become embroiled.

It is all hands to the pumps for Maharaj. He has elected, in characteristic fashion, to use attack as the best means of defence now that bribery allegations concerning the tender for credit card drivers’ licences of 1996 have resurfaced and the verisimilitude of his answers under interrogation by the Investigating Director of the National Prosecuting Authority (NPA) has been called into question both in the press and on TV in a remarkable interview he gave to Justice Malala on Sunday morning. (The podcast of the interview can be viewed www.politicsweb.co.za.)

Zuma seeks to sweep the matters under the nearest carpet by referring the allegations to the Seriti commission of inquiry, newly appointed to look into allegations of wrongdoing in the arms deals of 1999.

The allegations against Maharaj have nothing to do with the arms deals.

The transactions in question antedate the arms deals by a considerable margin and have only one similarity: the same company that helped get Schabir Schaik a 15-year jail sentence is fingered as the bribe payer in the Maharaj case as well.

In a fine display of obfuscation, Maharaj has let it be known that he is not prepared to be interrogated by the press or anyone other than institutions of state, in circumstances in which his rights are protected. He relies on section 28 of the NPA Act to counterattack against some of his accusers in the media and has declined to answer as simple a question as: "Did you lie to the prosecutor who interrogated you under the section?" If Maharaj is an innocent man, he ought to have no difficulty in answering that question in the negative. The fact that he declined repeated invitations to do so on the Justice Factor TV show speaks volumes.

As to the section 28 red herring: the relevant parts of the section read as follows: "(8)(a) The law regarding privilege as applicable to a witness summoned to give evidence in a criminal case in a magistrate's court shall apply in relation to the questioning of a person in terms of subsection (6): Provided that such a person shall not be entitled to refuse to answer any question upon the ground that the answer would tend to expose him or her to a criminal charge. (b) No evidence regarding any questions and answers contemplated in paragraph (a) shall be admissible in any criminal proceedings, except in criminal proceedings (of limited scope which are not applicable)."

The "privilege" to which the section refers is the privilege against self-incrimination. It follows that the fact that Maharaj seeks to rely on the section means that he indeed found it necessary to answer questions in a manner that would tend to expose him to criminal charges. Otherwise the section would have no bearing on the issues now being raised in relation to the veracity of the answers given when he was interrogated.

Answers of an exculpatory nature that do not expose Maharaj to any criminal charge are clearly not covered by the section. If he is indeed an innocent man who gave truthful answers, why does he find it necessary to duck and dive in so unseemly a fashion?

It is also remarkable that two investigative reporters have spent a mere two months ferreting out the "missing link" contractual document, which the NPA has been unable to locate with the full machinery of the state at its disposal. This raises the question whether the NPA under its post-Polokwane leadership has any appetite for the politically incorrect business of investigating the allegations of wrongdoing against highly placed and politically well-connected people such as Maharaj. It is also perhaps the reason for Maharaj expressing his willingness to deal with officialdom.

As it appears that the only relevant institution of state that is prepared to act without fear, favour or prejudice in matters of this nature is the public protector, it is to that safe haven that seekers of the truth must turn, if not for any other reason than to get Maharaj to answer the questions he refused to answer when they were patiently and repeatedly put to him by Malala on TV. A complaint has been laid with the office of the public protector on the basis of the revelations by the Sunday Times and also in order to ascertain how it was possible for two under- resourced journalists to beat the whole of the NPA to the knock-out documentation.

Maharaj also calls in aid the offence created under section 41 of the same act.

The relevant bits read: "(6) Notwithstanding any other law, no person shall without the permission of the national director or a person authorised in writing by the national director disclose to any other person … (c) the record of any evidence given at an investigation as contemplated in section 28(1), except (i) for the purpose of performing his or her functions in terms of this act or any other law; or (ii) when required to do so by order of a court of law."

There does not appear to have been any activity that can properly be described to cover the phrase "disclose to any other person" nor does the section criminalise mere possession of the record of evidence given at an investigation under section 28(1). It is accordingly difficult to see what criminal offence has been committed in terms of the section. The inescapable inference appears to be that the laying of charges is simply a further manifestation of the "attack is the best means of defence" philosophy adopted by Maharaj to bully and bluster his way out of the tight spot in which he finds himself.

It is lamentable that he should see fit to declare that the Scorpions could not pin anything on him when the Scorpions, by special design of Polokwane, no longer exist to defend themselves or explain the reasons for their lack of progress with the investigation of allegations of bribery and corruption involving Thales and the Department of Transport, then headed up by Maharaj himself.

Perhaps the public protector will cut through the posturing and pouting and get Maharaj in soon for a cosy little chat, during which he can, as he will be dealing with an institution of state, answer all of the questions at present swirling around his head and that of his wife.

It is quite intolerable that a person who acts as the spokesman of the president should find himself embroiled in the controversy in which Maharaj finds himself.

The old adage that "when the spokesman becomes the story, he is past his sell-by date" is surely applicable.

Tony Blair and David Cameron will confirm this. Jimmy Manyi should know it too.

The presumption of innocence is applicable in any criminal proceedings that may ensue but it has no bearing whatsoever on the ethical, professional, accountable and efficient functioning of the Presidency.

The best interests of the effectiveness of the office of the presidential spokesman surely dictate that it is time for Maharaj to step aside, at least until the unanswered questions have been satisfactorily dealt with in his interview with the public protector and, if this is possible, a suitably exculpatory report from the public protector has seen the light of day.

• Hoffman is a director of the Institute for Accountability in Southern Africa.

With acknowledgements to Paul Hoffman and Business Day.

Bravo.

I could have said so myself.