President Jacob Zuma’s abrupt decision to appoint Willem Heath to head the Special Investigating Unit (SIU) cannot be divorced from the judge’s partisan history over the past decade.
Since he left the unit in 2001 he has hitched his fortunes to the anti-Thabo Mbeki camp, first by working for mining magnate Brett Kebble and then by adopting Zuma’s cause.
Mbeki made an enemy of Heath when the former president intervened to block the SIU’s involvement in the initial investigation of the arms deal. Former president Nelson Mandela appointed the judge to head the Heath Commission of Inquiry into maladministration and corruption in the Eastern Cape in 1995. The SIU, the legislation of which Heath helped to shape, grew out of that.
Key to the unit’s functioning is that it secures repayment for abuses of state expenditure based on a civil action and not a criminal charge. It needs to prove its claims on a “balance of probabilities” and not “beyond reasonable doubt”, making it a powerful anti-corruption tool, given that graft is often hard to prove. It may also apply to cancel state contracts awarded corruptly.
In light of these powers, the recommendation by parliamentary watchdog Scopa in 2000 that the SIU form part of a joint investigation team to probe the arms deal profoundly threatened the procurement process.
Evidence suggests that it led to the ANC disbanding the committee and Mbeki ejecting Heath from the SIU.
The Constitutional Court had ruled that his role in the unit was inappropriate to his position as a seconded judge. Mbeki declined to discharge Heath as a judge, forcing him to resign as SIU head in July 2001.
Heath then set up Heath Executive Consultants, a firm offering legal advice and forensic investigation, but his most high-profile clients were those engaged in a protracted legal, political and media war with Mbeki and former prosecution boss Bulelani Ngcuka.
First came Kebble. Heath intervened in the criminal case against Brett Kebble’s father, Roger, and took particular aim at the role played by the private security company Associated Intelligence Network.
Displaced from the leadership of mining company Durban Roodepoort Deep, the Kebbles were locked in a protracted feud with the company’s new chief executive, Mark Wellesley-Wood.
He engaged the security company and its investigations led to Roger’s provisional arrest for fraud — charges that were later withdrawn.
Brett perceived — and publicly portrayed — the investigation of his family as driven by the financial and political imperatives of Mbeki’s backers and allies.
Heath became an important intermediary in Kebble’s bid to lobby for this view and protect his back with former police commissioner Jackie Selebi, the National Prosecuting Authority (NPA) and the South African Revenue Service.
The former judge used the echo of his judicial imprimatur to issue ringing declarations of innocence on his clients’ behalf — a service he would repeat for Zuma.
Following Brett’s murder a forensic investigation into his company, JCI, reportedly revealed that Heath’s firm received payments of more than R18.5-million from it in just more than three years.
Some of that money appears to have been channelled through Heath’s trust account to make payments to third parties, including former Associated Intelligence Network and Durban Roodepoort Deep employees who provided Kebble with evidence against their erstwhile employers.
When Zuma was charged with corruption in 2005 Heath announced that Zuma had asked him to “advise him on the merits of the case against him”.
He became part of the “brains trust” that advised both Zuma and later, the ANC on how to counter the charges and was particularly effective as a “legal commentator” in Zuma’s corner.
When Zuma was charged, Heath declared: “I reiterate my view that it was unfair and may well be prejudicial that Zuma was not prosecuted with Shaik.”
When the NPA decided to appeal against Judge Chris Nicholson’s 2008 ruling that the corruption charges against Zuma were unlawful, Heath was voluble, saying: “The NPA, represented by Billy Downer SC and Wim Trengove SC in their battle against Zuma, has been given a long overdue chastising for their maverick behaviour —”
Heath called the appeal “bizarre”, saying the NPA “soldier on for a cause which can only be their own”.
The Nicholson judgment was, however, overturned on appeal, only for the NPA to withdraw charges against Zuma in 2009.
This followed the leaking of intercepted conversations showing that Scorpions boss Leonard McCarthy and Ngcuka — by then out of the NPA — had discussed the Zuma case in inappropriate terms.
Heath was again unequivocal in his criticism, saying that then-prosecutions boss Mokotedi Mpshe could have made no other decision.
“Mpshe disclosed that there was ulterior purpose [behind the decision to indict Zuma]. If it’s done with ulterior purpose, it’s an illegality, not a technicality.”
But that clashed with the view of the Supreme Court of Appeal, which held that an improper motive did not, by itself, invalidate a prosecution.
At it again
This week he was at it again, telling the Star: “As far as President Zuma is concerned — I was convinced there was no evidence against him and that it was actually a prosecution that was driven by tainted evidence.”
Heath has now been returned to his powerful SIU position — just as a commission of inquiry appointed by Zuma is gearing up to take a much closer look at the arms deal that cost him his job in the first place.
For Heath, it must seem like poetic justice. For those outside the Zuma camp, it must seem like the most prosaic manipulation.
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