OPINIONISTA

Brij Maharaj: Willie Hofmeyr has the pedigree for Director of Public Prosecutions

One name worth considering for the position of Director of Public Prosecutions is Willie Hofmeyr, one of four deputies at the prosecuting authority. Hofmeyr has a stack of skills and experiences that, despite some controversy, might make him just the kind of leader this institution needs.

It is now common cause that the Zupta regime celebrated mediocrity and appointed hand-picked minions to facilitate looting of state resources. This was aptly illustrated in the SARS case by Judge Robert Nugent:

The day Mr Moyane took office was a calamity for SARS. Almost immediately, and then continuously for the next 18 months, SARS was thrown into turmoil with tragic consequences for the lives of many people, tragic consequences for the reputation of SARS and tragic consequences for the country at large.”

According to journalist Pieter du Toit, as with the “the disembowelling of the NPA and the Hawks, SARS [rated as one of the world’s leading tax agencies under Pravin Gordhan] had to be similarly contained to ensure that the Zuma State Capture project could flourish. Moyane carried out his mission with aplomb and leaves behind a broken and frightened organisation in disarray”.

Professor William Gumede has argued that most post-colonial African countries have failed economically “because they did not make merit the guiding principle for society… Because of the lack of merit, opportunism became the guiding principle for political party and government appointments, securing government contracts and development projects… It results in incompetence becoming the societal norm”.

The election of Cyril Ramaphosa as president of the ANC and country, albeit on a marginal majority, provides a rare opportunity to reverse this trend. Former US president Bill Clinton, addressing the Discovery Leadership Summit in Johannesburg on 1 November 2018, expressed it more bluntly: “Don’t screw this up.”

Perhaps in an attempt to demonstrate greater transparency and public accountability in an institution that has been mired in controversy, President Ramaphosa has called for nominations to inform his critical decision on the appointment of a new national director of public prosecutions. One name worth considering is Willie Hofmeyr, one of four deputies at the prosecuting authority. Hofmeyr has a stack of skills and experiences that, despite some controversy, might make him just the kind of leader this institution needs.

It is an open secret that Struggle history counts for something in senior state appointments, especially if the candidate is white. In this department Hofmeyr has serious credentials. For his anti-apartheid activism in 1976 he was banned for five years, later imprisoned and kept in solitary confinement for six months. Hofmeyr proved his mettle behind bars, maintaining a hunger strike for 28 days.

As a lawyer, Hofmeyr was part of the ANC core team negotiating the Constitution. He gained a reputation for his ability to work across political divides. Later, as an MP, he played a key role in drafting the anti-corruption laws South Africa so hopefully generated when the rainbow still glittered.

We are in a different country now, trying to emerge from the dark night of kleptocracy. South Africa needs those billions back. What better recommends a new prosecutions head than having set up the Asset Forfeiture Unit (AFU) — a body recognised internationally as an example of anti-corruption best-practice.

The NPA is presently floundering when it comes to holding State Capturers to account. There is a real chance that, if and when the Zondo Commission recommends charges, there will be no real capable follow-through at the NPA with disastrous consequences for accountability. It will be a green flag for a new lot of opportunists to have a go. We need someone with a track record in fighting money-laundering to give direction in getting all these dockets in order.

Hofmeyr also showed significant bravery during the dark years of NPA decline under Shaun Abrahams. Alone among all the deputies at the NPA, he showed his opposition to the trumping up of charges against Pravin Gordhan; something for which Abrahams tried to discipline Hofmeyr.

A frequent and justified refrain these days is to ask senior ANC people why they were so quiet when Zuma wreaked his havoc on South Africa. What were they doing to stop it? Hofmeyr would have a pretty good answer. When Zuma set about to bully Mxolisi Nxasana out of his job for acting against the president’s acolytes, advocates Jiba and Mwerbi, Hofmeyr was the only senior manager to stand with his then embattled boss.

Nxasana was eventually induced to leave and the NPA entered the most perilous part of its history under Shaun Abrahams. Hofmeyr’s grit was again demonstrated as the only person in the NPA to openly take Abrahams on. He did so in dramatic fashion by exposing in court papers how his boss had lied. It came at great cost to his career. Hofmeyr spent the next several months in the career equivalent of the naughty corner.

Indeed, Hofmeyr was arguably one of State Capture’s first victims when he was removed as head of the Special Investigations Unit in November 2011. His crime was obvious. The unit he commanded insisted on investigating people with friends in high places.

The Bosassa case springs to mind. When Hofmeyr obtained a freezing order of R125-million against alleged ANC-fixer Fana Hlongwane, another disgraced NPA head, Menzi Simelane, personally rushed to court to have it lifted. The plucky Hofmeyr has been a thorn in the flesh of two unsuitable chief prosecutors already. This may not be an official “award and achievement” but these experiences give Hofmeyr unrivalled insight into what pockets of the NPA still need cleaning up.

Hofmeyr’s protection of NPA independence has a longer pedigree than just the Zuma years. Perhaps less well known is Hofmeyr’s role in 2008 in protecting his colleague, Gerrie Nel, who was arrested days before disgraced former police chief Jackie Selebi applied for a permanent stay of his prosecution.

It is convenient to forget that the original capturers of the security cluster were those close to former president Thabo Mbeki. They believed that, with the tenacious prosecutor out of the way, their corrupt police chief was safe. But Hofmeyr and others ensured that the case against Selebi was rescued.

For people taking the long view, Hofmeyr has consistently been among those elbowing aside attempts to control prosecution decision-making. If there is to be a new dawn, we need elbows like these.

As a senior manager of many years standing at the NPA, Hofmeyr knows the institution backwards. This is probably the most important quality an NDPP needs — the ability to manage a large and complex organisation, absorbing detail on the run and giving strategic litigation direction. Hofmeyr is not the only competent managerial candidate for the job, but having successfully run the Special Investigating Unit and set up the AFU, there is plenty of evidence of his leadership abilities in this institution.

The one blot on Hofmeyr’s career is the Spy Tapes saga. Shortly after the ANC’s fateful Polokwane conference, tapes came to light exposing how senior prosecutors and Bulelani Ngcuka had essentially conspired about when to charge Jacob Zuma. Hofmeyr (and other lawyers at the NPA) took the view that this irregularity fatally poisoned the chances of a fair trial.

With precious little time before Jacob Zuma’s ascension to the presidency, they made a judgment call recommending that charges against Zuma be dropped. It was a momentous decision. One, it bequeathed Jacob Zuma as president to South Africa. But, two, it avoided a constitutional crisis of proportions it is difficult to appreciate now, when Zuma no longer commands the fanatical support he once did.

If it were soccer match, Hofmeyr was a linesman and the off-side call he made was marginal. The courts have mulled over this decision at their leisure for many years since. Finally, the Supreme Court of Appeal overturned the decision not to prosecute Zuma, ruling that any prejudice arising from the Spy Tapes could be argued before a trial court. Zuma is duly back in the dock.

Sitting back now, after many tides have turned, it is easy to all be legal experts. But the fact is that lawyers err, judges are overturned and bureaucrats are sometimes set aside. This was one such occasion.

Hofmeyr’s judgment call was one shared by many in the legal establishment and almost everyone in Ramaphosa’s cabinet supported it at the time. It can thus hardly be a disqualifying factor for high office. It might seem paradoxical to say so, but Hofmeyr’s exposure to high-stakes legal decision-making and his subsequent chastening may make him the careful protagonist the NPA needs right now as it navigates difficult legal questions going forward.

Hofmeyr was certainly not rewarded for this Spy Tapes decision and not a scintilla of bad faith has ever attached itself to his role. He made a legal call. He accepts that he got it wrong. Indeed, Zuma’s most fervent supporters at the NPA punished Hofmeyr afterwards when he proved as much a stickler for propriety under them as he had been when the Mbeki-ites called the shots.

When the Constitutional Court gave President Ramaphosa 90 days to announce a new NDPP, they unintentionally handed the president a poisoned chalice. When an institution is in such disarray, the difficult, far-reaching decisions that need to be taken seldom engender much love afterwards.

Churchill, who rallied his people so heroically against the Nazi menace, was kicked out of office in peacetime. Willie Hofmeyr has about two years left before retirement. This may indeed make him the perfect clean-up candidate for President Ramaphosa.

The presidentcould make a short-term appointment and comply with the highest court’s directive. As the ultimate insider and survivor, Hofmeyr could usher the NPA through its necessary, but difficult reforms, the fruits of which a new candidate would inherit.

Everyone agrees: President Ramaphosa needs to get this decision right. He needs a chief referee at the NPA. Hofmeyr’s past, even with the single bad game, still arguably recommends the man. Indeed, if one looks at his track record, few better candidates are available for a president seeking an independent, experienced and capable chief prosecutor than Willie Hofmeyr. DM

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