If Jacob Zuma is ever tried and convicted, it would definitely not be because of the quality of his legal team. These guys know what they are doing. In their Heads of Argument for the appeal of the Nicholson judgment to be heard in the SCA today they pull out all the stops to try and show why Nicholson’s judgment was correctly decided.
At the heart of the matter is the question of how one should interpret section 179(5(d) of the Constitution, which states that the National Director of Public Prosecutions “may review a decision to prosecute or not to prosecute, after consulting the relevant Director of Public Prosecutions and after taking representations” from the accused person; the complainant; and any other person or party whom the National Director considers to be relevant.
Zuma’s lawyers argue this section must be interpreted broadly to refer to any decision by the head of the NPA to a review any decision to prosecute or not to prosecute – no matter who actually made the initial decision. The NPA lawyers argue that the section only applies to a review of a decision by any of the Directors of Public Prosecution in the provinces because this section is meant to safeguard the autonomy and integrity of the provincial directors and not to safeguard the rights of the accused – whose rights kick in only when the trial commences.
Zuma’s lawyers argue that the National Director cannot review decisions to prosecute or not to prosecute, save in the circumstances provided for in section 179(5)(d). If the NPA interpretation is followed, so they argue, this would mean the National Director can only review decisions to prosecute or not to prosecute taken by the provincial directors. But that would mean the National Director could not review such decisions taken by prosecutors or by a previous National Director and this would be absurd.
The interpretation of the NPA would then mean the decision by Pikoli or Mpshe to “review” the decision of Ngcuka not to prosecute Zuma would be impossible and that Zuma could never be charged again after Ngcuka decided not to prosecute. Surely, they say, such an interpretation would be absurd and would detract from the scheme of the Constitution which created the NPA as the single overarching prosecuting authority.
Moreover, they argue that every decision to prosecute or not to prosecute will resort under the jurisdiction of one of the provincial directors and that section 179(5)(d) merely requires that the relevant Director in whose jurisdiction the decision was made must be consulted before the National Director could review a decision by anyone in that jurisdiction to prosecute or not to prosecute.
According to Zuma’s lawyers the purpose of S179(5)(d) is not to balance respect for the autonomy of the provincial directors against the powers of the National Director. Instead, it is to protect the interests of the accused and the complainant when a decision to prosecute or not to prosecute is reviewed. They also argue that in effect this duty to take representations should also apply to ordinary prosecutors and provincial directors.
These arguments seem quite plausible. But they are not foolproof. First, the interpretation of s 179(5)(d) proffered by Zuma’s lawyers fail to explain which “relevant Director of Public Prosecution” would have to be consulted when a decision to prosecute or not to prosecute was not made by any prosecutor or provincial director, but by the National Director himself. The National Director does not resort under the jurisdiction of any Provincial Director so he would have to consult with himself. This would also be an absurd interpretation of the section.
Second, the NPA gave a very convincing explanation of the origins of this section, arguing that it was aimed at safeguarding the autonomy of Provincial Directors. The section could very easily be interpreted to mean that to safeguard that autonomy, the National Director had to consult the regional directors as well as the accused and the complainant whenever it reviewed a decision that fell within that relevant provincial directors jurisdiction. This would seem the most logical explanation of the section as it avoids the absurdity that the National Director would have to consult HIMSELF or his predecessor (who would not be in the employ of the state anymore!) when he wanted to review a previous decision by the National Director.
Third, it is not at all clear whether the decision to prosecute Zuma was a “review” of a previous decision taken by Ngcuka as the High Court threw out the case and there was therefore no case to review. The NPA will argue that the decision to prosecute Zuma was taken by Mpshe and that this decision was not a review at all – even if the interpretation of section 179(5)(d) preferred by Zuma’s lawyers is followed.
This interpretation would also be more in line with Constitutional Court jurisprudence about the rights of the accused, which seems to focus heavily on the rights of the accused during the trial and seem to suggest that it is at trial where the rights of the accused must really be jealously safeguarded.
It will be a fascinating day in court today – also because Mbeki’s lawyers will get a chance to deal with the other aspects of the case – namely the findings that Nicholson seems to have made about the political interference into the decision of the NPA not to charge Zuma and then to charge him. It’s interesting to note that Zuma’s lawyers are trying to put some distance between themselves and these findings as they probably know this is a very weak aspect of their case.
I can’t wait for the SCA to hand down judgment in this legal soap opera. Watch this space!
sigh – all these immaterial nitpicking about constitutional details. Why don’t we just lynch Zuma now and get it all over with ?
I have posted the comment below before reading this post. So I’ve decided to copy it here.
Anonymouse // Nov 28, 2008 at 10:34 am
Bongs – The following paragraph in the heads is legally (note that I do not alude to the morality issue) flawed:
“(a) “A decision to prosecute or not to prosecute” – The sub-section contains absolutely no qualification or restriction on the phrase “decision to prosecute or not to prosecute”. Prima facie it relates to any and all such decisions which the NDPP reviews. Whilst it is not expressly spelt out who made the decision to be reviewed by the NDPP, it obviously refers to a decision of the Prosecuting Authority, following on S179(2) which vests the power to make such decisions in the Prosecuting Authority after creating it and the components thereof being the NDPP, DPP’s and Prosecutors (S1791(1)). See also the head note to S179 – “Prosecuting Authority”, which is then described with reference to the NDPP, the DPP’s and prosecutors (S179(1)). Interpretation in the context of the provision is the first rule of construction; S179 deals with the creation and functions and powers of the Prosecuting Authority:”
The phrase “decision to prosecute or not to prosecute” in s 179(5)(d) cannot be divorced from the phrase directly following it, namely “after consulting the relevant Director of Public Prosecutions”. That phrase clearly indicates that the person whose “decision to prosecute or not to prosecute”, which may be reviewed under this provision, is someone who fits the description of “the relevant Director of Public Prosecutions”. To read in = “Whilst it is not expressly spelt out who made the decision to be reviewed by the NDPP, it obviously refers to a decision of the Prosecuting Authority, following on S179(2) which vests the power to make such decisions in the Prosecuting Authority after creating it and the components thereof being the NDPP, DPP’s and Prosecutors (S1791(1)). See also the head note to S179 – “Prosecuting Authority”, which is then described with reference to the NDPP, the DPP’s and prosecutors (S179(1)). ” = is fanciful and is inconsistent with the phrase that I have referred to. If a NDPP reviews his/her own decision to prosecute or not to prosecute, how can he/she consult him-/herself? When a NDPP reviews his/her predecessor’s decision to prosecute or not to prosecute, how can he/she consult the relevant (note “National” is not used) Director of Public Prosecutions if that person is no longer a DPP? What if that person who took the decision is totally unavailable, unwilling to consult with the NDPP or dead? If, however the decision to prosecute or not to prosecute, which falls to be reviewed, has been taken by a DPP (not an NDPP), and the person is no longer available to be consulted, the words “relevant DPP” that should be consulted are wide enough to include the current incumbent of the post. But, if that person was an NDPP, again, how can he/she coponsult him-/herself?
*sigh* -such an immaterial comment that adds nothing to the discussion.
Unless I am totally missing the mark, the section clearly states that the NDPP MAY review a decision, and not MUST. It is therefore discretionary.
Secondly, it seems to me when reading the whole of S179(5), that S179(5)(d) aims to give the NDPP the right to intervene/review in instances where the prosection process or policy directives were not adhered to. But the section does not say the NDPP must review decisions (regardless who took the decision). It just seems to set out who all needs to be consulted if the NDPP decides to review a decision.
Zuma’s lawyers really seem to be grasping at straws here. And not very good ones.
I find it disturbing again.
Jeppe’s town masscre fellows have received four life sentences each- rediculous?
I have noticed one most criminal matter are adjudicated by black judges, most of the civil cases are given white judges – I wonder why? ‘the judge Lewis effect’!
Whites stand by and look at the black judge giving harshest decision to his fellow black brothers – I guess they say “let the baboons sentence each other”
The Jeppe guys don’t deserve four life sentences each .
was the judge trying to impress his white fellows? more or less so tough he’s stupid then.
The white fellow who killed more than 10 black people only got 176 years behind bars – the motive of the killing was purely racism
Yes these guys might have done wrong but they acts were motivated by poverty that we see our millions of people living under – the situation which was mainly created by whites in this country
Now I know why four life sentence each fpor the Jeppe’s guys simple because they killed white cops, isn’t so?
What I find disturbing is the judge is black – was he under duress? was he trying to impress white judges? is he anti-revolution? this judge is one of the rotten potatoes surely we don’t need such black judges
these guys were suppose to get at least 10 – 20 years behind bars given the motive of their crimes
another miscourage of justice unfirtunately by the black judge this time around – another fresh pain going down into my heart and i will grow with it as a young black lawyer hoping that one day i will get there and change the table
all these things go down to my heart and they will live with me forever!
I will never rest until i see real justice being done to the majority of our people – God wiil help me get there!
@ lindelani maseko // Nov 28, 2008 at 11:17 am
Uyanyanyisa we Lindelani Maseko, ngendlela oyisiphukuphuku ngaso, ngifikwela amahloni ukuzwa ukuthi uwumuntu omnyama. Lo mbhedo owushoyo awufani nemfundo okuthiwa unayo. Sengikhalela imali yabazali bakho we skhotheni ndini.
I fail to see why this constitutional nitpicking is necessary if Zuma is innocent. Surely, as an accused with all the rights and privileges that go along with it, he would get ample opportunity to make his representations during the trial? Why is Zuma trying to nook and by crook to prevent going on trial? Could it be that he is already effectively guilty of a bi-lateral crime – of the same one that caused Sheik to serve a sentence?
Lindelani, as a lawyer you should know that each case is judged on its own merits. It is absurd to compare the two cases. You should also know that motive is not relevant in SA law.
And then lastly, I wonder what the relevance of your comment is to the topic at hand?
Lindelani
shame
Heidi the best way to deal with idiots is failure to engage. If you argue with idiots, they drag you down to their level and beat you with experience.
True that!
Garg_Unzola: “Don’t feed the trolls” is the generally-approved warning for keeping serious blogs clear of mind-numbingly irrelevant side-tracks.
Lindelani – which colour judge gave you your very harsh life sentence of rank stupidity?
On the other hand, lindelani (an egregious troll or two if ever I saw one or two – for there are clearly two personalities at work in the posts made under that name) seems to have acquired the status of resident buffoon here, and I personally would not like to see the back of him, her or them. By monitoring responses to the lindelani posts, one can gauge fairly well the length of fuse that new contributors have, as well as the extent to which they are inhibited (if at all) by notions of what it is “politically correct” to say.
Garg Unzola // Nov 28, 2008 at 11:32 am
I fail to see why this constitutional nitpicking is necessary if Zuma is innocent. Surely, as an accused with all the rights and privileges that go along with it, he would get ample opportunity to make his representations during the trial? Why is Zuma trying to nook and by crook to prevent going on trial?
What JZ is doing is merely excercising his constitutional right like any other citizen. Much as he can make representations in court like you would want him to do, he has an elction to do it before his appearance. Is not a matter of him being guilty or innocent but just an enjoyment of his rights.
We certainly can not blame him for exploring sections mentioned by Prof above.
Claruty = Is Former President Mbeki applying to intervene, in essence, will the legal team be arquing the contents straight away OR they are just still applying, and if so, Will they then be given an opportunity, with a new date to argue their case in details, OR they are arguing straight away today?
The intervention by peter @12.18pm (it is not a contribution, for it contributes nothing to the debate) is a prime example of troll-feeding. It serves no purpose but to inspire the troll to new phrenzies and is not redeemed by any tincture of amusement – whether of low comedy or refined wit. It is interventions such as that which will cause this blog to implode under a tawdry mass of name-calling and puerile jibes.
Lindelani, please do not comment again because you only show you idiotic sense of reason. As a lawyer to make an argument like that is just plain stupid. What you are saying is that the judge is incapable of making up his own mind and apply the law. I do not know if you actually read, but crime is very very bad in SA. I am sure the judge is attempting to send a message to all and sundry out there who may be thinking of doing something similar. On the other hand, to use the excuse of poverty is becoming old. What you are saying is that if a poor person commits a crime that is excusable??? What about the victim. The Jeppes Town criminals cannot claim to be poor because they could afford to buy those guns and ammunition or did it fall out of the sky.
As a lawyer you should be ashamed of yourself and to claim you are a champion for the so called black course is a disgrace. You are not doing any black person a service by your idiotic reasoning. Sies Man
THE FACT OF THE MATTER IS WE NEED TO IMMEDIATELY CHANGE OUR LEGAL STRUCTURES.
ALL OUR LEGAL STRUCTURES NEED TO BE CONTROLLED BY BLACKS (THOSE WHO HAVE NOT BEEN BRAIN WASHED BY EDUCATION) WE NEED JUDGES WHO WOULD REVERSE THE IMBALANCES
ALL LEGAL STRUCTURES MUST BE CHAIRED AND CONTROLLED BY THE MAJORITY – BEING US BLACK PEOPLE
I DON’T UNDERSTAND WHY WE STILL HAVE MORE (MAJORITY)WHITE PEOPLE RUNNING THESE STRUCTURES OR IS IT BECAUSE OF THE JUDGE LEWIS EFFECT
WE ARE THE MAJORITY IN THIS COUNTRY YET WE HAVE THE MINORITY WITHIN LEGAL SPHERE TELLING US WHAT TO DO!
WE NOT DOING ENOUGH BLACK BROTHERS!
WE ARE STILL CONTROLLED BY THESE WHITES AS FAR AS CRUCIAL AREAS ARE CONCERNED
IS IT BECAUSE WE BRAIN WASHED BY THIS SO CALLED EDUCATION? EDUCATION WILL NEVER CHANGE ME
I URGE YOU BLACK BROTHERS NOT TO BE BRAINWASHED BY THIS SO CALLED EDUCATION
EDUCATION SHOULD EMPOWER AND EQUIP US TO FIGHT THE ENEMY (WHITE), IT SHOULD NOT BRAINWASH US TO SUPPORT THE ENEMY
LADIES AND GENTLEMENT: I AM NEXT YEAR GOING BACK TO PRACTICE
FOR YOUR INFORMATION: I’LL BE WORKING AS AS ASSOCIATE DIRECTOR FOR A 100% OWNED BLACK COMPETENT LAW FIRM WITH THE VIEW TO OPEN MINE AS SOON AS I CAN
I HAVE WORKED FOR STANDARD BANK (3SIMMONDS STREET- STRUCTURED DEBT FINANCE 4TH FLOOR LEGAL DIVISION AS AN ASSISTANT LEGAL MANAGER)
I AM WORKING FOR INVESTEC (SANDTON-PRIVATE BANK) I AM RESIGNING AND WILL BE GOING BACK TO PRACTICE EARLY NEXT
FOR THOSE OF YOU WHO THINK I AM NON-EXISTING ASK “Z” ONE OF THE BLOGGERS IN HERE
HE’S GOOGLED ME SO MANY TIMES
AM NOT ACCOUNTABLE TO ANYONE IN HERE!
I suspect lindelani is a pro-Mbeki faction plant.
I rest my case. If there is one thing worse than a troll, it is a troll WHO SHOUTS. I blame Peter for this.
dontgetmestarted: you supercilious little wanker, I hope are you feeling better now.
PS – Please spell check your posts, nothing adds to the tawdry feel more than poor spelling by posters.
@Mel
Yes, I agree that Zuma is free to explore all avenues in his private capacity. Essentially, an allegation for taking a bribe is a private offence and it is not in the public interest to spend tax money on Zuma’s legal fees. It is however in public interest for an accused person to step down from his position in public office, whether he is guilty or not, and to allow for a full public investigation into the allegations. JZ has not been on trial and we have not heard the end of the arms deal in a long time, plus he did not step down but had to be forced. That means he has no dignity and he cares very little for anyone else except JZ.
By all means, JZ is free to visit all the courts in the country provided that he does so with his own private funds. If he can’t afford them, then his precious rights are also provided for by our system. He can get a state lawyer (preferably a black one to make Lindelani happy) and pursue the avenues available to him in as far as all of us are equal before the law.
For the government to foot his elite (private and very much not consisting of government lawyers) legal team is unethical, because the government did not foot the bill for the Waterkloof Four, to use an extreme example. Certainly, they also had their turn in courts and visited all the courts in the land, but they did not do so with tax money.
Ultimately, they did go on trial, which is what I would like to see:
JZ going on trial is the only opportunity in which he will clear his dirty laundry in my mind. The more he evades proving his innocence, the more guilty he appears in my books.
What you are saying is JZ is seeking a political solution to a very straight forward criminal matter. He is either guilty of racketeering and fraud, or not. Whether others are also to blame is irrelevant. Whether there are loopholes in the manner in which he was charged is irrelevant and exploring these are wild goose chases which have nothing to do with determining his guilt or proving his innocence.
Unzola!
I dont think you understand the repercussion of your argument. For you to equate JZ to Watergloof four denotes your ignorance. JZ was the deputy president when this allegations emanated against him. That should say to you if not ignorant that he is entitled to an intervention by the state, much as TM is with his application against the judgement by Nicholson.
There you go again with your far-fetched nonsense of political solution on difficulties besetting JZ.! Perhaps you need to explain how political was the legal route undertaken. An application was brought before court to invalidate the charges preferred aginst him by the NPA. How political was the process?
” It is however in public interest for an accused person to step down from his position in public office, whether he is guilty or not, and to allow for a full public investigation into the allegations. JZ has not been on trial and we have not heard the end of the arms deal in a long time, plus he did not step down but had to be forced ”
You deliberately ignore the most cardinal right of an accused person regarding Pressumption of innocence until prooven guilty. Had JZ resigned from office, that would have amounted to an admission of guilt by him and i do not think that was ideal. Remember that TM also fell victim of your idea by firing JZ before a court of law pronounce judgement on this matter.
Unzola!
JZ will go on trial if legal remedies currently exploited does not yield fruitfull results. He has on a number of times,much as the ANC has. indictaed that should he be found guilty of this much publicied charges. he would resign. The ANC has also asserted its position on this issue. There is no way JZ may be evading trial.
mel // Nov 28, 2008 at 2:42 pm
“Had JZ resigned from office, that would have amounted to an admission of guilt by him and i do not think that was ideal. Remember that TM also fell victim of your idea by firing JZ before a court of law pronounce judgement on this matter.”
……………………………………………………………………………………..
I am almost positive that you did not read President’s speech when he fired or dismissed Zuma because he explained the necessity thereof! Had Zuma been the Deputy-President of the ANC only then he would not have been fired by Mbeki. However, he was the Deputy-President of the Republic of South Africa. Such a portfolio necessitated that he be fired when he refused a request to step-down until his name was cleared of the allegations. This was done to maintain respect for and the confidence in the Presidency and of the country as a whole in the eyes of the civilised nations of the world. The same civilised nations which Zuma himself was asking to come invest here in South Africa to develop our economy and our country. I can go on and talk about the principles of openness, accountability, etc. but all those were explained by Mbeki in that speech. I can post a copy here if you cannot access it now. Therefore, your argument is misplaced!
Bongs – According to News 24:
>Bloemfontein – There was never any decision not to prosecute ANC president Jacob Zuma “forever”, Advocate Wim Trengove told the Supreme Court of Appeal on Friday.
In his August 2003 finding that there was prima facie evidence of corruption against Zuma, but not enough to win the case in court, former NPA boss Bulelani Ngcuka had made it clear that “this is our decision for now”, Trengove submitted.
“He never made a promise that no charges would be laid in the future.”<
I think I’ve also said this before based on JZ’s papers filed for the original application before Nicholson J. In the founding papers reference was made to the fact that Ngcuka said that the decision not to prosecute at that stage was not necessarily final, but that it could be reversed somewhere in the future depending on further developments. Further developments did in fact take place, Shaik was convicted and the trial court’s finding upheld in the SCA and the CC.
Firstly, I don’t deny the presumption of innocence. You forget that Jacob Zuma was already implicated in a bi-lateral crime during the trail of Shabir Sheik. It’s not a case of whether or not Jacob Zuma is guilty, it’s a case of how guilty he is. I can’t presume he is innocent of the same crime for which Sheik is doing jailtime. This stems from the nature of that crime. Certainly, I presume Jacob Zuma is innocent of the other chargers of racketeering and fraud. It’s not a very wise presumption, but I am constitutionally required to presume he is innocent.
Secondly, if I were accused of bribery, do you think my employer would be legally required to foot my legal bills? My argument is that Jacob Zuma is getting preferential treatment on the basis of who he is, meaning equality before the law means nothing to the man on the street. It means you have to be well-connected before all the avenues of the legal system are open to you, which is why the Waterkloof Four (whom I technically should also presume where innocent until proven guilty..) did not have their legal bills footed by the government – or by their employers. They weren’t politically well-connected. The same goes for Sheik, who was charged immediately, because he is not as prominent in the ANC as Jacob Zuma. Jacob Zuma was protected because of who he is by not being charged with Sheik, and not victimised as JZ would have us believe.
Thirdly, Thabo Mbeki did give Jacob Zuma the martyr card by firing him. I agree that firing him was not a good move politically, especially since there are many other implicated ANC cronies who are implicated in the oilgate and travelgate scandals, as well as in the Gautrain scandal, who are not facing disciplinary steps. However, again, if I were accused of racketeering and fraud at work, would this not be enough grounds to be fired? Or at least being suspended pending the outcome of an investigation?
To me, all this points to the fact that Jacob Zuma is getting preferential treatment which is not available to the average Jan or Sipho like you and me.
Prof & Mouse, judging by your luke warm and indifferent reply to Zuma’s arguments – compared to your vivacious acceptance of the validity of NPA’s arguments (about few weeks ago – to the extent of suggesting that Nicholson J must be embarrassed by his judgment) it appears to me that you are preparing yourselves for a possibility of a finding in favour of Zuma. It is healthy to always leave a room for disappointment!
The main issue you seem to be taking against the correctness of Zuma’s interpretation of s179(5)(d) is that if the NDPP is reviewing his/her decision there is no “relevant DPP” to be consulted – therefore such interpretation is absurd. This submission is very thin for the following reason: The section lists a number of people who must be consulted by the NDPP before reviewing a decision to prosecute or not to prosecute. Very importantly, the list is not exhaustive, for, other than those specifically listed, the NDPP may consult any other person he/she deems relevant.
It is obvious that if the NDPP is reviewing his own decision there may not be a relevant DPP to be consulted. In that case it follows that no DPP will be consulted. (Although Zuma further argued that in reality, there will always be a relevant DPP from whose jurisdiction the matter emanates). Therefore, the absence of a relevant DPP in a particular case does not gainsay Zuma’s interpretation. If it was imperative that all those listed in the section ought to be consulted (even if they do not exist), it would mean that (according to NPA’s interpretation) in a case where there is no complainant (or victim for that matter – and there are many such cases) s179(5)(d) can never find application because one of the persons listed can not be consulted!
The correct interpretation, I submit, is that if the persons specifically listed in s179(5)(d) exist, they ought to be consulted – the NDPP has no discretion in that regard. The NDPP need not consult non-existent persons. That will be the case where he is reviewing his own decision or where one or more of those listed do not exist for whatever reason.
Prof, the issue of the history of the legislation becomes relevant where the relevant section is ambiguous – s179(5)(d) is not.
I can’t wait to read the judgment!
Anonymous!
Care to update us on the developments in JZ case?
Bongs – you are now “divining”, not interpreting a provision of the Constitution. You have not yet responded to this post
Anonymouse // Nov 28, 2008 at 3:00 pm
Bongs – I can’t wait to read the judgment either, especially in the light of what just happened between Kemp J Kemp SC and Louis Harms DJP.
>Bloemfontein – Judge Chris Nicholson may have effectively found former justice ministers Penuell Maduna and Brigitte Mabandla guilty of political interference despite the act that there were no allegations made against them by ANC president Jacob Zuma, the Supreme Court of Appeal heard on Friday.
Questioned by Deputy Judge President Louis Harms as to whether Zuma had specifically named the two minister in his allegations of political interference, Kemp conceded that neither had been named.
“And the judge finds that they are guilty of a crime?” asked Harms.<
Unzola!
I await your response to your averment of political solution to his criminal matter.
There is no preferential treatment on JZ. It has been stated categorically that should he loose this case, then he will have to reimburse the state from his own pocket. You forgot to reflect on TM, situation. You are also footing his bill with his baseless applications to CC and SCA and yet you are silent on this one. JZ is also entitled to this protection.
There is no preferential treatment!
Mouse @ 3:12, you could have done better by at least answering the following question: In accordance with NPA’s interpretation how, does s179(5)(d) find application in cases where there is no complainant or victim?
Mouse @3:00, I do not understand what fascinates you and Trengove about what Ngcuka said! Even a half-baked prosecutor will never say to an accused/suspect “I am withdrawing charges against / I have taken a decision not to charge you AND I will never charge you in future no matter what happens”.
Just thought I should make everyone aware of this developing story:-
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20081128144835792C773978
hahahahahaha….ha..ha
Mqo, it really pear shaped.
Bongs (Bonginkosi?) – “In accordance with NPA’s interpretation how, does s179(5)(d) find application in cases where there is no complainant or victim?”
It is true that there might be cases where there is no “complainant” (how I detest that term – because there need not be a complainant [or even a complaint] before a criminal investigation is conducted), but, there will always be a “victim”, even if that “victim” be society at large [or even the justice system itself]. That is why the second “and”, concerning the taking of representations (note it has nothing to do with the first “and”, concerning the consultation with the relevant DPP) – “and after taking representations” from the accused person; the complainant;” – is not limited to representations by the accused person and the “complainant”, but also includes “and any other person or party whom the National Director considers to be relevant.” moreover, this last piece of the proviso emphasises that the taking of representations, if necessary, from other persons than the accused, is a discretionary matter – which lends strength to Trengrove’s argument that s 179(5)(d) was not designed to protect an accused person’s so -called “right to be heard”, but that it was merely intended to protect and regulate the Provincial DPPs’ autonomy and that the NDPP may not simply intrude on the Provincial DPP’s decision without anything further.
Bongs – >Mouse @3:00, I do not understand what fascinates you and Trengove about what Ngcuka said! Even a half-baked prosecutor will never say to an accused/suspect “I am withdrawing charges against / I have taken a decision not to charge you AND I will never charge you in future no matter what happens”.<
Are you now suggesting that, in all cases where a prosecutor has stated that the matter is withdrawn provisionally, the prosecutor (or one of his/her seniors) should, before reinstating prosecution must first give the accused the opportunity to be heard? Exactly the one motivation for Mpshe to appeal Nicholson J’s judgment. I don’t think the SCA (or the CC) would go as far.
Sorry – I don’t think the SCA (or the CC) would go as far [to uphold Nicholson J's judgment in this regard].
Mouse, I will ignore your fishing expedition about my identity. An interesting rhetorical question posed by Kemp is: if indeed the legislature’s intention was to confine the NDPP’s reviewing powers to the decision made by the DPP, why did they not say so in both the Constitution and the NPA Act? Surely it is not so difficult to simply say “… may review a decision by the DPP…” and “…after consulting the DPP…”
Don’t get carried away by the exchanges between Harms DJP and Kemp. Do you recall how extensive was Ntsebeza SC ‘grilled’ by the bench in Hlophe’s matter? I need not remind you of the outcome of that case!
Mouse @4:11, sory I used a wrong example by referring to the withdrawal of a charge which has different connotation to ‘a decision to prosecute or not to prosecute’. Lets confine ourselves to ‘a decision to prosecute…” whether it is final, provisional or plain stupid – s179(5)(d) applies if it is to be reviewed.
@Mel:
Had JZ resigned from office, that would have amounted to an admission of guilt by him and I do not think that was ideal.
I missed that one. Also not true. If he did resign, it would not implicate him in anything. It would merely mean that he realises the seriousness of the allegations against him.
I would have preferred for Thabo Mbeki to suspend him, with full pay, pending the outcome of a full public investigation. I personally believe that TM didn’t do this, because he wanted JZ to go down in glory for all the sticky fingers in the arms deal pie.
Ask yourself why Sheik was charged way back when, while JZ wasn’t. Ask yourself why certain members of the NPA were suspended when they tried to charge Zuma, or tried to arrest former police commissioner Jackie Selebi. Note that Jackie Selebi ‘s situation is very, very similar to that of JZ. Note that Jackie Selebi was suspended by TM after being charged, but only after it became public that TM was protecting Selebi.
I believe this would have been the wisest course of action on TM’s behalf – ensuring that JZ gets charged and then suspending him, instead of dismissing him.
I still maintain that JZ is enjoying this leisurely stroll through all the loopholes because of who he is. His name carries a lot of clout, while nobody cares about the Waterkloof Four rotting away in prison.
During an exchange between Harms DJP and Kemp SC, commenting about Nicholson J’s political interference findings, Harms DJP is reported to have said, “Nicholson wasn’t doing Zuma any favours, although he might have thought so”.
If it is true that Harms DJP made this comment in the context it is reported – it is very unfortunate. This comment is pregnant with very dangerous sarcasm and inappropriate attack on Nicholson J’s motive for his findings. It is well for a higher court to criticise the judgment of a lower court. But to venture into speculations about the motives of a judge of a lower court in making a particular finding is, especially in a politically-charged case like this one, inexcusable.
The import of Harms DJP’s alleged comment is that “Nicholson J is mistaken if he thought he was doing Zuma a [political] favour by finding that there was political interference – because I will overturn that decision and undo that favour”. Harms DJP is doing to Nicholson J the very same thing Nicholson is accused of doing to Mbeki – casting aspersions to a person in his absence!
Then when politicians cry foul about the independence of the judiciary we accuse them disrespect.
I really hope that Harms DJP has been misquoted, as it so often happens with the media!
Bongs – Are you referring to this article?
http://www.mg.co.za/article/2008-11-28-judge-grills-zuma-lawyer-on-nicholson-ruling
Note that the specific part of Harms DJP’s alleged uttering is not in inverted commas ” … ” as with other quotations. Note further that this apparently ended Kemp J Kemp’s bout on the secondary issue whether Nicholson J’s ruling that there were clear indications of political interference should be allowed to remain standing, whereafter he was allowed to move on to the more substantive issue of whether Ncholson J’s interpretation of s 179(5)(d) was correct. Remember earlier when this whole issue of Nicholson J’s judgment was debated below on other posts, many eyebrows were raised at why Nicholson J found it at all necessary, without having first heard evidence or proper argument in this regard, to embark on a folly of his own by giving his impression from various media reports in this regard and make findings of political meddling. I, for one, felt that, in the light thereof that there was no evidence, and in the light thereof that Mbeki and the impugned ministers were not afforded the opprtunity to respond (neither was the NPA afforded the opportunity to argue the matter), it would appear as if Nicholson J was partisan to JZ’s arguments in this regard. The major response to this was that, because JZ said something in his papers of political meddling and, because Trengrove requested costs as far as the application to strike out (which wasn’t pursued any further), Nicholson J was entitled to say what he have said on political meddling in his judgment. Now, Kemp J Kemp grudgingly had to concede that there was not anything in the papers, nor was there any evidence that justified Nicholson in making his ruling on political meddling by Mbeki and the two ministers. The first thing that would spring to mind in these circumstances is, why did Nicholson J do it? A remark that he “might” have thought that he was doing Zuma a favour does not seem totally out of place here.
Peter // Nov 28, 2008 at 1:18 pm
Peter // Nov 28, 2008 at 1:18 pm
re dontgetmestarted:
Well said on both accounts. You couldn’t have expressed it better.
Mouse
“A remark that he “might” have thought that he was doing Zuma a favour does not seem totally out of place here.”
Me and you can opine thus. Not Harms DJP who is going to make a ruling about Zuma’s case. What ‘favour’ is he alluding to that Nicholson J was doing for Zuma?
Bongs – “Mouse @4:11, sory I used a wrong example by referring to the withdrawal of a charge which has different connotation to ‘a decision to prosecute or not to prosecute’. Lets confine ourselves to ‘a decision to prosecute…” whether it is final, provisional or plain stupid – s179(5)(d) applies if it is to be reviewed.”
As far as I recall Zuma was originally arraigned with Shaik, but that the matter was then withdrawn in the light of Ngcuka’s stupid opinion that, although there is a prima facie case, the matter against Zuma would not be easily proved (ergo: but, against shaik, it would be easily proved). Nevertheless, withdrawal after a first appearance or an initial decision not to prosecute at that stage amounts to exactly the same thing. As soon as better evidence becomes available, that person can be charged, without first being granted the opoortunity to be heard. He/she would have had that opportunity when he/she was asked to make a warning statement – and as I recall, JZ was asked some questions and, he was allowed to respond to them, before he was formally charged.
Bongs // Nov 28, 2008 at 6:19 pm
……………………………………………………………
That might be so, but, judges often do say stupid things during trials (e.g., Harzenberg in S v Basson telling Ackerman that he is so terribly bored with the state’s case), and that does not vitiate the trial. Often one (presiding officer) is enticed into saying a stupd thing by counsel’s histrionics (Zehir Omar often does that – he did his utmost to get Nicholson J to fall for that trap), and Kemp J Kemp (and others that have argued cases for JZ in the past) is not an exception to employing such tactics. Then, well, yes, I must concede, Harms DJP is notorious for making such stupid remarks at times (I recently witnessed him doing so when he was one of the presenters on a workshop for regional magistrates on intellectual property law) – but, if JZ, Kemp J Kemp (or even Nicholson J) feels aggrieved, and judgment is given against them, let them take the matter further on appeal! (Hlophe JP has even decided to sue the CC judges for defamation! So, Nicholson J is not totally without remedy – IRONY and SARCASM!) Judges have at times said stupid things about some of my judgments in the past, but I survived, and, mostly, when the matter was taken further, those judges were shown to have been wrong in their interpretation of what I have done wrong. For Pete’s sake, ther are five JA’s hearing the appeal, and surely, not all of them will be cowering before Harms DJP’s obiter remarks and judgments.
Mouse, what do you sau to my post @ 4:27?
Mouse @ 6:45, I’m glad you seem to realise Harms DJP’s ingenuity (if he did make those utterances).
Bongs – What part of your 4:27 comment do you want me to rspond to? As far as your identity is concerned, I’m not pursuing that – it is just that there are many Bonginkosi’s and one of my friends is called that. The thing about Kemp J Kemp having been grilled – and the equation with the Hlophe matter – well, there we also differ. I think the majority’s decision in the Hlophe matter was tangibly partisan, and the grilling was just a cover-up for what were coming – but this one is different, I feel it in my guts.
Nevertheless – Good night and have a nice weekend.
Mouse, I forgive you for deliberately avoiding the substantial issue in my post @ 4:27. I am also tired! Have a nice weekend too!
For lindelani and his ilk:
>Judge Mandisa Maya asked Kemp to explain Zuma’s legitimate expectation simply, but Kemp said he could not.
Judge Azar Cachalia said: “In fact what you want them to do is disclose all their evidence and in fact what you wanted to do was conduct the trial through representation.” <
Couldn’t resist the late night peek. Bongs, I’ll deal with your other issue yet.
Prof, I managed to slip inside court today at the SCA and you ll be suprised that Kemp J Kemp had a tough time convincing the court that the NPA ought to have taken representations from Zuma before charging him. Interestingly, I m only seeing your article now, when in fact almost all the questions you are raising where debated from all legal views, and only more questions than answers were found. It was very clear that the NPA Act has many loopholes, pity Zuma might be another of its victim flowing from today s proceedings. Verdict to be given on 12 Jan 2009, as you might by now be aware….impresive Prof, very very impresive legal insight! Thanks.
sarah palin // Nov 28, 2008 at 6:15 pm
You are such a babe, a shoo-in for pres in 2012!
“…brainwashed by education…”
Best. quote. EVER.
As for the technicalities of the argument, I have little to add, as I am not a lawyer of any sorts. However, I must still wonder why an innocent man would go through this sort of exhaustive effort to avoid being proven innocent once and for all in court.
While JZ is of course ENTITLED to utilise all legal avenues open to defend himself (including ones which would preclude him from actually having to do that), entitlement does not mean SHOULD. The argument that he is within his rights is silly – of course he’s exercising his rights, but in doing so he’s just making things appear worse and worse.
TM was ENTITLED to fire the deputy minster of health, because he had a right to do so as president. However, he SHOULD have fired his minister of health. He exercised his right as president, but it wasn’t morally or ethically correct imo.
I don’t know how this whole saga turns out, but I hope it ends soon – it’s making me weary.
Spuy writes: “…pity Zuma might be another of its victim flowing from today s proceedings.”
I honestly don’t understand why Zuma would be a victim when it is obvious that it is the Zuma legal team that is trying very hard to take advantage of the loop hole.
At the end of the day, it should be clear to everyone, including Zuma, what the purpose of the Act is. And if the court bases its ruling on the purpose of that particular Act, then Zuma should not be seen as the victim, really.
Enough already about Zuma being a victim.
This 1st TestPost of my fast browser now testing this interesting blog.
Can laymen too, get ‘heads’ online so fast – the same/next day ?
I’ll try some math/logic notation:-
“NDPP, may NOT review ..UNTIL consulted DPP AND took
representations from the parties”.
Do prosecutions ALL originate at provinsional level, so that
NDPP is only for appeal/review ?
——
Restricting review competence of NDPP to PDs, is indeed absurd.
What is the heirarchy:
1. NatnlDPP,
2. ProvDPP. ?
> But that would mean the National Director could not review
> such decisions taken by prosecutors ..
Does the statute refer to ‘prosecutors’ ?
Where do they fit in the heirarchy ?
> or by a previous National Director
If the ND is the top of the heirarchy, is ANY review
possible ?
Functus officio precludes the officer from changing his OWN
opinion ? And how can he be reviewed by his peers ?
City Press reports that Zuma may take this matter to the ConCourt should the SCA overturn judge Nicholson’s judgement.
Great! He’d rather be presumed innocent indefinitely than be declared innocent once and for all.
Way to go!
Should the ANC not be able to amend the constitution to prevent an incumbent President from facing a trial, what is their plan B – give us Zuma and all the inconveniences that come with that package?
Was Section 179(6) perhaps not enacted to legislate a practice that existed even before the 1996 Constitution? I remember that you could make representations on behalf of your client to the then Attorney-General (the predecessor of the NDPP) to review a decision to prosecute made by a prosecutor. If representations are made after the accused was charged, the prosecutor would simply postpone the matter pending the decision of the AG. The AG would then also consult the relevant parties involved before making a decision. In the same way, if a prosecutor has issued a nolle prosequi, the complainant could make a request to the AG to review the decision, by making representations to the AG as to why the decision taken by the prosecutor is wrong. In reviewing the decision the AG could take representations from the accused. I think where the section refers to the relevant DDP it is also applicable to decisions of prosecutors who resort under the jurisdiction of the relevant DDP.
A review in my mind is always a re-evaluation or re-examination of a decision taken by an authority lower down in the hierarchy . A review is also always prompted by the action of someone who is of the opinion that the original decision was wrong based on the evidence that existed at the time that the decision was made. If circumstances change and new evidence comes to light after the original decision was made the right thing to do would not be a review, but rather presenting the new evidence to the original decision maker and asking him to reconsider the original decision based on the new evidence or circumstances. If the decision maker decides to change his or her decision based on the new circumstances,it won’t be a review, but a decision de novo.
The way it happened at the lower levels of prosecuting is that the investigating officer would present the new evidence (supplemented docket) to the prosecutor, and he or she will based on this new evidence decide to prosecute and reverse the previous decision of nolle prosequi. In such a case there was no review and therefore no presentations by parties.
Is this not what happened when the decision was made to prosecute Zuma based on the new circumstances? That is not a review, but a decision de novo.
I do not understand Carchalia’s comments about “disclosing all the evidence” and “conducting a trial through representation”. An accused is entitled to have insight into the docket anyway, and he could just make representations based on that information. The NDPP could simply weigh up Zuma’s representations against the evidence and make a decision based on that.
Sorry it should be Section 179(5)d.
Just had a look at Section 179(6): “The Cabinet member responsible for the administration of justice must exercise final responsibility over the prosecuting authority.”
“Exercise final responsibility”? I don’t like the sound of this at all.
shakira,
Altho’ I’m mostly interested in admin-law: dispute with a L.A.
[local authority], who are bound by their own ordinance/s;
I hope to learn something applicable from here.
> A review is also always prompted by the action of someone who is
> of the opinion that the original decision was wrong based on the
> evidence that existed at the time that the decision was made.
What about statute ‘known of’ at the time that the decision
was made ?
What about if:
* an application is brought, by rule/s allowing a review [application
for rescission], on grounds that a requirement of the L.A. has been
omitted [where a similar SCA case found against the LA].
* but the Court disallows the review [application for rescission]
on grounds that the argument should have been brought in
the first [self represented] application.
* but the grounds for refusing the first application were WRONG,
so there was no need to do extra research and discover the extra
error of the L.A. There can be multiple confirmations of a fact,
and one should suffice — in science, if not in law ?
Can a case-within-a-case mechanism, re-hear the 1st [appeal
level actually] argument to SEE that the first application SHOULD
have been granted to the [unrepresented] applicant.
Or must the new appeal ‘pretend/give dignity to’ the 1st
‘mistake’, unless it’s overturned by a HIGHER Court.
I.e. the chain of logic that “there was no need to refuse the
2nd application on grounds that the reasons should have
been brought in the 1st application; because the 1st refusal
was wrong”; is broken until the competent authority
establishes that the 1st refusal was wrong.
I.e. to do other wise could be seen as a ‘stealth’ appeal ?
This is related to the functus officio principle too.
If a passport is a valid document to infer eg. your date of
birth, has it ceased to be evidence of date of birth by being
an date-expired-passport ?
PS. Is TPD full bench seen as above WLD appeal ?
I’m looking for counsel/attorney who can THINK above the
level of a clerk, to evaluate my research.
And not like the one who, while repeatedly rebutting my logic,
which I could see, his female assistant/book-keeper
grasped, and telling me that he was a master graduate,
going for doctrate; who when I presented my research
sources, [the ordinance, which encapsulated my/the
interpretation of the reality of the situation] which confirmed
my logic, said:
“OK I’ll take your appeal, but you must pay in advance,
and don’t interfere”. Don’t interfere, after I had to
tutor him !!
PSS. the whole saga of JZ, TM …Selebi is too much for me
except the following jewel which I’ll keep for posterity:
‘……Now the ANC is arguing in court papers that it
does not have to pay back the 3.5 million Rand that Brett Kebble
donated to it. Kebble’s estate is trying to get back the money which
they claimed were paid when he was insolvent. Business Day reports:
In his affidavit, Msimang said “donors receive value for the funds
donated” through the “indirect benefit” that their companies
operated in a political climate “which was borne through the
gallant effort and contribution of the ANC”….’
but what really fools me is, what do the G8 think/say/do about
Selebi being an interpol high official ?
Thanks for any feedback.
JPV,
Yes crime rate is high in S.A
You aking me about the victims?
White people made the situation condusive for crime in S.A as long as the victim is white i have no problem
The only crimes I don’t support are rape, etc but crime purely motivated by socio-economic circumstances provided that the victi is white I have no problem with
We will only see the crime rate slowing down once people feel they got what belong to them from whites
Anonymouse,
Judge Mandisa Maya is Xhosa.
I wouldn’t be surprised to hear that from her
lindelani
pse, do not follow through with the threat of “returning” to practice.Clients need and deserve lawyers that can think,argue rationally,have the ability to be coherent and at least understand the principles of law.Take a tip from an old man,”never be blinded by your own eenogigheid”.Show us YOU CAN contribute to a rational debate.
Lindelani, remember the advice you were given a few weeks ago about rubbishing the Judges. You are going back into Practice. Please don’t cause yourself unecessarry grief. People have already said that they were going to contact Investec over things you have said here. You really don’t want a law society investigation into you because of some silly throw away remark on a blog site.
Anyway, everyone else, Happy World Aids Day. Let’s concentrate on the power of the human spirit to overcome all the challenges this disease has brought us.
After the hearing before the SCA concluded on 28 November, I took the opportunity to read, for the first time, the 65 pages of submissions (plus annexures) made by Trengrove’s team. I have not seen the submissions by JZ’s legal team.
The discussion of s. 179(5) occupied a bare 17 pages, of which five and a half were devoted to the common law background and just over 2 to the legislative history of para. (e).
This last, for those who are interested, is conclusive on the mechanics of the system erected by s.179 – although one may doubt it will be necessary for the SCA to consider it. PdV’s analysis of the legal arguments here omits the most telling part, however.
The consultation provisions of para. (d) were only introduced when the section was amended to give the NDPP power to intervene not only on decisions NOT to prosecute, but also on decisions to prosecute. The difference is that if a prosecution is blocked or halted, the matter will never come to Court or fall under judicial scrutiny, and it is for this reason that the obligation to consult was introduced.
The construction issue is, of course, the meaning of the word “review”, as to which it seems obvious, as a matter of plain English, that it applies to an external audit of the decision taken by another, and does not apply to the consideration or re-consideration by someone of their own previous decisions (or decisions taken by their superiors in office).
The common law background is very suggestive, incidentally, with regard to Hlophe’s dispute with the (members of the) ConCourt, and Trengrove’s team provide high English and Privy Council authority on the question whether the audi alteram partem rule applies when there are at issue those preliminary matters which precede the initiation of any formal process.
lindelani maseko // Dec 1, 2008 at 10:03 am
………………………………………………………………………….
Yet, it one of your earlier posts you asserted, based solely on the racial composition of the bench (before the matter had even been heard) that Maya JA would probably the only one ruling in Zuma’s favour, because the white judges would rule against him. Now, when the shoe fits, Maya’s remarks should be rejected simply because she is a Xhosa and you (and your beloved Jacob Zuma) are Zulu!?! That, as always, is a terribly racist thing to say, and I’m sure, the majority of black (including Zulu) people in this country will agree with me on this issue and would utterly resent your tone. With such a look on life in SA, you will definitely not grow old, and I suggest you urgently review your attitude.
shakira // Nov 30, 2008 at 10:22 am
…………………………………………………………………..
With the correction of s 179(6) to read s 179(5)(d), I agree wholeheartedly with you on this issue.
dontgetmestarted // Dec 1, 2008 at 12:49 pm
………………………………………………………………………
I also agree with everything you have to say on this issue. Thing is, Nicholson J went totally beyond what was before court and decided on a purposive (leaving one wondering whose purpose?) interpretation of s 179(5)(d) while it was not on and a perfectly litteral interptetation would have decided the matter otherwise.
Mouse, how can Lindelani ‘review’ his own attitude? Got you there!!!
Mpho @ 11:15, below is what I said to Lindelani on the 30th October. Since he did not respond to my post I hoped that he will silently heed my humble advice…
“Bongs // Oct 30, 2008 at 10:44 am
Lindelani, my brother, since your identity is out in the open, you need to be very careful about your postings here which may be regarded as contempt of court/judiciary – like insulting a sitting judge. Remember that you are an officer of the court and for your name to remain in the roll of attorneys you must always be a fit and proper person. Your postings may be far from justifying striking your name off the roll but may be enough for the the Law Society to summon you to a disciplinary enquiry for misconduct or to closely monitor your conduct and utterances going forward. At such a tender age of your career, I don’t think that you need such a scrutiny of your conduct. Even if no action is taken against you now, your calling Lewis JA a white b… may come back to haunt you 20 years down the line when the JSC is interviewing you for…!”
Mouse and Bongs,
I do not think that you can knock some sense into Lindelani. I am not exactly sure what is wrong with the guy but he has a certain way of looking at things to see exactly what he wants to see! I think the guy needs serious professional help! A brief history into his life would reveal why he has this resentment which he needs to let go of as soon as it is reasonably practicable!
Those who want to complain to Investec must go ahead and do so!
I will never change my beliefs for no one, I will never compromise my manbeing for no one.
We can never sit aside and look while people are going around calling our president a rapist.
We (and especially me) we never ever tolerate the racist white judges and lawyers who continue to perpetuate their racism within the profession and that is the belief i will die for
If people think I need to be reported to the law society for what i believe in they must go ahead and do so – for what? that i hate white people? i wonder how many white lawyers and judges our there who are practising and sit in our court whereas they continue to be racists.
They won’t be struck from the roll. We judge Lewis continuing to sit in court despite the fact that the complain has been laid (by the Black LawyersAssociation) against her
You ask yourself why was judge president suspended with immediate effect upon the complain laid against him?
These questions remain unanswered! When I raise these concerns I should be struck from the roll, how “wonderful”?
I thought Linelani was a legal secretary? Is that the same thing as a lawyer these days? Or is my information incorrect?
‘I do not think that you can knock some sense into Lindelani.’
Judging by his latest offering, this would seem to be true. If lindelani is a lawyer, and is allowed to go unchecked after his rantings here, then we are in trouble.
Bongs – “Mouse, how can Lindelani ‘review’ his own attitude? Got you there!!!” … Thanks for being sharp and quick enough to grasp that – I was actually attempting to trap you and a few others to engage with me on whether I have now changed my view on whether someone can ‘review’ his own decision. (Lindelani would never understand that.)
I have however not changed my view. In fact, in a post of mine submitted at 1:56 pm (which is still awaiting moderation for some reason or the other), I expressed my total agreement with shakira’s post of Nov 30, 10:22 am and dontgetmestarted’s post of Dec 1, 12:49 pm.
In any case, on the lindelani issue, I agree with you, sne, The Big Slipper and Oscar immediately above. This guy is making himself and, therefore, in the eyes of non-lawers, also other young black lawyers (and the Wits law school where he reportedly qualified), look stupid. The following sentence displays his childish ignorance: “You ask yourself why was judge president suspended with immediate effect upon the complain laid against him?” Hlophe has never been suspended – he has, in consultation with the Minister, decided to take long leave pending the outcome of the complaint to the JSC – almost like Motata and Jackie Selebi. The one who was suspended with immediate effect is Vusi Pikoli.
Anonymouse // Dec 2, 2008 at 10:20 am
“Hlophe has never been suspended – he has, in consultation with the Minister, decided to take long leave pending the outcome of the complaint to the JSC – almost like Motata and Jackie Selebi.”
……………………………………………………………………………….
This is exactly what most Zuma supporters fail to understand! This was done not to indicate that Hlophe is guilty or is being denied of his right to be presumed innocent but he did it out of respect for the office in which he was serving, the judiciary or being a judicial officer!
The respect of the public office which an accused held prior to the allegations against him necessitates that the individual concerned leave the office to maintain respect for that office! It the the reason why Mbeki fired or dismissed Zuma when Zuma refused to leave office until his name is cleared! For him to cling on to power, i.e. being the Deputy-President of the RSA, would have done more injustice to our country in the eyes of the world than to Zuma.
Therefore, on a preponderance of probabilities Mbeki decided that the entire country’s image cannot be tarnished merely because a single individual wants to remain in power until the allegations against him are proved. By then the country’s image would have been tarnished and the investors would have brought the country to its knees because they cannot invest in a country in which the Deputy-President is a suspected curruptee or corruptor, depending on the role played by his financial advisor on his intructions and for his benefit!
This is also applied in the private sector where the share-holders cannot tolerate having as its CEO someone who is alleged to be corrupt! He has to step down until his name is cleared! If we were to think away the moral fibre of Zuma and be left with only the allegations of being corrupt against him, then we would say that he must step aside from the Presidential race until he clears his name and then he cannot re-join it! However, there will still be left his moral fitness or otherwise given the HIV/AIDS status of more than five million South Africans, seen in the lense of his revelations in his rape trial!
Sne – good post and I agree in every respect
Thanks Mouse;
Corrections though;
ADD PARA 3 OF MY SUBMISSIONS:
Last sentence should read “instructions” and not ‘intructions’.
ADD PARA 4 OF MY SUBMISSIONS:
Sentence 3 should read “then he can re-join it” and not ‘cannot re-join it’.
Thanks – I read it correctly though.
A white farmer has been sentenced to only 12 years for killing a young black 15 year boy.
we really do have justice in this country