“The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took the leap over the abyss.” Pierre de Vos, NPA plagiarism scandal maybe hides a deeper truth, Constitutionally Speaking 16/4/2009.
Today, 4 September, signals what DA leader Helen Zille has optimistically described as “the beginning of the beginning” – the day in which the much debated ‘Spy Tapes’ will be handed to the adjudicator, retired judge Noel Hurt. He will, in due course, release a redacted version of the tapes if he finds anything on them that could adversely impact on national security.
While Stephen Grootes has said that the Spy Tape judgment of the Constitutional Court raises significant concerns about the fitness for office of the depupty head of the National Prosecuting Authority, Nomgcobo Jiba, they could also prove telling, in the same regard, for another controversial figure, Mokotedi Mpshe.
Compelling questions in this regard have been raised thanks to some outstanding investigative journalism by two people who are on the periphery of news reporting – online editors James Myburgh who runs the Politicsweb website and Gill Moodie who runs the Grubstreet website.
In late November 1977 I, as a reporter with SABC television news, interviewed in Pretoria the son and daughter, then in their late teens, of Robert and Jean-Cora Smit who had been murdered the night before in was clearly a professional, politically-motivated hit.
They were, I recall, stoic in a very dignified way and I remember thinking at the time that they were simply numbed by the catastrophe that had so tragically befallen them.
It seemed common cause at the time that Robert Smit was about to reveal details of international money-laundering involving senior National Party politicians and that he had been silenced.
It also seemed common cause at the time that General ‘Lang Hendrik’ van den Bergh, who founded the then Bureau of State Security (BOSS) might have been involved given that he once told a government commission, “I have enough men to commit murder if I tell them to kill. I don’t care who the prey is. These are the type of men I have.”
However what is far more relevant today was a second example of Myburgh’s investigative journalism and the following timeline tells the story:
6 April 2009: The national director of public prosecutions, Mokotedi Mpshe, announces that he is dropping the charges against Jacob Zuma because of political interference and he cites several court judgments to justify his decision.
14 April 2009: Myburgh, in an article on Politicsweb, points out that in the court judgments cited by Mpshe to justify dropping the charges against Zuma just before an election, he makes no reference to a judgment by Justice Conrad Seagroatt of the Hong Kong High Court on 13 December 2002 despite the fact that chunks of the Seagroatt ruling are quoted almost verbatim in his press statement.
15 April 2009: NPA spokesman Tlali Tlali, claimed in response to Myburgh’s article that Mpshe’s failure to attribute his quoted extracts to Judge Conrad Seagroatt was an “innocent oversight”.
16 April 2009: Constitutional law expert Professor Pierre de Vos writes that Mpshe’s dropping of the charges against Zuma shortly before an election seemed to be based more on political expediency than juridical probity.
19 April 2009: Law experts, Marinus Wiechers and Shadrack Gutto, flay Mpshe for using the subsequently overturned judgment of Seagroatt to justify dropping the charges against Zuma.
30 April 2009: Myburgh took the issue no further and the matter might have rested there had not Moodie then followed up and tracked down Seagroatt through the Oxford University alumni. She emailed him the text of the Myburgh article. In his response, Seagroatt unequivocally accuses Mpshe of plagiarism: “I have not seen the full text of Mpshe’s decision but relying on Myburgh’s schedule of extracts, where Mpshe has directly lifted sentences or paragraphs from my judgment, it would have been proper to identify the author.”
2 February 2010: The department of justice and constitutional development reveals that minister Jeff Radebe had appointed Mpshe as an acting judge of the North West High Court in Mafikeng.
5 February 2010: The Mail & Guardian reveals that, prior the appointment of Mpshe in Mafikeng, Radebe had been lobbying for him to be appointed to the Cape bench and had first approached the then acting Judge President of the division, Jeannette Traverso, and asked her to make an acting judge position available for Mpshe. If true this raises a question. Radebe seems to have no qualms about the fact that Jeremy Gauntlett has had his application for appointment to the Cape bench repeatedly denied. Why then does he feel, as he clearly does, that Mpshe is a superior candidate for such appointment? Perhaps, in due course one of our court reporters such as Franny Rabkin at Business Day or Karyn Maughn at eNCA can ask him.
8 February 2010: Pierre de Vos describes Radebe’s interference on behalf of Mpshe as a “scandalous attack on the judiciary”.
12 February 2010: The General Council of the Bar and the lobby group Freedom under Law echo de Vos’ concerns.
Should it prove that the Spy Tapes do not exonerate President Jacob Zuma as Mpshe would have us believe, then the questions raised when he was appointed in February 2010 will undoubtedly be raised again – and the way in which he plagiarised the Seagroatt judgment will undoubtedly count against him because that raises questions about his ethical probity and thus his fitness to hold such high judicial office.
In this regard the fate of his successor Menzi Simelane provides a telling case study. In October 2012 the Constitutional Court found that the appointment of Simelane was irrational and thus invalid and this hinged in substantial measure on the findings of the Ginwala Inquiry that Simelane’s evidence before it was somewhat economical with the truth. Could the courts, in due course and for similar reasons, not reach the same conclusion with regard to the appointment of Mpshe to the bench?
Myburgh and Moodie have proved that online journalists can compete with specialist investigative teams on newspapers in certain instances. The Daily Maverick simply emphasised that point with Greg Marinovitch’s riveting exposé on Marikana resonating in the subsequent Farlam Commission hearing.
If today is the beginning of the beginning in the Spy Tape saga then it could, with reference to the journalistic sleuthing of Myburgh and Moodie, prove to be the beginning of the end of Mokotedi Mpshe’s tenure on the bench.
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