"Prosecute President Mbeki, Maduna and Ngcuka!"

Judge Willem Heath has engaged in some extrajudicial adventures and a personal crusade against President Mbeki, former Minister of Justice Panuel Maduna and former Director of National Prosecutions Bulelani Ngcuka. Heath has suggested that charges be laid against these three men following the injudicious inferences contained in the judgment passed by Judge Nicholson.

According to Heath, Judge Nicholson made “findings” which were tantamount to prima facie evidence of contraventions of the National Prosecuting Authority (NPA) Act. It is reasonable to expect a person of his intelligence to distinguish between “prima facie evidence” and misguided inferences.

Heath said, “If the behaviour found by Nicholson is not addressed, the application of the principle of the separation of powers will remain at the whim of those who have seemingly been using it most effectively for personal gain.” Heath is correct in attempting to protect the independence of the prosecuting authority; but it should not be driven by a personal vendetta on his part and using unproven allegations as a basis to advance a particular motive.

In order to make sense of Judge Heath’s suggestions regarding the President, Maduna and Ngcuka, it is important to examine his background and the position he has taken on this matter. When judges make public pronouncements on such serious matters, the general public, often uninformed, reach a particular conclusion on the genuine belief in the impartiality of such men of law. It is would therefore be extremely misleading to consume the comments by Judge Heath without making a determination of his objectivity.

Many still have vivid, but perhaps for some, faint memories of Judge Heath as the errant head of the Special Investigating Unit (SIU) in 1996, after his appointment by the former president Nelson Mandela. He was tasked with the investigation into serious malpractices or maladministration in connection with the administration of State institutions, State assets and public money as well as any conduct which may seriously harm the interests of the public.

Heath was involved in a number of investigations that made newspaper headlines, from Sarafina II to the Road Accident Fund. In 2001 there were attempts to include Heath in the investigation of the arms deal, with the blessing of Standing Committee on Public Accounts of Parliament (SCOPA), but President Mbeki resolved not to allow Heath to investigate the arms deal.

In order to make his determination to clip the wings of the renegade judge, President Mbeki relied on submissions by then Minister of Justice Panuel Maduna, the Auditor-General (Shauket Fakie), the Public Protector (Selby Baqwa) and the national director of public prosecutions Bulelani Ngcuka. Can you now see the link?

His colleagues at the Constitutional Court in 2000 had ordered him to vacate his position as head of the SIU, ruling that the SIU was unconstitutional and invalid. Interestingly, the Constitutional Court held that to have a judge performing executive functions, such as Judge Heath was doing, served to corrupt the noble principle of the separation of powers and compromised the independence of the judiciary.

He was at the time even reported to have been accused by Trevor Manuel, then the harshest opponents of the arms deal in the Cabinet, for lying about his achievements — a serious accusation by a cabinet member against a member of the Judiciary. Heath was accused of broadcasting details of his investigations prior to informing those he was investigating or reporting to the president. Sounds familiar, doesn’t it!

His reported insolence and arrogance in believing to be an authority in the functioning of various departments than ministers in charge of them was problematic. According to the NPA, cases referred to it by Heath were often of such “poor quality” that they either had to be reinvestigated or dropped.

Judge Willem Heath has been acting as a legal advisor to Jacob Zuma in his corruption trial. He said, “I agreed to accept a brief as legal counsel to advise him on the merits of the corruption charges which may be brought against him.”

Given this background it is suspicious whether Judge Heath is calling for charges out of genuine concern for the independence of the NPA, whether it is merely sour grapes against men who sealed his fate as head of the SIU, or whether he is pandering to the whims of Malema, Vavi and Nzimande who are intent on some measure of vengeance against those they accuse of conspiring against Jacob Zuma, particularly President Mbeki.

Judge Heath’s utterances sound like pot calling a kettle black!