News that Mokotedi “Kokkie” Mpshe plagiarised a decision of a Hong Kong court that was later overturned on appeal when he tried to justify his decision to drop charges against Mr Jacob Zuma, is of course highly embarrasing. But does it have any legal significance? And what does this say about the NPA – which is constitutionally required to act without fear, fabvour or prejudice – and ít integỉty and independence?
I, for one, was not surprised by this news. The weird string of cases from the House of Lords mentioned in the Mpshe document, seemingly strung together without much attempt at logic or reason, always struck me as odd. South Africa has a written Constitution and the NPA has a legal duty to follow our own prosecution policy when it decides to continue a prosecution or drop charges against an accused despite there being a winnable case against the accused. The Hong Kong court’s views on this issue was therefore allways going to be legally of little value.
And as the legally binding prosecution policy makes clear, sometimes the NPA will have a duty to prosecute no matter what the circumstances might be. This will depend on the seriousness of the charges, the effect of the kind of crime on the morale and well-being of the nation and whether the dropping of charges would send a signal to the public that would make them lose trust in the criminal justice system.
The plagiarised sections of the NPA decision were therefore always – to my mind – legally utterly irrelevant. These were the bells and whistles used by Mpshe to justify what seemed like a pretty unjustifiable decision – at least from a legal perspective. But it does seem to destroy the little credibility Mpshe had left before he took thí leap over the abbyss.
Maybe it is at this point good to recall what happened when then President Thabo Mbeki suspended Vusi Pikoli and “Kokkie” Mpshe was appointed as acting head of the NPA. Remember, Pikoli had obtained a warrant for the arrest of the Police Commisioner as well for a search and siezure of his premises and the then President really was not amused and wanted Pikoli to stop (or at least wait with) the arrest.
The same night Mbeki suspended Pikoli, and newly appointed Mpshe himself drove to the magistrate to have the arrest warrant overturned and sent someone else to have the search and siezure warrants overturned (or it might have been the other way around?). At the Ginwala Commission it transpired that Presidential adviser, Mojanku Gumbi, and Director General of Justice, Mendi Simelane, helped draft the documents to have these warrants overturned.
But when Debra Patta asked Mpshe a few days later if he had gone to the judge to overturn the warrants, he denied that he had done so. That was because he had actually gone to a magistrate to overturn the arrest warrant and he could mislead Patta (and the nation) without actually telling a bare-faced lie. His underling had gone to the judge and was not succesful in his bid to have the other warrant overturned.
It is only a fool that will think he did this without any interference from the Presidency and/or the government. Why else would Gumbi and Simelani help with the drafting of the papers? Why else was Pikoli suspended?
Seems to me it was not only the letter written by Simelane and then signed by Justice Minister, Brigitte Mabandla, to Pikoli instructing him not to proceed with the execution of the arrest and search warrants against Selebi, that could possibly have constituted criminal interference with the NPA in contravention of the NPA Act. Someone at the Presidency may also have to be investigated and may then very well have to be charged with this criminal offense.
Mpshe has therefore demonstrated in the past that he does not have exactly the same – correct – view on the independence of the NPA as Vusi Pikoli and that he definitely does not have the backbone of Pikoli either. When Mpshe then said that the decision to drop charges against Mr Zuma was made under time pressure, and that there was interference in the timing of laying the charges, the alarm bells went off.
After all, Mpshe was supposed to have made the decision on when to charge Zuma and now he was blaming others for interfering with the timing of the decision he had claimed to have made himself. Moreover, Mr Zuma’s application for a permanent stay of prosecution was only to be heard in August, so what was the time pressure Mpshe spoke about? Could the time pressure relate to the looming election and perhaps to some informal deal struck with the ANC bigwigs to drop charges before the election?
This suspicion is enhanced by the fact that Mpshe had invited Mr Zuma to make representations to him about his case, despite the fact that the Supreme Court of Appeal had found that there was no such legal duty on the NPA and the case was still under consideration by the Constitutional Court. Why did Mpshe suddenly invite Zuma to make representations – even though he had no duty to do so? Was it suggested to him that this was a way of securing his career advancement? When and how was this decision taken? Who “engaged” Mpshe on behalf ò Zuma before this decision was taken?
In a case reviewing the decision of the NPA answers would have to be found for these perplexing questions. One need not be a conspiracy theorist to suspect that Mpshe had buckled under pressure from Zuma or someone close to him and that a decision to drop the charges was then made before any of the evidence of the alleged interference was ever presented to him. Could it be that a reason had to be found for this outrageous decision, so the representations were made and the reasons cooked up after the fact?
I suspect that because the decision to drop charges met with stern resistance from the lawyers within the NPA, the reasons provided for the dropping of charges were narrowly tailored to placate these lawyers who knew they had a winnable case. So flimsy reasons had to be cobbled together and this has now completely undermined the credibility of the NPA and opened it up for a review of the decision.
If the NPA had merely said that after receiving representations from Zuma it had decided there was no winnable case against him, that would have been the end of the matter. But because the lawyers said they would not agree to such a statement, Mpshe had to steal some phrases from an overturned decision in that bastion of democracy, Hong Kong, to justify an essentially predeterimined outcome.
I sincerely hope I am wrong. But at this point the ball is in Mpshe’s court to demonstrate why we should have any trust in his credibility. Sadly the credibility of the NPA has also further suffered in the process. Which two-bit crook with money now charged with a crime is not going to claim that the NPA conspired against him or her?
The only way to restore some credibility to the NPA is for Vusi Pikoli to be reinstated. Seems he was the only political appointee who stood his ground against interference from the politicians, the only mad with some principles. Which obviously cost him his job. But then again, as Pikoli has learnt so bitterly: One cannot afford principles if one wants to remain in favour with the present ANC crowd.
Still it is still sad to see that the academic and “constitutional expert” accusing others of plagiarism when he verbatim quotes the NPA “prosecution policy” on his blog but provides no link to the original document or any reference to a publication.
That is correct Pierre – I’m still waiting for some kind of reference/source to what you claim is the NPA “prospection policy” and that you cut-and-paste at http://constitutionallyspeaking.co.za/?p=933
“This suspicion is enhanced by the fact that Mpshe had invited Mr Zuma to make representations to him about his case, despite the fact that the Supreme Court of Appeal had found that there was no such legal duty on the NPA and the case was still under consideration by the Constitutional Court. Why did Mpshe suddenly invite Zuma to make representations – even though he had no duty to do so?”
Fairness in the light of all the “unsubstantiated” claims by “conspiracy theorists” that the Scorpions/NPA was conducting a politically motivated witch hunt against some “enemies of the state” including but not limited to Jacob Zuma ? The fact that a large section of the the public (or is that sheep ?) has democratically JZ as the new president of the ANC – a little thing called “public interest” ?
correction: “has democratically elected JZ as the new president of the ANC”
The NPA has claimed that the failure to mention or cite the Hong Kong case was an “oversight”. This cannot be true. We are dealing with advocates here, whose whole job is to argue cases in the High Court. They knew that they were dealing with a case, and the other cases they mentioned were cited.
They were not relying on the case in the conventional sense – they clearly found a line of reasoning and argument that favoured a stay of prosecution, and then decided to use it. But it was used as if this was their own reasoning – ones discusses a case, quoting sections, and then one argues from that. The argument presented by the NPA as their own was in fact directly from the Hong Kong case.
It seems clear that te NPA did not expect anyone to find this case, let alone the fact that the judgment had been overturned (although perhaps they did not know that).
ozoneblue // Apr 16, 2009 at 7:29 am
I’m sorry, but even i, as a non-legal person, am able to differentiate between blogging (engaging a group of about 200 people) and one of the highest courts in our country (affecting the lives of about 48 mil. people and observed round the world) …
What an idiot!!
I think lawyers should go on a strike to be honest with you against the abuse of political pressure.
Politics should never put justice under pressure or interfer with the process of Justice.
Ozoneblue:
The academic here makes it very clear that the NPA prosecution policy was not written by himself. If you’ve ever studied at a tertiary institute, then you’d know that plagiarism means presenting someone else’s ideas as your own without indicating that these ideas are not your own. The referencing does not need to be explicit unless you were writing an academic piece.
You will also note that the prof linked you to the NPA prosecution policy in pdf. What’s the problem? Even if the prof did commit blatant plagiarism, how does it absolve Mpshe? Oh, I see. Same way that others being guilty means Zuma isn’t guilty.
Mpshe’s ruling does not state explicitly or implicitly that Mpshe googled the ruling and got it from a Hong Kong ruling. This is plagiarism. If Mpshe noted that his ruling was based on the Hong Kong ruling, it would’ve been sufficient. He would not have had to link to that ruling explicitly.
I disagree with the prof on Zuma’s representations. Zuma has the right to make representations and the onus is on Zuma to make representations (the way I understand it). Therefore, Zuma merely has to indicate that he wants to make representations and then has to be afforded the opportunity to do so. His representations are thus not a result of Mpshe’s invitation. His representations are however not required.
Another correction: a large segment of the public has not elected Jacob Zuma. Zuma was elected president of the ANC by an internal election. He has not been elected democratically by a large segment of the public any more than a school prefect is elected democratically.
See what Senior Counsel Wim Trengrove has to say
http://www.news24.com/News24/South_Africa/News/0,,2-7-1442_2502016,00.html
Garg Unzola // Apr 16, 2009 at 8:30 am
“He has not been elected democratically by a large segment of the public any more than a school prefect is elected democratically.”
I taught at a school where for a period of four years the prefects/councillors were elected absolutely democratically. I know because I was involved in the counting of the votes all this time and the results were honestly reflected in the Councillors appointed.
Garg and Chris MCDANIEL
Mark my words Zum a has been elected by the majority of our country’s citizens in Polokwane the more you deny this the more you are setting yourself up for another dissappointment after April 22, and Pieere stop talking on behalf of the Majority, because the majority will vote Zuma!
Mcdaniel, if you say lawyers should go on strike you mean racist white laywers and not the BLA and myself, ne?
Um, no. After the 22 April elections, the ruling party is elected. We have a representational democracy and we do not elect our president directly at all. The ruling party appoints the president. The public does not vote directly for the president at any point.
The BLA should also go on strike if they’re more concerned about the L part than the B part.
Prof,
Could it be that once one has gone against the advice of the Brains Trust in his office, he is left to his own devices? With the result that the half-baked statement in itself reflects on the thinking process followed.
It would have been helpful for Adv Mpshe to read deeper into Hong Kong law regarding prosecutorial discretion. According to Halsbury’s Laws of Hong Kong, Vol 9 (2002) Reissue) para 130.627:
“The decision not to prosecute is suceptible, in very narrow circumstances, to judicial review but such intervention would only be considered where it is demonstrated that (1) the decision was the result of an unlawful prosecution policy; (2) the decision ignored established policy; or (3) the decision was perverse.”
@ozoneblue// Apr 16, 2009 at 7:29 am
Pierre has previously provided the link to the prosecution policy, but about ftwo minutes on google gave me this:
http://us-cdn.creamermedia.co.za/assets/articles/attachments/02475_npaprosecutionpolicy.pdf
Or maybe you were just too lazy too l;ook for yourself?
Thanks but no thanks Mouse, Trengove’s article is delusional. When he talks of public interest, what does he mean, is he refewrring to minority’s point of view or to our point of view,that is the majority? We are happy political persecution of our pRESIDENT to be has been halted in time to enable him to be the State President!
Wim Trengove should speak for himself, the Prof. and other white racists in the DA and not us,for us public interest has been well served in dropping the flimsy Zuma charges!
Please excuse the typos. My fingers outran my brain.
Grag, but we already know who the face of that party is, i.e is Zuma, so what you say proves nothing!
Mdu // Apr 16, 2009 at 8:55 am
Yes Mdu i want all white racist lawyers in south africa who belong to the KKK and Neo Nazi’s and the Aurion Brotherhood to go on strike against black political pressure on a black prosecutor.
Can I just ask what planet do you come from….you do know im a yank and not polluted by your warp sense of racism? go get a reality check please..or go join your cookie body ozone blue and go see a shrink…..you clearly have got issues about being black.
and Garg is 100% correct in saying its an internal voting that you guys did electing Zuma as president of the ANC, my friends here didnt vote for that, because they not an ANC card member.
Please dont bring race into this issue this is a out the compass of law, stick to this or go bake ANC cupcakes
Political pressure by any party on the process of justice is a rape of the law and is FAKE law it is hollow and I say all lawyers white black colored indian and chinies ( in no alphabetical order – incase you think me putting white first im no being racist) should go on strike and actually show law is more powerful than politics dont fuck with us
Sorry, I meant Garg.
Mdu // Apr 16, 2009 at 9:13 am
So – the majority’s views equals ‘law’. How perverse!
Garg Unzola @ 8:30 am
I did not accuse the prof of committing plagiarism – another form of academic fraud is to falsely attribute a citation to a source, making logical deductions form those and then not suppling the original reference. So after I asked a few times he did provide a link to a pdf dealing mostly with amendments to the NPA prospection policy in dealing with TRC related protections.
Going back to the section of the prospection policy he quoted from in the pdf note the selective quoting of that section – the first sentence being omitted:
“Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of a conviction, a prosecution should normally follow, unless public interest demands otherwise.”
Then inside the the section that was quoted you can basically argue both ways – depending how you define “public interest” in the context of all that has transpired during the past 10 years. But to come to the conclusion as the prof did that the NPA is “breaking the law” as a matter of fact based on his interpretation of the NPA prospection policy is reckless and can not be borne out by the facts.
Ozoneblue:
The rule of law is pretty much in public interest, won’t you agree?
Mdu:
Yes, we know that the face of the party is Zuma. That has caused the ANC to split. What I said proves that Zuma has not been democratically elected by the majority in any way and that many people are unhappy with Zuma, although they are quite happy with the ANC in general.
Mdu et O3blue – Go tead paras 3 and 4 of the amended Prosecuting Policy linked above (tip – the Policy itself appears from p 9 onwards). Mdu, especially take note of the introductory sentence to para 3: “Prosecutors must at all times act in the interest of the community and not necessarily in accordance with the wishes of the community.”
As has been pointed out here and by the DA amongst others, there is no clear logical link between the reasons advanced by Mr Mpshe,a nd the decision taken. If a decision has no (apparent) rational foundation, then it ought to be subject to judicial review.
However, I am not convinced that the DA’s argument about PAJA will carry – it seems to rely on a thin intepretation of wording, which might also go the other way.
But, in my opinion, the Constitutional Court could hear the matter.
First, it would be easy to argue on a preponderance of probabilities that the prosecution policy was not observed in the making of the decision (as the Constitution requires). The first (but inconclusive) step is that the policy was not referred to. The NDPP is not obliged to stat e his reasons, but by advancing a line of reasoning not related to the policy allows one to infer that the policy was PROBABLY not followed.
However, the NPA would then have the opportunity to rebut this by showing that, although not mentioned, the policy had been adhered to. The problem is that there does not appear to be anything int he policy that can be demonstrated as having been relied upon. It all points in the opposite direction. It would also be interesting to have the actual prosecutors on the witness stand in this regard.
Ando so, if the policy was not adhered to (already a breach of the Constitution), and if there was no rational connection between the reasons advanced and the decision taken, and if there is a suggestion of bad faith in using the wording of the Hong Kong case, then I feel a reasonable argument can be made that the decision could only be the result of fear or favour.
In the absence of the declaration of a lawfully valid “reason”, one can only be left with the inference that the action arose from favour or from fear.
Should Mr Mpshe go to jail?
Garg Unzola @ 9:41 am
“The rule of law is pretty much in public interest, won’t you agree?”
I would contend that the selective targeting of certain popular politicians with clear evidence of political manipulation of the process involve will not be in the public interest.
Mpshe may that very clear and in context of the prosecution policy :
“Members of the Prosecuting Authority must act impartially and in good faith. They should not allow their judgement to be influenced by factors such as their personal views regarding the nature of the offence or the race, ethnic or national origin, sex, religious beliefs, status, political views or sexual orientation of the victim, witnesses or the offender. ”
“The Prosecution Policy is aimed at promoting the considered exercise of authority by prosecutors and contributing to the fair and even-handed administration of the criminal laws.”
“The purpose of this Prosecution Policy is, therefore, to guide prosecutors in the way they perform their functions, exercise their powers and carry out their duties. This will serve to make the prosecution process more fair, transparent, consistent and predictable.”
All of those principles of course are not at all out of sync with the letter and spirit of our constitution.
Ozoneblue
I would contend that the selective targeting of certain popular politicians with clear evidence of political manipulation of the process involve will not be in the public interest
Great. So we agree that if Shaik went to court, then Zuma must logically also go to court for the same crime, since he is implicated?
Thank you.
We also agree that the court must decide on the merits of political interference and that a court is qualified to determine whether the due process was followed.
Ozoneblue, you are wrong that I left out the sentence you refer to. I mention it in the introduction. And the link I provided gives the policy. You do have to page to the relevant section though, which requires a certain small amount of time and discpline and an eagerness to learn.
As the prosecution policy makes clear (and as the Constitutional Court has stated on several occassions) the public interest or what the Constitution says is NOT always what the majority believes. Otherwise we would have severe discrimination against woman, the death penalty, no gay rights, no rights for for an accused person (ike Mre Jacob Zuma until recently was), and no freedom of religion and maybe also not free elections. The factthat the majority will vote for the party who will elect Zuma as President through their majority in the National Assembly really cannot make an otherwise illegal act illegal. If the majority vote for the ANC who elects Zuma and Zuma then issues a decree to have the hands copped off of all people who do not speak Zulu, that decision will be illegal and a court will be able to declare it invalid. That is the difference between a system of Parliamentary soveriegnhty like in the UK and the kind of constitutional democracy we have and which is also present in India, the USA, Brazil and Canada.
Lastly, your claims are in sync with the prof’s claims, namely that the NPA must follow its prosecution policy. It is highly inconsistent and unpredictable that the NPA suddenly decided not to prosecute Zuma after everyone involved with the case – even Mpshe himself – have admitted that there is a strong case against Zuma.
Zuma himself admitted guilt between the lines by insinuating that if he goes down, the whole house of cards would tumble down.
Nothing Mpshe addressed concerns the merits of Zuma’s case. The reasoning of political interference Mpshe refers to was plagiarised from a Hong Kong judgement, which is definitely not in sync with any letter in our own constitution.
Your reasoning does not lead to your conclusions. Your reasoning, being based on the same premises as that of the prof and following the same line of argument, leads to the same conclusions as that of the prof, namely that the NPA should follow its prosecution policy.
ozoneblue // Apr 16, 2009 at 10:03 am
well done ozoneblue now we can agree that since the policy is in the spirit of the constitution
now go read Section 179(5) of the constitution as this tell us what?
clearly embodies constitutional protections against an unfair, over-hasty, arbitrary or incorrect change of a decision to prosecute or not
Mpshe was over – hasty as pointed out many times
arbitrary – by quoting a High court judge in Hong kong who’s ruling was later appealled.
Actually the process of crying ‘conspiracy’ when faced with criminal charges is already gaining momentum. Are we now going to be continually facing a trial within a trial to prove or disprove a political bias and alleged conspiracy against an accused. Good for billable hours, but not much else. Reminds me of the centipede, who obsessed while walking with which foot went next, having so many, lost its ability to move at all.
We need to shift our obsession with JZ, as charming as he is, and for the next five years deal courageously with this most serious and daunting challenge at hand. And it’s not about racism.
Forget whether JZ is committed to the rule of Law. We know the game plan. Its a given. What matters now is that each member in the profession review deep down in their soul, the integrity of their personal commitment, and may I say, intent.
Who but the thug wants to live in a lawless state!
Mike Atkins // Apr 16, 2009 at 9:58 am
Should Mr Mpshe go to jail?
Thats a very interesting question…….if anything he will just be fired or forced to resign……..however talking about abuse of the system……one can argue that Mpshe being an ANC card member and the toxication of company conflict with your new boss to be……..if one can prove he was bribed well then that a different story and yes will be prosecuted and sentenced
sirjay – “Who but the thug wants to live in a lawless state!”
Thing is – it appears that the ‘thugs’ form the majority in RSA today.
I mean – who would daresay in Somalia that piracy is unlawful? Who will daresay in RSA that corruption by top politicians is unlawful?
Sorry, professor, but I’m not convinced of the accuracy of your last paragraph. One of the few facts to come out of the transcripts from McCarthy’s cellphone, was the fact that the NPA had built up a massive case against Zuma which they were sitting on until, mirabile dictu, Pikoli was out of the way and suddenly they could press charges. This corresponds with the fact that in 2006 Pikoli was somehow incapable of presenting a case against Zuma which had already been presented in Shaik’s trial.
There’s a lot of evidence, in my view, that Pikoli was in Zuma’s bag. I’d rather he had nothing at all to do with the NPA.
MFB // Apr 16, 2009 at 11:10 am
lol Pikoli is now in Zuma’s bag?? wow …….i gotta take a minute to soak this one in….
so because pikoli’s case was strucked off the roll by a high court for delays (let me guess purpesly to delay zuma’s trial as he is the new next president and just has to wait it out adn then he will be in the good books with crap loads of bonuses being thrown at him by zuma for being so loyal to his master)
Oh no but he got fired?? so much for being in Zuma’s bag
sirjay jonson // Apr 16, 2009 at 10:37 am
“We need to shift our obsession with JZ, as charming as he is”
you forgot as “sexy” as he is…since he has been voted the sexist politician
if thats your sexist politician then god damn you south africans are an ugly bunch
Sexiest Politician… wait, how come I missed that vote?
Now much as I know about the law, a layman at best.. apologies, woman at best… that was RIGGED!!!! RIGGED I TELL YOU!!!!
no democracy on that one.. I stand firmly on my opposition to this self attained title!
@ Mdu
‘Wim Trengove should speak for himself, the Prof. and other white racists in the DA and not us,for us public interest has been well served in dropping the flimsy Zuma charges!’
which part of us? I think some people will get a big shock come 22nd of April South Africans may be many things but wont be fooled this blatant abuse just put other parties like the DA & COPE in a better light the opposition can only get
stronger
Mpshe was under pressure from the ANC Finish & Klaar
Mouse, welcome back. You may want to join my sparring session with Prof under the blog “…matter of rule of law”, because Prof seems to have abandoned it prematurely.
The problem with DA’s review application is that it may result in unintended consequences – blessing Mpshe’s decision with judicial confirmation. The grounds for review are very narrow. It is not about the correctness of the decision taken but more about the process followed to arrive at such decision. In this regard, DA has a mountain to climb. In the end, for what ever reason, the review application will fail and Zuma supporters will claim that ‘correctness’ of Mpshe’s decision has been confirmed by the court of law. Those against Zuma will correctly argue that the court’s decision was not based on the correctness of Mpshe’s decision.
Mouse, I know that you have almost levelled the score with the assistance of Harmse DJP, but I am still leading – remember Electoral Court’s decision on Winnie Mandela?
Interesting stuff again Prof. You don’t seem to let go of this fight. Maybe you are right Zuma is a thieving scoundrel and must prove his case before the courts. What I fail to understand is why after so many blogs and years of saying there is no conspiracy, when one is found you don’t agree you were wrong. I don’t care how much you hate Zuma, where the tapes came from and why they would conspire against JZ, just admit you were wrong. Or maybe you still feel there was no conspiracy. Maybe you are praying that the courts will say there is no conspiracy? Nobody has said the tapes are not authentic. Have you noticed this? Even Ngcuka and McCarthy are not disputing the authenticity of the tapes they only want access to any of the transcripts so far. The start to this argument is to agree you were wrong then we can discuss the merits of pursuing the case further.
bongs
sorry i hav to jump in here
” It is not about the correctness of the decision taken but more about the process followed to arrive at such decision”
with what authority?
1)well im afriad with authority that this is the incorrect conclusion you come to please have a look at Harms judgement
2) the problem wiht your statment is because of the embarressment made by Mpshe to take reference from a Hong Kong judge as south africa has its own common laws and constitution, this proves that the decision made by Mpshe was already a pre made up conclusion and a sloppy statement was just the after thought. the thing is Mpshe could not find a legal why to work round Harms judgement. ive also already highlighted to you that the investigation into the tapes should have been done first and how and when did Zuma get his hands on it as that is also another legal problem as i seem to be leading in this matter
Now to through this back at you
” It is not about the correctness of the decision taken but more about the process followed to arrive at such decision”
it is not about the correctness of the decision taken by mpshe but more the lack of process and constitutional guidlines not taken to arrive to such a conclusion that was already made before the anouncement with out a full investigation
this is the accepted legal principal
“Motive should not influence the merit. If the course is correct, motive is not a material issue,”
Thus to conclude your statement is actually legaly incorrect.
Thomas, a careful reader of this Blog would know I never claimed there was no interference in the Zuma case. I have speculated about this possible interference several times. I have consistently said that there is absolutely no proof that evidence was manufactured in this case and as Shaik was convicted for bribing Zuma one must wonder about the guilt of MrZuma. Even Zuma has never said the evidence against Shaik was cooked up. This means Zuma probably took R4 million from Shaik, R500 000 from the arms company and then did favours for them. There is no proven evidence of a conspiracy, of course – as the SCA pointed out – but if Ngcuka or Mpshe or McCarthy ran for President I would question their public morality as reasonable people may wonder whether they did not allow some interference – especially given the snippets of the tapes that have now come to light.
I know you will not believe me, but for me this is not about the person of Mr Zuma. It is about the Rule of Law. That is also why I was so critical of Mbeki when he suspended Pikoli as this seemed like a complete abuse of power. The reason why I am hammering at this is because I passionately believe that without respect for the Rule of Law the most powerless and vulnerable will suffer most. They will also suffer most if high profile corruption cases are not pursued and the belief takes hold that corruption is fine – as long as you are powerful or belong to the right party or faction.
If there was interference in the NPA it is ABSOLUTELY imperative that the NPA Act, whichprohibts this, must be enforced and those who interfered must be charged with a crime. This is how we restore confidence in the NPA – not by it dropping charges without any seemngly good reason.
Chris, I think you are confusing two things: (1) when will a decision to prosecute be unlawful – Harms said even a bad motive will not make a decision to prosecute unlawful. The decision to prosecute Zuma was therefore cleatly not unlawful. (2) when can the NPA drop charges even if a person was charged lawfully. In this second situation Harms decision not relevant. The prosecution policy read with section 197(5)(a) of Constitution is. My argument is that this policy seems not to have been followed and hence that the decision to drop the charges was probably unlawful. A judge may differ but given what we know now, I would be rather surprised and would like to see the reasons for such a decision.
Bongs – thanks to you too for the words of welcome from my brief absence to Namibia. Yes you are leading, but I would’ve leveled the score had the Zuma thing gotten to the CC again – but then Mpshe went and brought an end to that possibility – at least for now.
Ii agree with you re the difference between appeal and review, and that review in the classical sense has more to do with process and ‘irregularities’ rather than correctnes or not of a decision taken, which is corrected on appeal – and we know there is no appeal that lies against a decision by the NPA. Other routes normally have to be followed – like a private prosecution (where one will have to show an interest in the outcome of the case in the narrowly defined CPA provisions – if those provisions will pass constitutional muster, which is another question). But then, those were the classical (pre-constitutional) views on appeal and review. When one chuck in provisions of the Constitution like s 179(5)(a), which was clearly not observed by Mpshe; and s 34; coupled with the Constitutional jurisprudence that the state has a constitutional and international duty to protect society (and democracy) against serious crime, like CORRUPTION (couldn’t resist making it a ‘capital crime’, so to speak) – then the DA (or whomever) has a seriously winnable case. It is not a question of ‘reviewing’ Mpshe’s decision in the classical sense, but rather a question of determining the constitutionality of Mmpshe’s decision. Remember the Constitution is the suprema lex?
Pierre De Vos // Apr 16, 2009 at 1:26 pm
lol well thats exactly what i was trying to say but you put it a bit better than me my argument is the same as yours guided by the very section 197(5) of the constitution of south africa that the dropping was Unlawful that even given the motive by Mpshe is a bad motive will still not make the decision to carry on with the prosecution unlawful or make his way to court any less clear even with the so called attempt of abuse by McCarthy……..thats why all parties that have gone to the high court for a revision of Statement will win the case because the process that Mpshe took was actually unlawful guided by section 197(5) of the constitution by the very fact this was done in hast with out any investigation and the arbatrary conclusion of a judgement of another country that was appealled…..however i do feel the motive is important given the unique way a poltical party drops friends off in high positions Mpshe motive could be based on bribery
Chris Mcdaniel –
You often have interesting things to say, but I wish you’d use capitals and full stops and paragraphs.
It makes what you say much easier to read.
Next question:
If Mr Mpshe’s decision was unlawful, did anybody else influence him in any way? Think about tis for a while…
If anybody else did influence Mpshe, or paticipated in the “plan” to influence him, then are they guilty of contravening section 32(2)(b) of the NPA Act? Would they be guilty of any other crimes? Like corruption if a bribe was offered, or extortion if a threat was made? And then the NIA! Apart from the leaking of the tapes (Michael Hulley “knows” that it was not Fraser, despite not knowing Fraser), was the decision to declassify some of the tapes lawfully carried out?
Now think about the “body language” of the Zuma cabal prior to the announcement – you will probably find that most of the key players knew what was going to happen ( like “we must all RESPECT the outcom..”).. I believe that Chippy Shaik arrived in SA in time for the party the next day…
I feel that this decision is a bigger scandal than the arms deal itself.
Mike Atkins – I agree – the decision to reverse an earlier decision (of the same person!) to prosecute, in these circumstances, is a much bigger scandal than the Arms Deal itself. But, so it appears, many top brass in the ANC love scandal – cannot exist without causing it. Mpshe’s decision was unconstitutional – period!
“I believe that Chippy Shaik arrived in SA in time for the party the next day…” = Weeell, yes, as I have said in jest in an earlier response yesterday, JZ’s smiling face on the election posters country-wide quite bears a resemblance to that potato singing “I wanna be a Simba Chippy!” before falling off the wagon in the recent spate of SABC TV adds. And ‘Chippy’ equals ‘Chippy’ …
Wessel lol noted i will do.
Mouse and Mike, fantastic stuff i like it.
Anonymouse // Apr 16, 2009 at 2:08 pm
Is this an indication that you are prepared to bet on this one?
Even if you elevate the issue to the constitutionality of Mphse’s decision, the legal issue still remains: constitutionally (in accordance with PAJA) is Mpshe’s decision reviewable? That is when the principles of review become relevant. The new dispensation has infused the constitutinality test for reviews by requiring the decision to be rationale (not necessarily correct) in relation to the reasons given for it. The difference between appeal and review is still jealously maintained. The real question is: could (not ‘can’) a reasonable decision maker (NDPP in this case) have arrived at the decision made given what was before him?
I will gladly accept your bet sothat I can extend my lead.
If you want to read the decision that was allegedly plagiarised, follow the link and enjoy!
http://www.hklii.org/hk/jud/eng/hkcfi/2002/HCCC000191B_1999-35341.html
Prof you say “This means Zuma probably took R4 million from Shaik, R500 000 from the arms company and then did favours for them.”
What were the favours that Zuma did for the arms company?
What is the crime If Zuma took R1billion rand from Shaik?
I will agree with you if you say “you want the rule of Law to be seen to be done.” Pursuing Zuma at this stage is nonsensical and will not result in any sense that the rule of law has been observed. Pursuing Zuma will convince the over 50% of the literate and illiterate South Africans that Zuma is being persecuted. If Zuma goes to court again for what ever reason will only result in those people believing that the rule of law is not worth following. Why respect the law? Cases are dropped, reinstated, dropped again and reinstated and dropped and now political parties are involved. The political parties have destroyed what you hold dear (the rule of law). Not Zuma. If the political parties and Zuma’s opponents in the ANC had let the NPA alone to prosecute Zuma then this would have been over ages ago. But the media and analysts have played in hands of the politicians. The question to ask now is if there is so much evidence and we know that there have been so many leaks to the media about the case, why has the evidence not been leaked yet? This would destroy the character of Zuma and we wouldn’t vote for him and the ANC would be forced to remove him as Presidential candidate. Didn’t this happen to Carl Niehaus?
I asked you this question before: why the conspiracy on the timing of the trial if the conspirators could just remove Zuma from the race by convicting him from the ANC presidential race with the volume of evidence they have?
And this is the case that trumped it: http://legalref.judiciary.gov.hk/lrs/common/ju/ju_body.jsp?DIS=26076&AH=&QS=&FN=&currpage=
Thomas // Apr 16, 2009 at 4:38 pm
“why the conspiracy on the timing of the trial if the conspirators could just remove Zuma from the race by convicting him from the ANC presidential race with the volume of evidence they have”
Thomas, for the last time there is no conspiracy.
Reason 1: determining or talking about when to charge Zuma is not an abuse of NPA internal structures. A new team was involved that Mpshe was surrounded by he made the final call, no one put a gun to his head…..he applied his mind.
Reason 2: for a conspiracy that Zuma is claiming is for someone to fabricate charges, trumped up charges, which never happend that is called political meddeling.
For the last time there is a big difference between political meddling and abuse of power and talking about when to charge someone? dont you think?
to abuse the system one would fabricate charges…..there is no proof of a political meddling campaign against Zuma
The Harms judgement is suspiciously politically inspired. He seeks Zuma in jail and only solicited fellow white judges to close all loopholes of ulterior motives by the NPA. It has always been clear that there is political meddling on the case of Zuma.
The Ngxuka decision that there is evidence of corruption against Zuma but case unwinnable was to calculated to create a dark cloud over Zuma so that he would not stand for ANC position of President or loose political support in the structures.
When this failed Zuma was released and Pikoli met mbeki on a plane to discuss in absolute privacy right above the clouds in the sky to recharge zuma.
Private media briefings held to vilify zuma in the media.
public interest was not served with this sort of interference. On this question different persons could come to different decisions on the question of dropping the charges. Anyway, we need another judgment. This a serious politico-legal farce.
The observations of Nicholson on political meddling are correct thought correctly rejected as being irrelevant or not gemane to the matter before his and not supported by evidence by the applicant.
Judges, alleged scholars, professors, former judges, political commentators and society in general, clevers or stupidly have taken a side.
Garp the ANC has never split but few members, some prominent, defected and formed an oppositional political party.
We are patiently and tolerantly awaiting the review application by DA. I think it will fail but must be allowed to take its course. I truly enjoy the legal jurisprudence produced by the Zuma case and promise to write a book when a retire on this
Bongs – I think you are wrong. It is not really about ‘reveiwing’ the rationality of Mpshe’s decision – and, I really don’t think the arguments under PAJA would fly. Nicholson already made the mistake of equating decisios by the NPA to administrative decisions under PAJA, which I think is incorrect.
It is more about Mpshe, through his decision, denying society (or at least the law abiding part thereof) their right to see that justice is done (in other words – to see that guilty crimials are convicted and punished and to see that those whose guilt cannot be proven be acquitted by a court of law). That, my friend, is a constitutional duty that rests on the state, and the NPA is the authority that has to see to it that such cases are taken to court, so that a court, not public opinion, can determine whether the case is proven or not. Now, Mpshe during his press briefing (note that I recogize the source and do not plagiarise) said as follows as far as the representation by the Zuma camp is concerned:
“The representations submitted by the legal representatives pertaied to the following issues:
– The substantive merits
– The fair trial defences
– The practical implications and considerations of continued prosecution
– The policy aspects militating against prosecution
I NEED TO STATE UPFRONT THAT WE COULD OT FIND ANYTHING WITH REGARD TO THE FIRST THREE GROUNDS THAT MILITATE AGAINST A CONTIUATION OF THE PROSECUTION, and I therefore do not intend to deal in depth with those three grounds.” (My emphasis.)
What he is therefore saying is – (1) that the merits of the case are good and justify a prosecution in terms of the Constitution and the Prosecuting Policy; (2) that JZ’s (or is that Julius et al’s) lamentations that he would not get a fair trial is without merit; and, (3) that the practical implications and considerations of continuing with a prosecution against the future President (President Elect – if you like) are not barriers to a prosecution. However, because Bulelani Ngcuka (the guy who refused to prosecute JZ alongside Shaik in the first place – even though there was an aswerable case against him) and Leonard MCarthy had secretly conspired about the timing etc of the prosecution, and even though it was he, Kokkie Mpshe who took the decision to reinstate the prosecution after Pikoli’s failed bid, it would be counter the NPA’s (or is that the ANC’s) policy to go head with the prosecution.
To me this spells an abadonment of the rule of law; and abdication of the state’s (of which the NPA is the constitutional representative) constitutioal duty to take suspected criminals agaist whom an answerable case can be presented to court. (For authority that such a constitutional duty rests on the state, see the AZAPO; Charmichelle, Basson and other cases decided by the CC.) If the state abandons its constitutional duty to prosecute criminals in such circumstaces – it is surely a state (government) action that is prima facie unconstitutional and, therefore, reviewable in an appropriate forum.
Yes, I am rather willing to bet that this is the correct position – but then again – certain judges (Nicholson J and the majority in the WLD’s Hlophe decision, for example) might feel otherwise inclined. But – if this thing goes to the CC – and if Hlophe JP has not yet become CJ – I am willing to bet that the Constitution and the law will regard Mpshe’s decision as reviewable for its unconstitutionality.
P.S. – This went quite fast – so I apologise at the outset for typos etc.
Thomas – “Pursuing Zuma will convince the over 50% of the literate and illiterate South Africans that Zuma is being persecuted. If Zuma goes to court again for what ever reason will only result in those people believing that the rule of law is not worth following.”
Are you saying that Zuma’s (the ANC’s) support has dwindled from a two thirds majority to “over 50%”? I hope so.
I’m just waiting to see where this all breaks. The web of lies, meddling and rhetoric has got to a point where it must trip up somebody. I wish Zuma would go to jail, or Shaik would get sent back to jail, purely because they would then have no incentive to protect anybody else, and we could smash this thing wide open once and for all, and round up everybody who is involved.
The stench is becoming unbearable, even across the pond.
Ishmael Malale wrote: “The Ngxuka decision that there is evidence of corruption against Zuma but case unwinnable was to calculated to create a dark cloud over Zuma so that he would not stand for ANC position of President or loose political support in the structures…”
As a member of the ANC NEC I wish you will pass this message to all ANC (and Alliance) members; especially those who would want us to believe this rubbish.
If Ngcuka had wanted to cast a dark cloud over Zuma, he would have charged him with Shaik. This would have been an easier option than all the theories you are peddling. So tell your colleagues that we are not ALL idiots. This nonsense may be believable in your constituencies, but some of us have brains and we use them.
This should convince even the hardcore skeptics (not idiots) that Ngcuka was both right and wrong.
Right: There was a prima facie case of corruption.
Wrong: It was not winnable in court. (We now know it is winnable.)
http://www.youtube.com/watch?v=iA9NVYW5nvQ
Zuma was paid to protect Thint. Thint is no longer being investigated. This gives Zuma’s corruption allegations far more weight.
It also indicates that the political meddling was engineered by Zuma himself in order to oust Mbeki from his ANC leadership position, in order to protect Thint and in order to protect his dodgy friends like Shaik.
Ask yourself how an NDPP can be fired from his position after an enquiry found that he did his job to the letter?
Garg, thats just pure nonsense – even YOU dont believe what you ve just posted, just quit smoking dagga cos it aint good for you! Anyway, Prof, My understanding is that the Hong kong ruling was that of a permanent stay of prosecution which was later overturned of course. My understanding is that Adv Mpshe is 1. NOT a judge 2. his statement on the Zuma case WAS NOT a judgement but, just a statement, which by law, he was NOT EVEN obliged to give but did all of us a favour. My thinking is that, as Adv Mpshe pointed out in his statement that the Zuma legal team had then indicated the intention to use the tapes in the application of a permanent stay of prosecution, he had to be pro-active enough, as Head Prosecutor, to concede that the was no way out for the NPA on this one – persuing it further, not only was it it going to be fruitless, even more costly for tax payers and legally flawed BUT would have also everybody in the perpetuated the gross abuse of prosecutorial policies of the NPA. Mpshe s emphasis and good precedent of making sure that when going to court you go with “clean hands”, to me, it hand sent the strongest and most fundamental message to all who dispense justice to never ever fiddle with legal processes to advance their narrow personal interests. And now, that has somewhat restored some credibility of the NPA – well, as far as I m concerned!
…excuse the typos and some bad sentence construction…I m just a communist who happens to post via cellphone NOT laptop like that capitalist Chris McDaniel who has five laptops hey!
Pierre,
I think you should stop pretending you are a constitutional expert. You have a political agenda. Why don’t you openly declare it? Your wild conspiracies have nothing to do with the law and/or the constitution. Join the DA or Cope and stop using the cover of a “constitutional expert” to pursue political beliefs. If the majority believes in your views and/or conspiracies, they will vote for you.Currently, all you are doing is denigrating the very constitution you claim to want to protect.
Thomas @ 4:38 pm
“I asked you this question before: why the conspiracy on the timing of the trial if the conspirators could just remove Zuma from the race by convicting him from the ANC presidential race with the volume of evidence they have?”
That is a good question and the answer is probably they don’t have those volumes of evidence. If they had they would have put Zuma away in 2003. By 2005 they still didn’t have “volumes of evidence” instead they embarked on a fishing expedition confiscating around 32 000 documents form Zuma’s home and the offices of this attorneys AFTER they had decide to prosecute Zuma. And the NPA prosecution policy clearly states :
“In deciding whether or not to institute criminal proceedings against an accused, prosecutors should assess whether there is sufficient and admissible evidence to provide a reasonable prospect of a successful prosecution.”
But of course nobody, including PdV, suggested then that the NPA was breaking the law and that South Africa was spiraling down a bottomless bit of lawlessness. Just as they didn’t complain about such dramatic things happening when Ngcuka didn’t prosecute in 2003 even when he said he had ” prima facie evidence” nor did they say much when the Scorpions under McCarty was caught red-handed busy with unlawful activities such as “gathering intelligence” on their pet subject the dishonorable mr Jacob Zuma.
In fact had our “constitutional experts” and their allies in the media spoken out then about those obvious abuses back then instead of launching an attack on the Public Protector’s office perhaps we wouldn’t have ended up with the royal mess that we have now.
Spuy // Apr 16, 2009 at 10:03 pm
lol.
jj @ 10:03 pm
I have come to very much the same conclusion.
Mouse, I am not aware of any decision where a South African court reviewed a prosecutor’s decision to drop charges. If you are, kindly favour me with the citation.
If DA’s cause of action is not founded on PAJA, the only remaining resort is common law review. Even there I still think that their application is, to borrow Prof’s words, dead in the water!
Anyway, lets and wait and see. After the euphoria of elections has died down after 22 April, I will not be suprised if DA walks away from this application.
Bongs, you are wong. Read the Modderklip and Doctors for Life decisions of the CC. And also Frank Michaelman’s chapter in CLOSA on the Rule of Law. If a organ of state fails to follow a prescription in the Cóntitution (that pesky s 179(5)(a) again) a decision can be set aside by a court.
JJ, see the heading of this Blog. It is a Blog on political and social matters written from a constitutional perspective. Every lawyer has political views and ideological commitments. I am just honest enough to talk about them. My commitment is to the values in the Constitution. I do not have a blind loyalty to the ANC (which seems to be what upsets you) or any other party. Pity more people do not liberate themselves from a blind faith in any party or person.
Bongs – I agree with Prof Dde Vos’ take at Pierre De Vos // Apr 17, 2009 at 7:54 am. This is not about ‘review’ in the common law sense of the word. It is about provisions of the suprema lex not being honoured. Remember s 2: “This Constitution is the supreme law of the Republic; law or CONDUCT INCONSISTENT WITH IT IS INVALID, and the obligations imposed by it must be fulfilled.” (My emphasis.) Read this with s 172 of the Constitution and you will soon find that there is no need for so-called ‘common law review’ of Mpshe’s decision at all. If his conduct to ’stop’ (no, I think ‘abandon’ is the more apt word since JZ has not yet pleaded) the prosecution is inconsistent with the Constitution – and it is, judged according to s 179(5)(a) – then a competent court to which an application is directed “must declare that … [such] conduct … is invalid to the extent of its inconsistency”. This has nothing to do with PAJA or the common law principles of appeal and review; and, even if it had, the courts still have the power to develop the common law in this regard. I have a good feeling that a competent court might even find that the provisions in the CPA relating to ‘private prosecution’ are inconsistent with the Constitution to the extent that they require someone to show a specific personal interest in the outcome of a matter before he/she/they may institute private prosecuition in the case of a certificate nolle prosequi (which is what Mpshe’s decision boils down to). The fact that there is no existing precedent where a prosecutor’s decision to drop charges has been ‘reviewed’ makes no difference to the above. Such conduct is challengable under the Constitution and, if inconsistent with the Constitution, it must be declared invalid (unless it can be interpreted in a constitutional-conformative way, which would be very difficult in matters like these).
Spam // Apr 16, 2009 at 10:03 pm
Im sorry i have 4 laptops actually, i got no issues being a capitalist i work hard for living and thats what capitalism is all about i am your worst nightmare then, I embody capitalism…………last time i checked we won the cold war, comrade
Spam apply your legal mind here, I dare you actually and JJ and our rocket engineer Ozzhole
(Spuy // Apr 16, 2009 at 9:56 pm)
I take it your a lawyer?? if you are good we gonna have fun now.
What do you actually have?
You have alleged tapes you dont even have, that even the NPA doesnt even have, all there is, is a script that is 2 seconds long taken from a conversation that could of been 30 mins long about a casual chit chat about the likely hood of prosecuting Zuma…..oooohhhhh im scared.
In a court of law if this was your evidence wtf do you think the judge is going to say or the state prosecutor well say to your defence? There is NO legal way Hulley could of gotten those tapes to pass to Zuma, there is none period.
Um firstly what the hell is your client doing with state material?
secondly where the hell is the full audio?
thirdly is it authentic?
Wheres your proof?
My capitalistic fart has more substance in a conspiracy theory against Zuma than your evidence of a 2 second script which has most likely been taken out of context….It proves nothing…….if you deal with law you deal with facts hard evidence. Innocent until proven guilty…is it not?
I can picture Hulley and Zuma sitting in a corner listening to this audio: “hey this guy said MAN….ohhhh wait now he said BIG……Oh my god man and big…big and man awwww BIG MAN….this proves it they out to get me!!!
The only abuse of state i can see so far is from Zuma and the NIA.
In order for Zuma to be vindicated about this so called plot, one is still yet to see evidence being vabricated from political meddling……has this happend?
Instead we found a bunch of gun ho happy shooters who believe every single crap that is fed to them. If the NIA gave a private citizen a list of names and telephone numbers of every spy operative or telephone recordings between them to you, would that be illegal?
Now spam with regards to Mpshe.
You and him did not apply your minds.
Firslty even i know South Africa has its own common law and has its on constitution in order for Mpshe to work around Harms judgement he quoted from a judge who’s judgement was over ruled. When it comes to LAW one has to provide authority. In other words in order for Zuma to claim his legal solution Mpshe has to use legal authority! This is not rocket science. To use legal authority on a judgement that lost all meaning becomes worthless. Hence that this is not a legal solution but a political solution.
Which brings me to this and a free little education for you SPAM and JJ since you both seem very lost here.
Constitutional Law should be treated as the 3rd order of the political. Which must advocate the establishment of a properly equilibrated political system in which power was checked by power.
Constitutional law is a spiece of politcal right it is positive law which has been broken by the ANC and fight against it when dropping the charges of Zuma.
So when Zuma shouts out at the constitutional judges about being Gods, he is simply deluded at best, constitutional law is not handed down from above but which exists as part of the self-regulatory process of the political relm.
chris, i was just fooling around on the 5 laptops and capitalist thing man! For someone who likes fooling around sometimes, you sure as hell have a touchy sense of humour neh!
Let’s say that the DA application is successful (highly unlikely given that our judiciary is tainted by Zuma sycophants). What would the consequences be?
Would Zuma remain president with charges hanging over his head?
Would Zuma be recalled as president?
[...] Further scrutiny of the arguments advanced by the NPA left one conclusion, they were not a coherent assessment of the case in terms of South African [...]
Prof: you make a convincing argument on why the law must not be broken in order to show an injustice. It is like shooting a criminal/bugler in your house. This burglar comes into your house, steals your belongings, comes back to Rape your wife and kids. You see him in the process of raping your wife and you have a gun with you. You then phone the police and wait outside in case you break the law by assaulting this guy or shooting him. I am not making a comparison with the Zuma case, what I am saying is look at the Zuma situation and analyse the merits and demerits of the dropping of the charges. Once you start using hypothetical situations in support, you must remember there are many also against you argument.
Do we really know all the contents of the tapes? Do we really know the “volumes of evidence” the NPA has in its possession? I don’t think so. That is what is worrying with the arguments.
In actual fact we do not know much about the case. The Prof has in many instances conceded in many of his postings that the only evidence he feels is strong enough to convict Zuma is the same one that convicted Shaik, and the conclusion by the court that there was a corupt relationship between Shaik and Zuma, vice versa he doesn’t know. We already know that the letter, signed by Zuma, to the then chairman of Parliament’s standing committee on public accounts, Gavin Woods, informing Woods of a presidential decision not to issue the proclamation required for the investigation Woods had sought into the arms deal was not written by Zuma.