'I invite you to produce the evidence of the very serious allegation that I may have been bribed'

DEAR Advocate Heath, On many occasions I have remained silent when outrageous and scandalous allegations relating to my term as National Director of Public Prosecutions (NDPP) were levelled against me. I deemed it prudent to let such issues be dealt with by the National Prosecuting Authority (NPA) as it deemed fit.

However, because the source of the latest allegations is someone who was once a member of our respected judiciary, and is considered by a section of our society to be a crusading "corruption buster", I consider it necessary to respond.

By not responding in such circumstances, there exists a danger that the public may place credence in your allegations, clothed as they are with the imprimatur of the office of head of the Special Investigating Unit (SIU).

Also, as you are a former judge of the high court, the public has every reason to believe that your statements will not be reckless, unethical and unsubstantiated.

It is also because your interview published last Sunday is so scandalous and lacking any ethical content that I have been reluctantly compelled to respond by means of an open letter.

The allegations you make against me personally, and the office of the NDPP during my tenure, are very serious. They include the scurrilous charge that I allowed myself and the NPA to be dictated to by the former president [Thabo Mbeki] in the exercise of my authority, to institute corruption and rape charges against President Jacob Zuma.

Evidence of such conduct as you allege on my part would result in a criminal conviction. One wonders why, if you have such evidence, you have not seen fit to formally lay charges against me in all these years. The reason, in my considered view, is that these allegations are as false as they are disingenuous.

You suggest that as a result of your "exclusion" from the investigation of the strategic defence procurement package, the joint investigation conducted at the request of a committee of parliament by the NPA, the auditor-general and the public protector lacked integrity.

Save and except that you did not personally participate in the investigation, it is unclear why these constitutional institutions are visited with this insult.

If you had any evidence of wrongdoing that came "too close to certain people", why did you not present such evidence to the joint investigation?

Could it be that you withheld evidence of wrongdoing simply because you were sulking at what you misguidedly perceived as "exclusion"?

It is a matter of record that your term of office as head of the SIU terminated as a result of a decision of the Constitutional Court, which correctly found that it was undesirable that a full-time judge should be engaged in investigating matters of the nature of those the SIU is charged with in terms of its founding legislation.

An unbiased reading of the decision will show that it is intended to protect the integrity of judicial office whose main constitutional mandate is to dispense justice on a day-to-day basis, and avoid the danger of our judges being seen as an extension of the executive. There is no question that the investigative functions of the SIU are typically those of policemen and related functionaries.

It is understandable that you were frustrated that you could not continue in office as a result. But that is the nature of court decisions, and as a former judge and advocate I would have thought it would be an easy matter to understand this.

The allegation that I was "instigated" to prosecute President Zuma is demonstrably false and is a gratuitous insult to my person and the office of the NPA. It is rejected with contempt. The undisputed facts around this matter are to the contrary: I declined to institute any charges of corruption against President Zuma. I stand by that decision. That I was in any way involved in the decision to institute rape charges against President Zuma is equally astounding, as I was at the time long out of office.

One, however, understands that a man so bitter at being "excluded" from office and, being rendered a pauper as a result of such "exclusion", would be blind to the facts and be inclined to lash out at all those who he misguidedly perceives to have conspired to his prejudice.

Therefore, now that you have been restored to the position you have consistently believed is your God-given right to hold, you triumphantly return to take revenge against me, my wife, and former president Mbeki, by resorting to the perpetuation of slander, innuendo and defamation. That there is no basis for the allegations matters not to you, as your mantra appears to be that such conduct is justified by your objective of vilification and destruction of those you see as your enemies, real or imagined.

The latter modus operandi is again in keeping with your style. In the interview in which you announced your triumphant return as SIU head, you unashamedly state that you traipsed to former president Mbeki's office to "whisper" in his ear that you had information of wrongdoing relating to the arms deal.

From this "confession" it becomes obvious you had been involved in some preliminary investigative work on the arms deal, from which you would have gathered the need for a proclamation to be issued by the president authorising an investigation. The question that must occupy the public is on whose authority such a preliminary investigation was conducted?

I ask this question because it is nowhere authorised in the Special Investigating Units and Special Tribunals Act for the head of the SIU to unilaterally decide to initiate an investigation extraneous to the mandates of an existing investigation.

Parliament has in its wisdom seen it fit to grant the power to institute an investigation, and to decide who heads the SIU, to the president and to him alone. That is still the position. It is therefore something to remember in the course of your triumphant ride into town, that it is not a good thing to arrogate to yourself the decision to conduct any investigation that you deem to be necessary in the public interest.

Forgetting this aspect may lead to you falling hard from your high horse once again, and lead to another round of finger-pointing and slander from you. Our public discourse on the serious matter of corruption surely deserves to be spared such a spectacle, you will hopefully agree.

As a man of professed integrity, known for your dedication to the eradication of the scourge of corruption that is threatening to destroy the very fabric of our democracy, I invite you to produce the evidence of the very serious allegation that I may have been bribed to abuse my office. The same invitation is extended regarding my wife, the former deputy president of the republic.

You will, I trust, not let our democracy down in this regard. There is now no more reason for you to sulk and withhold such evidence. I also hope you will be willing to take the witness stand, testify on oath regarding any such evidence as you may have and subject yourself to an examination of the truthfulness of your allegations.

I await a clear response and reserve all my rights regarding the allegations you made against me.

Yours sincerely,

Bulelani Ngcuka