Constitutional Hill

A worrying attack on the Rule of Law

The decision of the Supreme Court of Appeal (SCA) on Tuesday in the Jacob Zuma case, must come as a political – but not yet as much of a legal – blow to President Jacob Zuma. Coming just as the unofficial succession debate is hotting up, this judgment will provide some ammunition to President Zuma’s opponents inside the ANC as it will remind party activist and ordinary voters alike that Zuma had a corruption case to answer, that his financial advisor was convicted of bribing him but that he never got his day in court to clear his name.

It is important to note that the decision does not deal with the merits of the case brought by the DA, as the NDPP and the President have been using stalling tactics to ensure that this case is not finalized before the ANC elective conference this December. The question of whether the decision of the National Director of Public Prosecutions (NDPP) to drop all corruption charges against Jacob Zuma was unlawful and should be set aside, will only be considered once an appeal of this judgment had been finalised by the Constitutional Court, and then only if the Constitutional Court confirms the SCA judgment.

Legally there is therefore still a long way to go. Even if the Constitutional Court confirms the SCA judgment, the merits of the case will then have to be ventilated in the High Court and will almost certainly be appealed to the SCA and then the Constitutional Court. But the Constitutional Court judgment might well be finalized before December, which would mean that if the SCA judgment is confirmed, the NDPP will have to hand over almost all relevant documents which were considered by the NDPP when he made the controversial decision to drop charges against Zuma to the court. The NDPP would not have to hand over the written submissions made to the NPA on behalf of Zuma as these documents are confidential – unless President Zuma waives his right to confidentiality in this regard.

As Navsa J explained, this will present difficult choices for the NDPP and for President Zuma, as they run the risk of ultimately losing the case if they fail to put sufficient documents before the court to legally justify the decision to drop the charges against the President. Such information, crucially, will have to include evidence of the tape recordings which ostensibly led to the dropping of charges as well as evidence about the way the tapes were obtained and by whom they were made. I quote from the judgment.

In the event of an order compelling production of the record, the office of the NDPP will be obliged to make available whatever was before Mr Mpshe when he made the decision to discontinue the prosecution. It will then fall to the reviewing court to assess its value in answering the questions posed in the review application. If the reduced record provides an incomplete picture it might well have the effect of the NDPP being at risk of not being able to justify the decision. This might be the result of Mr Zuma’s decision not to waive the confidentiality of the representations made by him. On the other hand, a reduced record might redound to the benefit of the NDPP and Mr Zuma.

Interestingly, the SCA decided not to deal with the question of whether a decision by the NPA to drop charges constituted administrative action under the Promotion of Administrative Justice Act (PAJA). Instead it found that the decision was reviewable under section 1(c) of the Constitution. This is where the curious statement of the ANC becomes relevant. In the statement following the judgment the ANC said, amongst others:

This matter, whilst it receives a deeper legal analysis, we however want to highlight the following:

  • The continued attempt by the DA to use the Courts to undermine and paralyse government.
  • The granting of blanket permission to political parties to can review any State decisions, using Courts.
  • How the DA will conduct a review of the case when it can`t have access to all the information which informed the NDPPs decision, to withdraw the charges.

Given these facts, it is clear that democracy can be undermined by simply approaching courts to reverse any decision arrived at by a qualified organ of State.

Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law. The Rule of Law requires, at a minimum, that public power must be exercised in accordance with the law and in a rational manner. The ANC statement suggests that when the government of the day (or in this case the NPA) acted illegally (in the sense that it ignored the law or was not authorised by law to act or where there was no rational relationship between the act and the reasons given for the act, then a political party should not be allowed to approach a court to challenge this flouting of the law and the Constitution as this would open the floodgates of litigation, would undermine all organs of state and would paralyse government.

As I see it, this seems like an extraordinary admission on the part of the ANC that the government it heads flouts the law and the Constitution so regularly that it would be completely paralysed if it is taken to court every time this happens. Why else would political parties flood the courts (spending millions of Rand they could have spent on election campaigns) unless they believe they can prove that the government has flouted the law. I am not sure the statement was meant to make this admission, but that is the necessary implication of it. The SCA dealt with the floodgates argument in the following (to my mind convincing) passage, starting with a quote from a High Court judgment:

“One of the principal objections often raised against the adoption of a more flexible approach to the problem of locus standi the floodgates will thereby be opened, giving rise to an uncontrollable torrent of litigation. It is well, however, to bear in mind a remark made by Mr Justice Kirby, President of the New South Wales Court of Appeal, in the course of an address at the Tenth Anniversary Conference of the Legal Resources Centre, namely that it may sometimes be necessary to open the floodgates in order to irrigate the arid ground below them. I am not persuaded by the argument that to afford locus standi to a body such as first applicant in circumstances such as these would be to open the floodgates to a torrent of frivolous or vexatious litigation against the State by cranks or busybodies. Neither am I persuaded, given the exorbitant costs of Supreme Court litigation, that should the law be so adapted cranks and busybodies would indeed flood the courts with vexatious or frivolous applications against the State. Should they be tempted to do so, I have no doubt that appropriate order of costs would soon inhibit their litigious ardour.”

Thirdly, as was pointed out by Budlender, ‘if the cases are well-founded, there can be no objection to a flood of people trying to achieve justice’.

What the ANC does not seem to understand is what is at stake here: the very essence of respect for the Rule of Law, a founding value of our Constitution contained in section 1(c) of the Constitution. That section proclaims the supremacy of the Constitution and the concomitant supremacy of the Rule of Law. In fulfilling the constitutional duty of testing the exercise of public power against the Constitution, courts are protecting the very essence of a constitutional democracy. When a political party approaches the court on a Rule of Law question, it is also helping to safeguard democracy. This principle is important, and is explained thus in the judgment:

Put simply, it means that each of the arms of government and every citizen, institution or other recognised legal entity, are all bound by and equal before the law. Put differently, it means that none of us is above the law. It is a concept that we, as a nation, must cherish, nurture and protect. We must be intent on ensuring that it is ingrained in the national psyche. It is our best guarantee against tyranny, now and in the future.

The ANC should have thanked the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections. This does not mean the DA will ultimately win their case. This will have to be decided afresh by the High Court. There are two aspects relating to the Rule of Law that might be relevant to this case, depending on the facts and depending on the evidence placed before a court.

First, although the judgment does not expressly say so, the NDPP would not have acted in accordance with the law and the Constitution, if he had dropped the charges on grounds not provided for in the NPA’s prosecuting policy to which the NPA is bound. What will make the NDPP’s case more difficult is that the acting NDPP, Mokothedi Mpshe, had failed to refer to the prosecuting policy at all when he provided reasons for the dropping of charges. The argument would therefore be that the charges were not dropped in accordance with this legally binding prosecution policy and was thus unlawful and an affront to the Rule of Law.

But there is a second aspect of the Rule of Law which might apply here. This is that when public power is exercised in terms of the Constitution or other legislation, this exercise of power had to be rational. As Navsa pointed out, “the rule of law also requires rationality as a prerequisite for the validity of the exercise of all public power”. This means that where somebody exercises public power, there must be a rational connection between the decision taken and the stated reasons or goal of that decision. Where reasons were cribbed from an overturned Hong Kong decision, say, the body making the decision will have some work to do to convince a court that the decision was rational.

However, it is important to note that the SCA did not endorse the view that the decision would have to be viewed on these two grounds. That, said Navsa, was a question for the high court – the court seized with the application for the review. Because arguments made by the NDPP about the extent to which the decision was reviewable were premature, it was for the High Court to determine the grounds of review. Criticising the now suspended head of the NDPP, Menzi Simelane, (which was not the first time Simelane has been criticised by our courts) on this point, the SCA remarked that it “is difficult to understand why it persisted in pursuing the appeal on this aspect. It does not reflect well on the NDPP.”

It might well be that eventually a court will decide that there are sufficient reasons to grant a permanent stay of prosecution in this case. But usually those decisions are taken by a judge, not by the NDPP. If the NDPP had acted irrationally or if it had not followed its own prosecution policy it would have flouted the law for political reasons and would have treated one person – the current President – as above the law. That is why it is important that the courts decide whether this decision was valid or not. Who knows, the evidence provided by the NDPP (and perhaps by President Zuma, if he decides to release his submissions to the NDPP) might satisfy the courts that this decision did not flout the Rule of Law.

If that were to be the case, the ANC would have again have to thank the DA for clearing this up and for helping our courts to reaffirm our confidence in our prosecuting authority. At the moment the NPA is not a body that instils much confidence with anybody, as there is some evidence that it has been politically captured by the Zuma faction inside the ANC over the past three years (and there is some evidence that it was politically captured by the Mbeki faction before that). I suspect the statement was made not because of a sudden attack of conscience or principle on the part of the ANC, but rather because the judgment provided a political opening for opponents of President Jacob Zuma and needed to be discredited.

In doing so, this statement represents a worrying attack on the Rule of Law.

  • Brett Nortje

    Of course, this provides the oft discredited mathole motshekga an opportunity to try rehabilitate himself with the leadership with his fervoured promises to ‘review’ the ConCourt.

    We sommer call it ‘tampering’.

  • Maggs Naidu – Zuma must go!

    @ PdV : “In doing so, this statement represents a worrying attack on the Rule of Law.”

    “Worrying” is perhaps an exaggeration.

    It’s more like a “drunken statement”.

    Those who are trying to protect Zuma from being prosecuted (even if that happens 20 years down the line) are clutching at straws.

    And sounding like morons while doing so.

  • Michel Weij

    Ek dink dat die ANC probeer voorbrand maak vir die ANC se regverdiging om die Grondwet te verander deur die bevel van die SCA as verdag uit te maak, asook die motief/we van die DA.

  • Maggs Naidu – Zuma must go!

    It’s too early in the day for frequently respectable, Patrick Craven to be drunk.

    Oh well – maybe not!

    “We condemn the DA for opportunistically using legal procedures to pursue their political agenda, which is to undermine the democratically elected ANC government and its leadership,” Congress of SA Trade Unions spokesman Patrick Craven said in a statement.

    http://www.timeslive.co.za/politics/2012/03/22/cosatu-disappointed-by-sca-judgement

  • Sine

    Rule of Law 1 – Rule by Law 0

    Put differently; DA 1 – ANC 0

    Next up, SCA judges will be accused of being reactionary and anti-democratic. Whatever that means. I suspect the CC will reverse the SCA decision. However, I am yet to read it.

    I am sick and tired of the flagrant abuse of power and state institutions by those in power!

  • Sdumzela

    I personally do not see any attack (mere for a good alarmist headline) on the rule of law.

    My understanding of the statement is broad. It is a situation where the ruling party finds itself unable to make any decisions without them being subject to constitutional challenge .All its endeavours, right or wrong, are being neutered through legal challenges.

    It invariably finds itself opposed to a growing sect coumaflaging under the “protection of (minority) rights”. This grouping is composed of an alliance of selected experts (usually constitutional), civil society groupings (with a few black millionaires to lend their faces and struggle credentials) and media. The alliance members feed off each other.

    It is convenient now (just in case it gets in front of a predetermined headline) to forget that there has been debates about courts being used to settle political problems.

    For strategic political purposes, it is in the interest of the DA to flood the state and ANC with as many legal challenges as possible. It makes sense. Media keeps the case in the headlines. Others provide expert opinions. Opposing groupings are formed for “civilised” protest marches etc

    Fortunately, slowly and steadily, the people are starting to rise. They realise that the right to vote is not bread. By voting, they become active participants in their own subjugations. They legitimise the hold the minority has over them as a people.

    In so much as the courts are meant to safe guard minority (read Chakalson) interests, the majority will have to take to the streets. Its happening.

  • Loudly South African

    The nub of the matter is that Jacob Zuma has frequently protested his innocence of the corruption charges and that, were they brought to court, his name would be be cleared.

    This begs the question of why he and “his” ANC is trying so desperately to prevent his name being cleared.

    As to the decision by Mpshe and Hofmeyr, what the illegally obtained tapes reveal is that AFTER the operational level of the NPA had decided that Zuma has a case to answer, the political level discussed the TIMING of bringing the charges; not whether to proceed despite the weakness of the case or something of that nature. If Zuma or his defence consider that timing an implementation for political reasons to be corruption (and I would agree with them) they should have charged those conniving over this (which, curiously, they have not done) but it still does not affect the quality of the work done by NPA investigators at the operational level, as there is no reason to think that these white Afrikaners were politically connected to any ANC faction.

    Further, if Zuma and his defence consider the investigative work tainted or politically motivated, they should encourage the NPA to bring the 783 charges to court and blow them out of the water there. This would be quicker and far cheaper than having millions of appeals and pursuing the “Stalingrad strategy”.

    Zuma and the ANC must not be surprised or offended if folk follow “Occam’s Razor” and draw the most obvious conclusion – a conclusion supported by Zuma’s conduct in other spheres and by the ANC’s promotion of corruption and obsession with cover-ups of misdeeds.

  • jeffman

    Another step closer to the ultimate dream, the vile corrupt buffoon Zuma behind bars where he belongs. He must be quaking in his boots!

  • Brett Nortje

    Sdumzela says:
    March 22, 2012 at 11:25 am

    If the ANC finds itself in Court all the time it is because the ANC is a habitual offender.

  • jeffman

    @ Brett, exactly, if they just hired a decent constitutional lawyer they would save themselves a fortune!

  • Graham

    A well-researched and comprehensive article. Thank you, Pierre, for this.

  • spoiler

    S Dumezela – what are you smoking – some of your master’s special weed?

  • Gwebecimele
  • Gwebecimele

    They must Godsell and others to explain the 3 year 25% INCREASES that were approved for Eskom.

    http://dailymaverick.co.za/article/2012-03-22-reporters-notebook-ratanda-riots-check-stayed-alive-check

  • Gwebecimele

    “In July, the National Energy Regulator of South Africa (Nersa) approved an average price increase of 31.3% for energy tariffs charged by the state-owned power supplier.

    “If we get similar tariff increases for the next two years, the funding deficit will be R80bn,” said Eskom chairperson Bobby Godsell. “We’ve got to get tariffs at the right level.”

    Godsell said Eskom will have no choice but to delay some of its infrastructure spend if it cannot find any additional funding”

  • Gwebecimele
  • Loudly South African

    To Gwembicile
    The article is about the ANC and Jacob 783 evading the law and the subsequent court case won by the DA.

    You are posting about electricity price increases. It is not the same topic.

  • Mikhail Dworkin Fassbinder

    Sdumzela is right.

    With respect, Pierre, there is no reason that the ANC should “thank[ ] the DA for spending pots of money to safeguard this cherished principle, money they could have spent to fight elections”

    First, the wealthy LIBERALS of the DA are going to recoup their investment in costs. Second, the motivation of the DA has nothing to do with principle; these WHITISTS want only to paralyse the elected government by causing a second Noah’s flood. Third, the DA’s expected return on their investment in litigation is much higher than investing the same capital in election campaigns. Why? Because only the ANC can represent the aspirations of our people!

    Thanks.

  • Sdumzela

    There is no prospect of this case ending. Especially in Zumas’ lifetime. The DA knows it. Pierre knows it. What can only be interesting is the number of trips to and fro the Constitutional Court. For a single case. In pursuit of what? ‘The rule of law’. Whose rule of Law?

    I remember a certain Judge who could not be appointed as CJ because of the rule of law and threats of litigation. Fortunately, we got the CJ we deserved.
    Incidentally, I support Zumas’ right to fight each and every technical point. This after all is what democracy is about. Considering the snails pace matters proceed at that esteemed court (CC) (last year the rate was one judgment per judge ??), maybe we should treat this Zuma case for the farce it is.

    But then it won’t go away. Why? Because that axis (media, DA, academics) thrives on cases like this. Oxygen. It serves to prove that democracy works. The judiciary works. Soon it will be the litmus of how judges are tested. For branding purposes of course. Woe be to the minority judgment.

    I seem to remember a CC judgment which went on to dictate to the Western Cape Province what to do with certain squatters who were supposed to be moved. The case started in Hlophes court where his ruling was derisively treated as anti-poor.

    The CC judgement went beyond its scope by intruding in what I thought was the ambit of another sphere of government. It (CC) eventually “ withdrew” its judgement, which funny enough let the Hlophe decision on the matter stand. That case is neither quoted (in contrast to the Grootboom) nor criticized for the mistake it was.

    Whose Judiciary? Whose rule of Law?

  • Jama ka Sijadu

    It is just so strange that the ANC with all the legal expertise potentially at it’s disposal (just do a head count of senior ANC people, former & currently serving, with legal qualifications, nevermind the Chaskalsons & the Albie Sachs’ etc) keeps seeing its arse in court challenges.

    It should have nohing to fear from “frivolous & vexatious litigation” if it gets its legal ducks in a row beforehand.

  • Gwebecimele

    @ LSA

    You might derive pleasure in discussing the “TOPIC” but I must warn you that it will take 783 yrs if not court sittings to achieve anything meaningful. The rest of us are not loosing sleep on this nor do we expect it to influence the price of bread.

  • Brett Nortje

    Sdumzela says:
    March 22, 2012 at 15:08 pm
    “There is no prospect of this case ending. Especially in Zumas’ lifetime.”

    That might very well be true. And, who do we have to thank for that?

    Are these public representatives who heap shame on South Africa the best the godless, shameless ANC has to offer?

  • mayimele

    @ sine

    A nice score sheet Sine.

    I like the “Rule by law” which seem to be the current leadership of the ruling party’s (both in the party & in government) (mis)understanding of the phrase “rulr of law”.

    May be PdV must consider resuming his free constitutional lessons to the ruling party to understand this and other related simple yet complicated legal and constitutional principles for the ruling party to understand.

  • Mikhail Dworkin Fassbinder

    Brett, with respect, your hurtful slight on what you call the “godless, shameless ANC” skirts the whole issue of the overwhelming responsibility of the LIBERAL WHITISTS who want to govern the country from behind judicial robes!

    Thanks.

  • Brett Nortje

    Since you have nothing to do turn on the TV and see how seriously both the ANC and the SABC take the SABC’s independence.

  • RickySA

    “It is a situation where the ruling party finds itself unable to make any decisions without them being subject to constitutional challenge” – Sdumzela, come on. This is such a ridiculously exaggerated statement. Of the thousands of decisions (millions?) being made by the ANC government, how many have been brought before the courts? I guess it can be counted on one or a few hands. So saying that the ANC cannot govern is blatantly untrue.
    And maybe, just maybe, some of the blame is with the ANC for not tweaking its policies in a way that would be constitutional.
    And then, again, in what possible way can the NPA’s decision to drop the prosecution against J Zuma be considered part of the decisions of government? The answer is: It cannot!

  • Maggs Naidu – Zuma must go!

    jeffman
    March 22, 2012 at 11:48 am

    Hey Jeffman,

    “if they just hired a decent constitutional lawyer they would save themselves a fortune!”

    “They” have got the best “constitutional lawyer[s]” that money can buy and then some.

    All of this nonsense is to create smokescreens i.e. to divert attention away from the real issues facing South Africa and away from the upcoming ANC National Conference at which the leadership will probably be highly contested.

    “Their” constitutional lawyers probably advised “them” to keep a non-issue in the public domain as loud and as long as possible.

    Jackson Mthembu and Patrick Craven both must know that they are talking nonsense but they do it anyway which the state coffers are being raided.

    R1.2 billion has reportedly already left our shores to Sweden for the not yet effective Gauteng road tolls while we are mesmerised by our CJ and his god-links, the ANC vs the “powers of the CC” and Zuma and the now missing spy-tapes!

  • Maggs Naidu – Zuma must go!

    Lt-Col. Richard Mdluli. previousy accused for murder, bribery, nepotism, theft of state funds, intimidation, abduction and now is a candiaide for national police commissioner. Cartoon based on Mangaung shenanigans and City Press’s lead story about how Richard Mdluli, who is tipped to become South Africa’s next police chief, stands accused of rampant looting of the crime intelligence unit. But Lieutenant General Richard Mdluli is ­unlikely to face criminal charges for his alleged deeds.

    http://www.zapiro.com/cartoon/765821-120322tt

  • sirjay jonson

    Maggs Naidu – Zuma must go!
    March 22, 2012 at 17:49 pm

    “Richard Mdluli, who is tipped to become South Africa’s next police chief…”

    Obviously fit and proper much like the previous two, if true, obviously in the Chief’s view. One wonders what is JZ’s dream for SAfrica. What does he really want for the country, he and the ANC. I doubt I’m the only member of the public to be somewhat confused about their schizophrenia, well, not really.

    Does JZ really want another contested appointment to justify his and the ANC’s continuously spun and totally disingenuous conspiracy theories? Is he perhaps a political masochist? Is it possible he has or feels some rationale for his self defeating decisions and actually believes something we in our limited enlightenment don’t understand?

    Stultorum infinitus est numerus.

  • sirjay jonson

    I would suggest that if such an appointment is made Maggs, that this would prove beyond doubt, for lack of more cutting words which come to mind, the type of organization the ANC has unquestionably become.

    Is the ANC still a political party, or are they altogether something else?

  • joeslis

    “… the number of trips to and fro the Constitutional Court”

    Whatever it takes, Sdumzela; whatever it takes.

    “Fortunately, we got the CJ we deserved”

    Indeed we did! :-D

  • Dmwangi

    @Brett:

    Tell me again how wonderful ALL white ppl are:

    http://www.bbc.co.uk/news/world-africa-17434187

  • Loudly South African

    @Dmwangi,

    Please point out where Brett made this a racial issue.

    The blustering racism of the ANC gets more and more nauseating

  • Zoo Keeper

    Obviously the NPA will take this further and wind the clock down until JZ gets off the hook.

    Eventually, without evidence of connivance, JZ will get off because of excessive delay – permanent stay of prosecution here we come.

    As for the ANC’s statements – if they kept within the constitution none of this would be a problem and the DA would have no case.

  • ozonblue

    “but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice, the statement shows a worrying lack of understanding of the Rule of Law.”

    Very good Prof. Chameleon. As I recall that is exactly why Mpshe said he dropped the case against Cde Zuma.

  • Maggs Naidu – Zuma must go!

    Sine
    March 22, 2012 at 11:21 am

    Hey Sne,

    “Next up, SCA judges will be accused of being reactionary and anti-democratic.”

    Isn’t judicial review supposed to be “anti-democratic”?

  • Pekkil

    O, mdluli will get appointed, which will be challenged, further feeding the ‘rage of the righteous’ in the ANC, and creating further ‘justification’ for the review of the control mechanisms over government. If i were an ANC strategist, i would make as many decisions that will be challenged in court, feeding the impression that ‘them whites’ wish to rule thru the courts. In the long term objective of removing any oversight, taking a bunch of losses in court right now, and making a lot of noise about it and polarise the electorate, will prevent taking losses during elections later. And there’s always an Afriforum to go for the short-term battle wins which lose the war.

  • Maggs Naidu – Zuma must go!

    JOHANNESBURG — Nostalgia for former President Thabo Mbeki is washing over South Africa these days. A book about his presidency by the civil servant who ran his office sold out before it even hit the shelves last week. Weeks earlier, a prominent Sunday newspaper had boldly asserted on its front page, “Mbeki Is Back.”

    But all this interest in Mbeki, who was in power from 1999 to 2008, is really about disinterest in the current president, Jacob Zuma. It’s about concerns that Zuma might be reelected as president of the African National Congress later this year, which would pave his way to a second term as South Africa’s president in 2014.

    Zuma’s critics — like the leadership of the A.N.C. youth wing led by Julius Malema and trade unionists who think the A.N.C. is not being sufficiently pro-worker — aren’t even hoping for Mbeki’s return: the Constitution prohibits him from serving another presidential term, and he doesn’t seem very interested in heading the A.N.C. again. They are probably trying to make room for another candidate, like the current deputy president, Kgalema Motlanthe.

    http://latitude.blogs.nytimes.com/2012/03/22/in-south-africa-the-latest-political-fad-is-being-down-on-zuma-and-high-on-mbeki/#

  • ozonblue

    Prof. Chameleon:

    “Leaving aside for the moment that the NPA is not part of government as suggested by the statement, but in fact an independent body that must make decisions on whether to charge and prosecute somebody “without fear, favour or prejudice,”

    Now just look what I found in the Internet:

    “It is against this broad principle of abuse of process that the conduct of Mr McCarthy must be seen and tested. The question for close consideration is encapsulated in expressions such as ” so gravely wrong”, “gross neglect of the elementary principles of fairness”, “so unfair and wrong”, “misusing or manipulating the process of the court.” If the conduct can be so categorized, it would be unconscionable for the trial to continue.

    Using one’s sense of justice and propriety as a yardstick by which McCarthy’s abuse of the process is measured, an intolerable abuse has occurred which compels a discontinuation of the prosecution.

    What actually triggers the abuse of process is a major determining factor, because it is that trigger which determines the purpose of the abuse and reveals whether the conduct in question is directed at a legitimate or illegitimate purpose.”

    Moketedi Mpshe

    http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71619?oid=124273&sn=Detail

  • ozonblue

    Maggs Naidu – Zuma must go! says:
    March 22, 2012 at 21:25 pm

    “It’s about concerns that Zuma might be reelected as president of the African National Congress later this year, which would pave his way to a second term as South Africa’s president in 2014.”

    Bullshit. Much like the morally duplicitous propaganda continuously manufatured up by the author of this blog.

    It is really about concerns form the [fascist] middle class + big business that Cde. Zuma will continue to pursuit leftist policies including but not limited to a National Health Insurance, Resource Nationalism and the developmental State.

  • sirjay jonson

    @Maggs Naidu – Zuma must go!
    March 22, 2012 at 21:25 pm

    Actually Maggs, at least JZ is a known, as fortunately (for the eventual health of SAfrica) he is quite evidently out of his depth, meaning his decisions will always fuel the intelligent and the judicial to resist. Molanthe scares me even more because of his support for the youth league. Therewith he has sold his soul. Devious ambition is evident. Is that not obvious?

    My choice would be Ramaphosa. But that’s just wishful thinking I suppose.

    Remember, this is just a short period in the history of SAfrica, thus our vigilant support of the Constitution for its necessary longevity is so vital. The presidency, even the party passes in time. The Constitution, however, mustn’t, rather it must remain grounded in its values and law. It is the best anywhere, and globally acknowledged by those wiser than our new self interested pseudo-elite.

    To prevent unfolding tyranny is always a challenge. thus the rule of law. Since we, all of us, will pay a price for either continued freedom or dictatorship, we are all called to attention now, not tomorrow, as in ‘all hands on deck’.

  • Dmwangi

    @Loudly South African:

    See the exchange I had w/Brett on the blog from 15 March.

    Brett is very much an ‘entitlement’ white. He feels insecure when he encounters a black person who is more successful or intellectually endowed. He rightly wonders about to what degree his own lot in life is attributable to personal character failings if a poor rural boy from Kenya, born to half-literate parents, can outcompete him in the social, economic, and intellectual realms. The resulting existential angst causes him to retreat into fantasies about white moral superiority.

  • ozonblue

    Dmwangi says:
    March 22, 2012 at 22:53 pm

    I think the problem with Brett is that he is just breathtakingly stupid. Just like the maggot and prof Chameleon.

  • Mikhail Dworkin Fassbinder

    Dmwangi, I suspect that both Brett and Maggs are secretly envious that I, having been born in a struggling but prosperous farmyard in Nazradodz, and whose parents spoke scarcely a word in any language, ultimately completed my post Doctoral studies in advanced hermeneutics in Slovenia, only to become chief economist at Goldman Sachs at the tender age of 47.

    How do you explain that?

  • ozonblue

    And now the the Evil, Unamerican, Stalinist, Corrupt Zuma regime wants fair and decent health system for all South Africans.

    http://www.iol.co.za/news/south-africa/nhi-pilot-districts-named-1.1261974

  • Maggs Naidu – Zuma must go!

    Mikhail Dworkin Fassbinder
    March 22, 2012 at 23:20 pm

    Hey Dworky,

    “How do you explain that?”

    Miracles are known to happen.

    I know of a guy (not Dm) who was born in a barn to parents who were celibate – so as you can guess, his life was so boring that he hung out with other okes and a prostitute or two.

    But he went on to achieve great things in life – like making public speeches, drinking wine and eating other peoples bread.

    In the end he even got to speak directly with our CJ!

    WDYS now?

  • Dmwangi

    @Maggs and Dworky:

    The same amateurish satire and sardonic pablum we’ve come to expect. Any chance you’ll tire of it soon?

  • Maggs Naidu – Zuma must go!

    Dmwangi
    March 22, 2012 at 23:32 pm

    Hey Dm,

    To call my story (which is better than your story or Dworky’s story) “[t]he same amateurish satire and sardonic pablum we’ve come to expect” is bordering on blasphemy.

    Mine’s a true story – yours and Dworky’s is more in line with our CJ’s story i.e. a figment of wild imaginations!

  • ewald

    @Prof: I will appreciate if you could perhaps clarify. I am not in the legal profession but do understand that one court can take a different view on a matter than another and that is happening all the time (something JZ is totally perplexed by). But I was wondering in this case why did the High Court judge have a different view than the SCA? Did he not understand the law as he is supposed to, was it an oversight from his side or was it really a disagreement on a ‘finer’ point that is understandable from a complex legal perspective?

    Also, in cases like this (which to me appears to be of ‘national importance’) shouldn’t there be more than one judge deliberating on it or should he not have had an assessor (I think that is what they are called) to give perhaps input that might have changed the verdict? Or do judges talk to each other as a matter of course in a case like this anyway to bounce opinions or are they working in total isolation?

    Baie dankie!

  • Maggs Naidu – Zuma must go!

    ewald
    March 23, 2012 at 2:51 am

    LOL Ewald,

    “something JZ is totally perplexed by” – it seems that it doesn’t take much to get JZ totally perplexed.

    Anyway –

    But judging remains an extremely complex, sensitive and difficult exercise. It is not a mechanical exercise. That is why there are often differences of opinion. Many express the view that judges must be objective in making their decisions. In my view however there is a difference between objectivity on the one hand and independence and impartiality on the other. The latter are essentials but the value of the former is doubtful. All judges are human beings who determine issues that concern other human beings. An element of subjectivity in the decision-making process is not only inevitable but in my view necessary. The job of a judge is not to pretend objectivity but to be continuously vigilant to ensure that decisions are not the product of over-subjectivity. We can never escape our own humanness.

    The fact that judges differ with each other is therefore not something to bemoan. Differences of opinion are vital to a healthy judiciary and to the development of a vigorous jurisprudence. As has been said many times, the dissent of today could be the majority judgment of tomorrow. I would be perturbed indeed if eleven judges of the Constitutional Court agreed with each other judgment after judgment, year after year. This would be an indication of a judiciary that is not sufficiently representative, and lacking the strength required for true independence and impartiality.

    http://constitutionallyspeaking.co.za/justice-zac-yacoob-on-the-dynamic-constitution/

  • Brett Nortje

    Dmwangi says:
    March 22, 2012 at 22:53 pm

    LOL! Projecting, are we?

    I thought our dispute started when you slammed Sirjay, and I pointed out that Sirjay’s moral awareness was self-evident.

    He had come to South Africa from a comfortable First-World existence to help South Africans feed themselves, unlike you who fled from the rigged elections ineptitude maladministration political turmoil moral decay and economic collapse of a failed state to feed on South Africans.

    I then asked you to list some of your good deeds just for comparison at which point you became hysterical.

    As you can see, LSA, the blow to mwangi’s fragile ego was such that he is still pursuing the point. LOL!

  • Maggs Naidu – Zuma must go!

    Brett Nortje
    March 23, 2012 at 8:04 am

    Hey G,

    “He had come to South Africa from a comfortable First-World existence to help South Africans feed themselves”

    Crap man!

    Sirjay came here because South Africa is the place to be.

  • Sine

    Maggs Naidu – Zuma must go! says:
    March 22, 2012 at 20:30 pm

    @Maggs

    It might be, in countries like Britain, where they have “pure democracy”. However, I still doubt that as well because judicial review is also found in English law and in fact, South African courts used English law decisions to develop our judicial review whilst we were labouring under Parliamentary soveriegnty before 1994. (I quote the DA et al v NPA et al case which was delivered on 20 March 2012 as my authority )

    Coming back to South Africa. In South Africa we have what we call “constitutional democracy”. This means that it is normal, in fact, it is a constitutional requirement for our courts to review and set aside all decisions which are not constitutional, regardless of who has taken the decision. Our courts would be failing in their constitutional duties if they were to let the likes of Mpshe to take unconstitutional decisions with impunity. A judicial review, therefore, is not anti-democratic. It is actually foundational to our constitutional democracy. It is an important cog to guard us against people in power from oppressing us by taking unconstitutional decisions.

  • Maggs Naidu – Zuma must go!

    Sine
    March 23, 2012 at 8:46 am

    Hey Sne,

    “This means that it is normal, in fact, it is a constitutional requirement for our courts to review and set aside all decisions which are not constitutional, regardless of who has taken the decision. …”

    Agreed.

    Add to this that “the majority are not necessarily correct”.

    This informs my view that courts are (or should be) “anti-democratic”.

  • Sine

    Maggs Naidu – Zuma must go! says:
    March 23, 2012 at 9:01 am

    @Maggs

    You are missing the point by a huge margin. A constitutional democratic state does not focus on the majority who are already protected by the democratic processes. A constitutional democratic state focuses on protecting the needs of the minority against the majority. The minority protection, in this case in the form of a judicial review, is foundational to the democracy we are enjoying in our country. Minority protection is not an exception, let alone “anti-democratic”. It is the object of our democracy Maggs. Without it, we would not have a constitutional democracy Maggs.

    To address your sentence that you want me to add and which you have thereafter used to support your misplaced view, the majority may even be correct but if what they want or are doing trumps the minority rights then it should be reviewed by our courts and to have it declared unconstitutional if our constitution does not allow it.

  • Gwebecimele

    Between Sirjay and DM, WHO QUALIFIES TO BE A “REFUGEE” in the Western Cape.

  • anton kleinschmidt

    @ Sine…..it is a great pity that people with your intellectual nous no longer participate in these discussions. A great pity and Pierre would do well to contemplate this reality

  • Gwebecimele

    From Blue light German sedan or SUV to a INYALA.
    From podium to the people.

    http://www.timeslive.co.za/local/2012/03/23/gran-goes-for-nathi-mthethwa-head-on

    VIVA GOGO. BAYADELELA.

  • Gwebecimele
  • Andrew

    It is often stated that justice must not only be done, it must be seen to have been done… or something like that.

    The NPA’ s hands in the prosection is therefore either clean or not. Moketedi Mpshe thought it was not and declined to prosecute Zuma.

    This may be the correct decision. Did the CC not take the view that the Hawks must be ‘obsessively’ independent? Should not the NPA be obsessive about having ‘clean hands’

    It does seem though that on the facts/evidence Zuma should probably have been prosecuted, if the NAP had ‘clean hands’

    I suspect that even if the DA win the case against the NPA, the final decision to prosecute may be refered back to them (NPA) and they could still decline to prosecute?

  • Sine

    @ Anton, thanks bro.

    Andrew says:
    March 23, 2012 at 10:52 am

    @Andrew

    I understand your concerns. However, what I verily believe is the most important outcome from the application by the DA is the possibility of the public knowing the reasons for the NPA’s decision to decline its constitutional mandate, prosecution. By declining prosecution, not only did NPA ignore its constitutional mandate but its also created the impression to the public that with enough money and power, a potential convict would be allowed to escape prosecution. In effect, it created the impression that Pres Jacob Zuma is more equal than the rest of us, not just in terms of how much money and power he has but also in the eyes of the law. That is a dangerous impression to create and it militates against the provisions of our constitution.

    Remember the quote you have used above justice not only being done but that it must also be manifestly be seen to be done applies here as well. It might well be justified for the Pres to escape prosecution but we want to SEE that. So far we do not see. We are just seeing the evidence of the NPA giving him special treatment, thereby telling us as the public that in the eyes of the law, we are not his equals. The NPA must remove that impression by releasing the basis of its decision to decline prosecution. As things stand, in the eyes of the law, Zuma is more equal than all of us South Africans comnbined!

  • Maggs Naidu – maggsnaidu@hotmail.com

    Sine
    March 23, 2012 at 9:34 am

    Hey Sne,

    In simplest (but caricatured) terms, if democracy entails the electing leaders to roll out the aspirations of the majority, then judicial review is by its very nature anti-democratic.

    There’s some interesting reading on this subject which I’ll find later.

    Here’s one – http://www.greenbag.org/v7n3/v7n3_review_somin.pdf

  • Sine

    Maggs Naidu – maggsnaidu@hotmail.com says:
    March 23, 2012 at 11:27 am

    @Maggs

    Your latest post does not take the matter forward. Therefore, I will not reply to its contents as well.

  • Mikhail Dworkin Fassbinder

    @ Anton

    “it is a great pity that people with your intellectual nous no longer participate in these discussions.”

    Anton, I do my best to contribute, in the limited time I have available. But you are right to suggest that the profusion of irrelevant diversions and frankly absurd bombast posted by persons like Maggs, Brett and OZ tends to crowd out the sensible, nous-derived, thoughts that once characterized this blog. That is why I continue to respectfully implore them to create a “satellite” blog, to which all of us can turn when we want light relief.

    Thanks.

  • Dmwangi

    @Brett:

    Was just giving my armchair psychological assessment. Don’t worry, ego is probably much too large and impervious to be damaged.

    Feed on South Africans? Hmmmm…. Strange, given that my company derives the majority of its revenues outside SA.

    I yield. You and Sirjay are modern instantiations of St. Francis and Thomas More, while all blacks are morally bankrupt and on the road to perdition. Sirjay came here to save us from ourselves. I’ll let you cling to that delusion since now that blacks run things it’s all you’ve got.

    Cheers mate!

  • Maggs Naidu – Zuma must go!

    Hmmm!

    Drunken judgements out, sober judgements in.

    Mpumalanga [ANCYL] provincial secretary Lucky Ndinisa intimated that Zuma should have his day in court and cautioned against attacking the judiciary.

    “The judges are independent. Let them do their work. The outcome [of the appeal court case] is in the best interest of the country. Let the law take its course,” he said.

    http://mg.co.za/article/2012-03-23-appeal-court-ruling-exposes-rifts

  • ewald

    @ Maggs, thanks for your reply and I appreciate what Justice ZY said, but I was hoping for something a little bit more specific as to what the issue was in this case, or will it be too much legalese for a layman? :) Or will I assume it really is a disagreement on a ‘finer’ point that is understandable from a complex legal perspective?

  • Paul Kearney

    It’s interesting to see how people like Maggs seem to think that democracy is following the majority’s wishes – “In simplest (but caricatured) terms, if democracy entails the electing leaders to roll out the aspirations of the majority, then judicial review is by its very nature anti-democratic.”

    I was interested to hear Dullah Omar’s comment (some time ago) on a possible death penalty referendum which basically indicated that even if the majority voted in favour, it was still unconstitutional. He then used another, maybe more relevant example. If a referendum showed that a majority felt that all whites (Indians for you Maggs) should be expelled from South Africa, should it be undertaken by government? He suggested not, as it would be unconstitutional, what does SA (and the PdV muppets) think?

  • Maggs Naidu – Zuma must go!

    Paul Kearney
    March 24, 2012 at 6:34 am

    Hey Paul,

    I think that Dullah Omar’s statement on the death penalty was misunderstood.

    Even if 100% of South Africans wanted the death penalty it won’t come back unless there are changes to our Constitution more specifically 12 …(e) not to be treated or punished in a cruel, inhuman or degrading way.

    It’s not clear to me how such a change to our Constitution could be made.

    Re a referendum around expelling South Africans – that’s a really silly notion – it’s unlikely that Omar would have talked through that while sober or alive – so I’ll skip it (or keep it in the kitty for entertainment with OB and Dmwangi).

  • Dmwangi

    @Maggs:

    More asinine fatuousness.

    ‘(e) not to be treated or punished in a cruel, inhuman or degrading way.’

    It is not up to judges to give substantive content to the meanings of these adverbs. The essence of democracy is letting the ppl decide what constitutes ‘cruel,’ ‘inhuman,’ ‘justice,’ ‘dignity,’ etc.

    Now let the spigot of speciousness flow….

  • Maggs Naidu – Zuma must go!

    Dmwangi
    March 24, 2012 at 9:33 am

    Hey Dm,

    “It is not up to judges to give substantive content to the meanings of these adverbs.”

    LOL!

  • Maggs Naidu – Zuma must go!

    @ Dworky,

    He is young and has learned!

    Malema says sorry to those he offended

    Even OB got a mention :

    “I would die in defence of the white minority — they must enjoy the same rights as Africans. But when we say we must share, it doesn’t mean we are fighting — we are actually protecting you,” he said.

    http://mg.co.za/article/2012-03-24-malema-says-sorry-to-those-he-offended

  • Dmwangi

    @Maggs:

    Sorry Mr. Grammarian but while the provision you quoted uses those terms as adjectives, when they are interpreted by judges, they must, by necessity, be construed as adverbs. That is because no one knows what the hell an instantiation of the noun in that statement–‘way’– looks like. (The whole thing is poorly formulated, actually.) Therefore, I presume the judge conceptualises it as: …has the right not to be treated cruelly, inhumanly, etc.

    One is trying to ascertain particular characteristics of action– ‘not to be treated cruelly,’ ‘not to be punished inhumanly,’ etc.– that are forbidden. One is not trying to determine the characteristics of an object (I.e. ‘a cruel way,’ ‘an inhuman manner,’ etc.) when pondering if putting someone to death is ‘to treat’ them ‘inhumanly.’

    Now on with your sophist mendacity….

  • Maggs Naidu – Zuma must go!

    Dmwangi
    March 24, 2012 at 18:20 pm

    LMAO!!!

  • Dmwangi

    @Maggs:

    In between your homosexual giggling, try ratiocinating the finer linguistic points. Mental exercise is not unhealthy my friend.

  • Maggs Naidu – Zuma must go!

    Dmwangi
    March 24, 2012 at 18:49 pm

    Hey Dm,

    That’s spectacular stuff.

    WHITE people are impressed.

    It’s almost certain that you are “the kind of Black” who Dworky, Brett, JR would allow themselves to befriend.

    Not OB – he’s just a fart that would be friends with anyone!

  • Mikhail Dworkin Fassbinder

    @ Maggs

    “It’s almost certain that you are “the kind of Black” who Dworky, Brett, JR would allow themselves to befriend.”

    Maggs, speaking only for myself, I would very much like to befriend you, even though you lack the gold-plated graduate degree that Dmwangi has — and that, speaking technically, you are not really “Black” anyway!

    Thanks.

  • Maggs Naidu – Zuma must go!

    Mikhail Dworkin Fassbinder
    March 25, 2012 at 9:25 am

    Dworky,

    “speaking technically, you are not really ‘Black’ anyway!”

    It’s really time for you to start your own “satellite” blog!!!!