ANALYSIS: Are the Hawks a victim of the rule of the media, supplanting the rule of law?

0
1183

Duduzane Zuma on Thursday night arrived to bury his younger brother Nhlankanipho Vusi Zuma and to be present in an upcoming court appearance, the culpable homicide case related to a motor vehicle accident in 2014. This case is set down for July 12.

Zuma’s arrival we are told was met with a brief detention at the airport after which he was released in the care of his attorney. Already then there was an uproar by some from the media fraternity questioning his release and defining it as preferential treatment. We are also made aware of the simmering tension between police and the specialized unit of the Hawks on the brief detention of Zuma.

Subsequent to this incident, Sunday newspapers lead with an imminent arrest of Duduzane to be actioned by the Hawks on Monday. It is clear the Sunday papers ran this as a major scoop, meaning they have it on reliable information that the Hawks will action an arrest on Monday. We do not yet know the details of the alleged crime except for what we read in the same media reports.

On June 6, Advocate Vuyani Ngalwana in an opinion piece published in The Star cautioned SA with the following observation: “In an environment where uninformed legal commentary monopolizes the public space, the rule of media supplants the rule of law.”

Ngalwana explained the phenomenon of supplanted rule of law at the hand of a number of recent cases. He cited the examples, among others, of “the persecution of former president Jacob Zuma in the media on a charge of which he had been acquitted by a court of law; the praising of former finance minister Pravin Gordhan for ‘winning’ a case he had in fact lost as it was struck off the roll; and the excoriation of Chief Justice Mogoeng for dissenting and characterising the majority’s judgment as judicial overreach in a case in which the media seemed intent on the opposite outcome.”

Ngalwana went on to suggest that we have a more recent example of this rule of the media supplanting the rule of law when the Free State High Court led by Justice Loubsher ruled that the assets of the Gupta family be released from state capture – pun intended – because said the court, there is no reasonable possibility that a confiscation order may be made.

In extending Ngalwana’s observation, can the case be made that such supplanting of the rule of law by the rule of media appears to have potentially influenced, if not directed, the actions of the Hawks?

We ask this since we attempt making sense of the actions of the Hawks in regard to the claimed imminent arrest of Duduzane Zuma. We also do so since Abraham Mashego of the City Press a few weeks ago told us the Hawks are under severe pressure to do something, while there is tension because there is no evidence for a case against Duduzane Zuma.

The herd-mentality of seeking an arrest by any means of an already found guilty Zuma in the court of the media attests a disregard for the law. Ngalwana argues, “It never occurred to any of them that perhaps the judge may have been right in his assessment of the evidence before him, and so came to the only conclusion on that evidence.”

There are three challenging aspects in the Hawks’ behaviour on an imminent arrest as it plays out in the media, and these deserve attention.

Matter of standard or exceptional practice?

Firstly, is it standard and acceptable practice for the Hawks to first inform the media of its imminent intention to arrest anyone? If this is standard practice certainly the Hawks acted in line with their usual acceptable practice and cannot be red-carded for their behaviour in this instance. However, if it’s not standard and acceptable practice in a democratic space, can we accept it then must constitute exceptional behaviour on the part of the Hawks?

In order to appreciate the behaviour of the Hawks, we must reflect on the behaviour of their predecessors the Scorpions. The Hawks appear to continue in that same vein of what the Judge Sisi Khampepe Report highlighted as “Hollywood arrest” Justice Khampepe also warned of media leaks and adverse publicity before criminal suspects appeared in court.

If we can evidence a claim of what the Khampepe report raised as challenging in exceptional behaviour, we must then also ask: is the axis of the Hawks’ behaviour rooted in politics?  Why then would exceptional behaviour in this instance be correct?  Is this exceptional behaviour informed by who is being arrested and what the media has already scripted in public conscience?

Does the means to an end become justified because it has long been propagated as acceptable and correct because it is a Zuma that is in question?

The ‘charge’ emanates from the Jonas claim:

A second challenge with the Hawks’ behaviour in this instance vacillates on what we are told the charge centres on. It is the same media who tell us the Hawks will arrest Duduzane Zuma predicated on the claims of Mcebisi Jonas. Jonas in his brief to the public protector and subsequent audiences claimed among others that at a meeting facilitated by Duduzane, the Gupta brothers (Atul and Ajay) made him several offers. These offerings among others included the opportunity to replace the then-Minister of Finance Pravin Gordhan. Another claim was an offer of R600m to be paid into an account of Jonas’ choice. A subsequent claim made by Jonas was that he was offered R600,000 to take the offer immediately.

The claim of a meeting is not disputed by Duduzane or Fana Hlongwane. It’s the details and content of what transpired at the said meeting that is categorically refuted as preposterous by Zuma, Hlongwane and the Gupta brothers. When the claims of such allegations surfaced the Gupta brothers equally distanced themselves from such. Hence beyond the word of Jonas and the publicly known rebuttals of the abovementioned, there is nothing further public in this regard.

If the media reports are correct for the reason of the imminent arrest, it would then mean a case in this regard was opened by Mcebisi Jonas, which warrants a crime to be investigated and tried in a court.

The charge we are told is borne from the Jonas statement, which at a media level is very sensational and provable but unfortunately in a court of law appears flawed at three levels. 1. Jonas never filed a criminal case. 2. The word of one against the other presents a conflict of views and cannot fit the frame of a prima facie case. 3. Jonas never accused Zuma of making the alleged offers, nor has Jonas ever before accused Hlongwane of making the offers.

Fact is that Jonas has not filed any case against Zuma or the Guptas and has opted to engage this at a political level. We will have to ask, will the Hawks also arrest Fana Hlongwane too, or will they single Duduzane out for maximum political impact?

The problem of a state capture ‘criminal offence’

The third challenge with this imminent arrest is that it comes framed in the claim of state capture evidence. While state capture is a very easily used term in our lexicon since 2016, the reality is that it is yet to be proven. The Deputy Chief Justice Ray Zondo investigation into the State of Capture is yet to unfold. I must again lean on Advocate Ngalwana when he explains the phenomenon of a crime called state capture as that which is a media created claim. Let us hear Ngalwana: “To them that would not because the script had long been written (by then) that the Guptas were guilty of state capture – a ‘criminal offence’ of media invention from the public protector’s report titled the State of Capture, and so everything they own is ‘proceeds of crime’. So, when the judge deviated from that script, either he or the prosecuting team was incompetent. This dangerous phenomenon poses a serious threat to the rule of law.”

. The rule of media proved again present when it found the brief detention of Zuma and his subsequent release as incompetence on the part of the police and Hawks, unleashing a blackmail campaign to have Zuma arrested.

The Hawks’ actions in this imminent arrest cannot be seen in a vacuum but warrants understanding and appreciation against the backdrop of a list of recent bruising defeats when the Asset Forfeiture Unit on three occasions in separate courts failed to make its case to keep what they had deemed as proceeds of a crime. We know that in the case of the Estina Dairy Farm case, the time to file an appeal against the Judge Loubsher findings has expired.

We also know that the Hawks were at pains to inform SA that they have no case against Duduzane Zuma and that no warrant for his arrest was ever made. This was at a time when the then Minister of Police Fikile Mbalula allowed himself to be swayed by the media, to make irresponsible statements on Zuma and the Guptas being fugitives of the SA state.

We also know that the Parliament-led inquiry on Eskom towards its end requested the presence of Duduzane Zuma as well as Atul and Ajay Gupta. They did not attend. We know that Parliament at the time battled to give effect to a summons and was engaging the NPA to realize that matter. Equally so there are those of the legal fraternity that argue it is the right of an individual not to make himself available for a parliamentary inquiry. It can be argued Duduzane Zuma was correct not to avail himself for the parliamentary process which appears to have been a tool to incriminate him.

As we await the soon-to-be-held drama-filled presser of the Hawks on the arrest of Duduzane Zuma. We can’t but seek answers from this institution on its practices and actions as plausibly influenced by the rule of media. The nagging questions that the Hawks must answer remain:

  1. Is the pending arrest of Duduzane Zuma regardless to the flimsiness of the charge constituting an act of self-redemption tangible in public relations stunts, on the part of the Hawks after a litany of bruising defeats?
  2. Did the Hawks officially inform a specific segment of the media community of this imminent arrest, if so why?
  3. Was this standard practice? If not, why the exceptional behaviour?
  4. Are the Hawks not acting under due pressure of the media who long ago found Duduzane guilty of the media invented ‘criminal offense’ of state capture in the court of the media?
  5. If the Hawks had long ago concluded to effect an arrest, why did they not do so since they knew through intelligence when and where Duduzane Zuma was moving around?
  6. What is the case for which Duduzane must answer other than the legally flawed accusation levelled by Mcebisi Jonas, which has no case number as yet?
  7. When was this warrant of arrest formulated and finalized?
  8. Is it normal that a typical claim as in the case of the Mcebisi Jonas’ claim and word weigh so much in weight, despite a crime not being committed?
  9. Why is the same weight not accorded to those who refute the claim? Particularly since no crime emanated from this contested claim?
  10. Is this a means of seeming to do something about state capture, since we were told the Hawks are under severe pressure to arrest as demanded by the president when he was a presidential candidate, Trevor Manuel in his UWC lecture and Pravin Gordhan in his statements on why it’s taking so long for the Hawks to action the arrest warrants?
  11. Are the actions on the part of the Hawks evidencing a special jurisprudence for the name Zuma?

What remains crystal clear is that whenever a Zuma is involved the standard rules simply do not apply? Will we tomorrow see the typical Scorpion inherited actions of what Khampepe deemed a ‘Hollywood style? Is a paraded Duduzane in handcuffs and the media swirling, when the case is not properly made the redemption of the Hawks? Is this political and not legal?

Clyde Ramalaine
Political Commentator and Writer
Chairperson of TMoSA Foundation – The Thinking Masses of SA
PICTURE: Supplied