By Paul M. Ngobeni
The concerted political attacks on Justice Minister Thembi Simelane are emblematic of the cannibalization of the African National Congress and show at the same time that the so-called Government of National Unity (GNU) is truly at the mercy of the racist far-right faction of the GNU, which will continue to oust black officials who do not meet their exact demands or let white supremacy reign supreme.
Not surprisingly, the DA’s Glynnis Breytenbach, who is rumoured to be coveting Simelane’s position, said President Cyril Ramaphosa must take swift action against the Minister.
"We urge the president to stop stalling and take decisive action. While we respect the National Prosecuting Authority (NPA)’s mandate to investigate and decide on any potential prosecution, the president has a duty to act now in the face of what is clearly a blinding conflict of interest," said Breytenbach.
The DA has already proven that it enjoys absolute control over its puppet Ramaphosa and his faction of the ANC through the impeachment of Advocate Mkhwebane and Western Cape Judge President John Hlophe. When it comes to victimising those blacks who have the temerity to stand against the DA’s agenda, the DA disregards due process rights and wants to see lynchings and the law of the jungle being fully implemented in our country. The DA’s brazen attempt to usurp the president’s exclusive power to make cabinet appointments follows a very familiar white supremacist logic – no evidence of wrongdoing is required to fire black officials and only rumours and gossip will suffice.
I hold no briefs for Minister Simelane but her detractors have been weaving a nauseating tapestry of lies about the law and the facts in her case. Simelane’s alleged unpardonable sin is that she has admitted to securing a R575,000 loan from Gundo Wealth Investments – which she says she paid back. Obtaining the loan from this private entity does not qualify as financial misconduct by any stretch of the imagination. Nor does it constitute criminal conduct.
Moreover, at the time of the loan agreement, the Minister of Finance had, in terms of sections 168 and 175, of the Local Government: Municipal Finance Management Act, 2003 and acting with the concurrence of the Minister of Cooperative Governance and Traditional Affairs, made the regulations Municipal Regulations for Financial Misconduct Procedures and Criminal Proceedings as published per GN 430 of 30 May 2014. The Regulations guarantee due process to municipal officials and envisage a bifurcated and separated investigation process by the Disciplinary Board which cannot be usurped or bypassed by the Municipal Council. First, Regulation 5 (1) unambiguously states that: 1) On receiving a report in terms of regulation3(1), if the municipal council, … is satisfied that there is reasonable cause to believe that an act of financial misconduct has been committed, it must within seven days refer the mater to the disciplinary board to conduct a preliminary investigation into the allegation as envisaged in terms of section 171(4)(a) or 172(3)(a) of the Act.” Further, Regulation 5 (2) provides that: “A disciplinary board must conduct a preliminary investigation to determine whether or not the allegation is founded and make a recommendation to the council or board of directors as to whether sufficient grounds exists to warrant a full investigation into the allegation.” There is no allegation that the Minister was subjected to any investigation or offered an opportunity to defend herself while she was employed a Polokwane mayor.
Most important, the Disciplinary Board has the authority to terminate a preliminary investigation if there are no grounds to support the allegations as per regulation 5 (3) of the Regulations which state: “(3) If, during a preliminary investigation, the disciplinary board determines that the allegation is frivolous, vexatious, speculative or obviously unfounded, the investigation must be terminated.”
The regulations state clearly that a “municipal council must establish a disciplinary board to investigate allegations of financial misconduct in the municipality, and to monitor the institution of disciplinary proceedings against an alleged transgressor.” It states further that: “A disciplinary board is an independent advisory body that assist the Council with the investigation of allegations of financial misconduct, and provide recommendations on further steps to be taken regarding disciplinary proceedings, or any other relevant steps to be taken.”
Here there is no evidence that the Polokwane Council ever took a resolution to institute a full investigation into alleged financial misconduct against Simelane as the Mayor. It is ludicrous for her detractors to now use the notoriety of the VBS as an instrument to dislodge her from her cabinet position without affording her the rights available to accused officials under the Regulations. Regulation 5(4) sets forth the conditions under which the municipal council must undertake a full investigation. The jurisdictional facts that must exist before a municipality launches a formal full investigation are that the disciplinary board must during its preliminary investigation first determine “that the allegation is founded” and only then may a full investigation be conducted in accordance with Regulation 5(4). In this case, there was no prior investigation by the board. expressly stated that there were no substantial grounds to warrant a further investigation regarding the matter.
In the same vein, the statutory preconditions for investigation by the Provincial or National Treasury do not exist. No disciplinary board has found financial misconduct by then mayor Simelane. Even if the Board had so determined, a full investigation “must be conducted by … (b) the provincial treasury or the National Treasury, but only if the conditions specified in regulation 19 apply.” The latter regulation makes it abundantly clear that a full investigation by the Provincial or National Treasury may only if “a municipality, designated official or municipal entity fails to investigate an allegation of financial misconduct or financial offence.” In this case, the municipality had not failed to investigate any allegations of financial misconduct as there were none made during Simelane’s tenure as the mayor – it activated the preliminary investigation by the board which issued a report clearly stating that the allegations were not founded. The conditions for proceeding to a full investigation provided for in the regulations did not exist. A post-hoc investigation informed by political gamesmanship is contrary to the rule of law.
The DA and its devious officials know that Regulation 19 allows intervention in investigations and disciplinary matters subject to strict conditions. Neither the national nor a provincial government may usurp the functions of a municipality except temporarily and in compliance with strict procedures. Section 139 of the Constitution requires an objective state of affairs, not a mere opinion by the decision maker that such a state of affairs exists. What law allows the City of Polokwane to now open an investigation against Simelane long after her tenure as mayor, and for a personal loan she duly paid?
Another absurd allegation against Simelane is that during her time as the mayor of Polokwane, Simelane disregarded a notice from National Treasury and invested hundreds of millions of the municipality's money in VBS. There was a municipal manager and Chief Financial Officer at the time that the investments were made on behalf of the Polokwane local government. There is no evidence that Simelane was aware that such investments were made in contravention of section 7 (3) (b) of the Municipal Finance Management Act (The MFMA)[3], which prohibits municipalities from making investments in banks which were not registered in terms of the Banks Act, 1990. VBS is obviously not registered in terms of the Banks Act. It is opportunistic for her detractors to ignore the fact that the Limpopo Provincial government waited until the end of February 2018 to issue the Provincial Treasury MFMA Circular No.4 (Banking and Investments dated 27 February 2018, which served to guide municipalities and associated entities regarding the opening of bank accounts and investments with financial institutions in line with the MFMA. At the time of Simelane’s loan two years prior to that there were no publicized suspicions around VBS. Remember that the forensic investigation into VBS initiated by the South African Reserve Bank was completed by a private law firm around October 2018 more than two years after the Simelane loan.
Even assuming the investment decision was attributable to Simelane it is clear that she acted with the concurrence of her municipal council – the Municipal Manager had complied with her obligations to furnish monthly reports detailing the deposits made, which would also be reflected in the minutes of the Municipal Council as having been accepted. So why subject her to the after-the fact witch-hunting? The Polokwane Council had also submitted annual reports to National Treasury reflecting those investments, which were also accepted. Equally so, these deposits and investments were reflected in the Council’s annual financial statements, subjected to audits by both the Council’s internal and external auditors, who had not commented on those investments. The National Treasury also failed to appreciate that there was anything wrong with those investments. The apartheid-inspired DA is a party of constitutional scammers that can twist the law to target individuals without any basis.
The other issue being exploited in a very deceptive manner is the false allegation that the Minister Simelane is blocking the NPA access to the data of the Zondo State Capture Commission. She views these as malicious, unwarranted, baseless and unfair to her. “I have met with the National Director of Public Prosecution after being entrusted with the responsibility as the Minister of Justice and Constitutional Development to take the NPA into my confidence that I am going to give the authority and other law enforcement agencies my support on any matter,” remarked Minister Simelane.
The widely reported media allegations that the Minister is blocking access to the Zondo Commission database are part of the DA propaganda narrative concocted to get Simelane fired. The long-standing problems of access to Zondo Commission material precedes the appointment of Simelane as a Minister. I recall that in November 2019, NDPP Shamila Batohi said while there was good cooperation with the inquiry chaired by DCJ Zondo, accessing information was difficult. She stated: “The Zondo commission cannot share [information] with us unless it has been made public or if the chairperson has otherwise authorised the release of information, and obviously there’s an unwillingness to do that because there’s much to be gained from people coming forward and giving evidence. We are in dialogue on how to manage challenges on both sides of the fence.”
In response to the importuning of the NPA President Ramaphosa published in a gazette notice of 28 July 2020 an amendment which effectively allows South Africa’s law enforcement agencies to have access to information gathered by the state capture commission of inquiry, making it easier to build cases against implicated individuals. The gazette notice introduces sub-regulation 5 in regulation 11 which reads: “Sub-regulation (1) (2) and (3) shall not apply to the sharing of information, records or documents with any state law enforcement agency.”
This raises very serious questions about whether Ramaphosa has effectively forced DCJ Zondo to operate as an appendage to the NPA’s criminal prosecution and investigations which appears to be unlawful and unconstitutional. Simelane is likely to be a victim of the political manipulations and racist smear campaign by those struggling very hard to capture the Justice Ministry. Her enemies know the weakness of puppet President Ramaphosa and they are digging in their heels to get her fired and replaced by the DA's Glynnis Breytenbach.
* Paul M. Ngobeni is a legal analyst.
** The views expressed do not necessarily reflect the views of IOL or Independent Media.