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“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!

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15 Comments

  1. Siphiwo Qangani with kangaroos Siphiwo Qangani with kangaroos 20 September 2008

    Sentletse

    “Judge Heath’s utterances sound like pot calling a kettle black!”
    Ok, what if we turn things around:

    Then therefore, Pierre de Vos’s utterances sound like a snail calling a turtle static.

    Or

    Sentletse’s utterances sound more like an empty vessel which will always make most noise.

    Oops! my response is flagged yet again…Thanks Sentletse, for openness of diverse views.

  2. Winnie Winnie 20 September 2008

    Hey you mellow today! What happened, the wife did not come home last night night? Any ways this is South Africa……. instead of the truth, its all smoke and mirrors.

  3. Kit Kit 20 September 2008

    Turning on Heath as the errant AntiMbeki does not change the fact that this has become a losing battle for you to fight, Sentletse. I fear that the end of a particular road has surely arrived and the fork at the interchange provides new and important decisions to be made, few of which involve Judge Heath in any capacity fortunately.

    However, the errant one-time head of the unconstitutional SIU is no more at fault surely than the errant Minister of Health, who not only was issued with a court order to begin treating patients with ARVs (as merely one example of such unconstitutional behaviour) but then went on to ignore the court order for some time, apparently with the clear support of President Mbeki in this regard.

    Unfortunately the charges of acting unconstitutionally, holding to questionable ethics and supporting the ‘wrong side’ are not restricted to Judge Heath. Many others whose names are frequently prefixed with ‘Honourable’ likewise fail the oh-so-stringent test that you set out.

    To point out one man’s failings while studiously avoiding another’s is, as always, disingenuous. It in no way excuses either, although it is indeed a common smokescreen tool.

  4. Dante Dante 20 September 2008

    You sound like a black calling a kettle a pot.

  5. Dave Dave 20 September 2008

    Oh give it a break Sentletse! Are you the self appointed resident spammer on Thought Leader??? In the last few weeks you seem to be the most prolific contributor yet your ratings are consistently in the 1s and 2s. There’s a message in there.

  6. Lebohang Lebohang 20 September 2008

    I guess the count down is now over. It seems like day javu, tasting one’s own medicine. With Heath being a legal person, it is quite obvious that between “recalling” and prosecution he would naturally go for the latter, though I personally think losing power is painful enough for the fallen intellectual native pipe smoker.

    I feel your pain Sentletse and the likes of XNM.

  7. Sentletse Diakanyo Sentletse Diakanyo Post author | 21 September 2008

    DAVE, it is important to note that I’m not on a popularity contest. I express my opinions not with any intention to elicit applause nor derision; but rather for us to explore the veracity of such varied assertions.

  8. nzs nzs 21 September 2008

    Sentlentse,

    Judge Willem Heath obviously has his own agenda with the latter call. The judge is understandably bitter, having been torpedoed in his quest (or ambition, if you will) for making a name for himself through the-then SIU. His pronouncements on making himself available for the legal briefing on the buffoonery polygamist’s legal woes, as you correctly point out, needed to be taken and understood as representative of the bitterness from which the man (Heath) has yet to recover.
    Even his latest call should be seen as an attention-seeking, self-serving gimmick.

    On another note (regarding the recall of President Mbeki from office), let me say one thing or two:
    If the party (ANC) that mandated Mbeki to lead the country – on the basis of the previous electoral victory – decides to recall him from office, that must be accepted as a party decision. Admittedly, given that Mbeki was not just a party leader in Government, but a head of state, this without doubt has serious ramifications for the political stability of the country. I guess that if there are people who regard this as a move by the ANC to settle its own (internally driven) political scores against some of their own, they have that democratically enshrined right to exercise their votes in the next elections in accordance with what they think would be best for the country. As others have already mentioned, only a breakaway faction from the ANC (as already reported by today’s Sunday Times) – if this ever came to fruition – would form a solid opposition or serious challenge to the ANC. It can’t get any more interesting that this. We wait and see………..

    The good thing is that Mbeki has communicated he would oblige by the party’s decision (conditional upon the constitutional procedures being correctly applied). This then leaves the country in a relatively stable political climate, where the voters can, if the atmosphere still prevail, exercise their democratic right to endorse or reject the ANC decision to recall President Mbeki from Office.

  9. amused reader amused reader 21 September 2008

    For once, NZS, i agree!

    Interesting times indeed, and given the possibility of a split in the ANC, and the (vague) possibility thereafter for multi-party democracy, not without hope.

  10. BLACKLISTED DICTATOR/GORILLAMOVEMENT BLACKLISTED DICTATOR/GORILLAMOVEMENT 21 September 2008

    Sentletse,

    Are these judges smoking Durban poison? First Nicholson and now Heath!

    What chance a new party emerging? Any idea who might decide to lead it?
    ( I have my doubts whether Mbeki would get involved as he seems loyal to The ANC.)

  11. BLACKLISTED DICTATOR/GORILLAMOVEMENT BLACKLISTED DICTATOR/GORILLAMOVEMENT 21 September 2008

    I wonder whether The NPA will now drop their appeal. What happens if The NPA decides to re-charge Zuma?

  12. Mike A Mike A 22 September 2008

    One should remember that Mr Heath was ditched without the full service benefits of a proper retirement, and so has personal reason to be bitter.

    However, the irony is that he moaned about being removed from an investigation into arms deal corruption, and has “sold” himself to help an accused in that same matter.

  13. Percentage Percentage 22 September 2008

    This judges are wants to be politicians to be honest.

  14. AntonS AntonS 23 September 2008

    For me any human being who allows themselves to be called “Your Honour”, “Your Worship”,”Your Excellency”, “Reverend”, etc has some serious character flaws.

    How the flip did these titles originate and who on earth decided to give them enough reverence to take them seriously and institutionalize them into a formal judicial system ?

    Judge is probably OK but is he still “Judge” Heath even though he advises in the role of a private citizen, making apparent errors of judgment ?

    Let us give more descriptive titles to people of prominence, not necessarily what they want but what they need. For example there was a young king in Europe who was named Eric the Unready by his subjects. Now that is much more descriptive !

  15. Lyndall Beddy Lyndall Beddy 23 September 2008

    Judges Heath, Erasmus and Hlope all got embroiled in politics – which is NOT on for a judge.

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