Its a pity to have to say this, but ANC spokesperson, Brian Sokuto, is shockingly uninformed about the law and the Constitution. Either that, or he is deliberately trying to mislead the public. When denying a news report on Tuesday that early elections would be held on March 25, 2009, he is quoted at IOL as having said the following:
“Reports to the effect that the ANC has come up with a date are totally untrue,” said African National Congress spokesperson Brian Sokutu. He said it was the prerogative of the Independent Electoral Commission (IEC) to set a date for the election.
“No political party can set the date for the elections… The ANC has not done so in the past three elections. Only the IEC is charged with setting a date for the elections. “The ANC will not interfere with the work of the IEC,” said Sokutu.
The problem is, Sokuto is talking utter balderdash. The IEC does NOT set the date for the election. The Constitution determines that the President of the country sets a date for the election of the National Assembly, while Premiers set the date for elections of the various provincial legislatures. This can be done in three different situations.
First the President or Premier must call and set a date for an election by proclamation within 90 days after the term of the legislature has expired. This would mean an election date could be set for anytime between 15 April 2009 and 15 July 2009.
Second, the President or the Premiers can call and set a date for an election by proclamation after the legislature had adopted a resolution to dissolve with a supporting vote of a majority of its members; and at least three years have passed since the last election for that legislature; and the President or Premier was consequently required to dissolve the legislature. This means the ANC can force an election nationally and in each of the provinces any time from now until 15 April 2009, merely by getting the various legislatures to adopt resolutions to dissolve. This would be the way to go if the ANC wants to force an election on March 25 next year.
Thirdly, the President or the Premiers can set an election date by proclamation if the President and/or Premiers resign or are removed from office by the legislatures; and the legislatures then fail to elect a new President and/or Premier within 30 days after the vacancy occurred; and the President and/or Premier is consequently required to dissolve the legislatures. This is a very cumbersome process and will probably not be used by the ANC if it wants the election to be held on 25 March 2009.
The Electoral Act also makes clear that the decision about the date for an election is in the hands of the President and the Premiers, although it makes clear that the voting day must be determined “after consultation with” the Electoral Commission. While the IEC must therefore be consulted, it has no veto over the date set for the election as Sokuto so confidently stated.
One would hope Sokuto will be asked to correct this mistake to avoid further embarrassment . Either that or he will have to produce a more plausible denial. As it stands, Sokuto’s denial does not hold water.
UPDATE: The ANC has now issued a statement which reads in part:
The ANC wishes to point out that responsibility for setting the election date lies with the President of South Africa in consultation with the Independent Electoral Commission (IEC). The ANC is engaged in internal discussions on possible dates for the election should the views of political parties be sought on the matter. The ANC has not taken a decision on which date or dates it would suggest.
This statement is not correct as the date is not set “in consultation with” the IEC as stated, but “after consultation with” the IEC. In legal terms the former suggests the IEC has a veto right on the setting of an election date, but the latter does not. Big difference.
Who are we dealing with in the ANC? Who is the official Spokesperson? What happened to Jessie Duarte? Why do we have a new one every day?
Have these guys no collective memory in the ANC since the previous President was “recalled” – was there no one building a knowledge base of the workings of the constitution and government?
Prof – Thanks for this discussion point. You have succintly set out the legal position surrounding the determination of election dates so that even the ordinary person on the street can understand it. Ii wish that politicians, especially those in the ANC, would bear in mind that there is always a need that the populace must be ‘informed’, not ‘misled’ on important issues such as these. This ‘foot-in-mouth episode’ has led to even experienced lawyers and bloggers (note the exchange between myself and Mdu on one of the previous posts below on the fact that the election date has been determined as 25 march 2009) being misled and misinformed on a very important issue. This also happened with the whole ‘recall-of-Thabo-Mbeki thing’, and had he not resigned, like a loyal ANC cadre should do (or is required to do), one would have encountered massive constitutional problems on electing a new President and/or dissolving Parliament and calling an early election. We should perhaps think about making it compulsory for members of the Executive, Parliament or the different political parties (especially the ruling one), perhaps under threat of criminal sanction, to first obtain sound legal advice before an anouncement involving legal and constitutional issues that might have a profound effect on the well being of citizens is made.
They should be taken away and forcefully “transformed”.
Prof, What an interesting legal workshop. I fully agree, I guess I m 99, 9% P.D.V on this one!….Tatera- I did not know that we can still “forcefully transform” people in Democracy, do u mind elaborating how!…Perhaps we might need your skills to forcefully transform the media and some analysts! Though I fear Constitutional Defender T. Lekota might call another convention based on you freedom of speech!
ANC issued a media statement wherein Mantashe lambasts NPA boss, Mpshe for having allegedly stated that Zuma’s prosecution was political and difficult for NPA to handle! Apparently Mpshe stated this during an interview with City Press.
I tried to google this interview but I could not find it. Has anyone found it?
I can not believe that Mpshe would have been so stupid as to make such a statement!
Prof, what an elucidation!
Mouse, I have to concur I cringed a bit as I was reading this article as I was indeed misled and suspected nothing amiss in Sokutu’s statement.
Bongs, why are you angry with Mpshe- the case is political!
Mdu, I’m not angry with Mpshe – I’m just flabbergasted! This has been denied by NPA and others umpteenth times. How can he now so easily concedes? OR did they ask him a question in the middle of his sleep and he answered whilst still half awake?
Bongs – I could also not find the article or the interview. However, I think that what he would have said (and which could easily have been misinterpreted by the media) is something like the political pressure (influence) on the NPA to stop the Zuma prosecution made the prosecution difficult for the NPA to handle. That would indeed incite a lambasting from Mantashe as the ANC would be very quick to deny that such pressure on the NPA and judicial system is real.(Remember the waves caused by the Zapiro cartoon?)
However, if Mpshe was as stupid to have said that Zuma’s prosecution is political and, therefore, difficult for the NPA to handle, Mantashe would’ve been very stupid to lambast Mpshe, because, as Mdu rightly points out, that has always been the ANC’s (nay, the Zuma camp’s) view and would support their case on appeal.
Bongs et Mdu – This incident, if my interpretation is correct, might also lend support to my argument above that “[w]e should perhaps think about making it compulsory for members of the Executive, Parliament or the different political parties (especially the ruling one), perhaps under threat of criminal sanction, to first obtain sound legal advice before an anouncement involving legal and constitutional issues that might have a profound effect on the well being of citizens is made.”
Bongs -
http://www.google.co.za/search?hl=en&q=%27mpshe+interview+city+press%27&btnG=Go
or google ‘mpshe interview city press’
Bongs,
He did not say that the prosecution was political, he said the trial was political. He did not even say the trial was politically motivated. I do not see why people are getting excited about that. Someone will then need have to give a technical definition of the word ‘prosecution’ and the word ‘trial’.
Anyone who expects politics not to be an over-arching point of pressure in the unraveling of the trial, is not applying themselves properly.
Clara, thanks for your efforts – but none of these searches lead to the actual interview.
Mouse, in the ANC’s statement, inter alia, this is what is recorded:
“These statements clearly confirm once again that the NPA has cast aside all pretence of professionalism or political neutrality – it has come out in the open and has effectively admitted that it is pursuing a political vendetta against President Zuma. In an interview by City Press, 16 November 2008, Mpshe admitted as follows: “.this trial( Jacob Zuma’s corruption trial) was a political trial and was difficult for the NPA to handle.”"
Thanks Bongs and Mouse for your explanations, but something now puzzles me which I did not think about when responding: why would Gwede lambast Mpshe I think Mouse you’ve got it.
Khosi, since the trial proper has not yet commenced (Zuma has not even pleaded) technically, we can only talk of a prosecution. However, you are correct. He is reported as having said “…this trial…”.
But Khosi are you confirming that Mpshe actually uttered these words???
Are you insinuating that there is a difference between ‘a political trial’ and a ‘trial that is politically motivated’???
Please enlighten me!
Mdu & Mouse, maybe I used the word ‘lambast’ incorrectly…The gist of the ANC statement makes a point that Mpshe’s latest utterances confirm what ANC has been complaining about all along.
Bongs – I’ve used the first google result provided by Clara (the report on what Mantashe reportedly said) and clicked on the first word ‘interview’ in the text (being a link in itself) and, voila! It revealed the text of the interview itself. Note however that it is in a kind of shorthand (sumarized) format, quoting Mpshe to have responded as follows on a question posed by the interviewer:
“MM: The roughness came as a result of criticism, especially towards the NPA for having done this and not having done that.
The weight of the roughness came in that this trial (Jacob Zuma’s corruption trial) was a political trial and was difficult for the NPA to handle. Every step that we took, every move that we made had to be analysed or a particular interpretation given to it
But the criticism has – I don’t want to say stopped – but it has scaled down.”
I must agree with Khosi here, that Mpshe never said that the prosecution is a political one – and the quote supports my initial feeling that he was saying that the ‘roughness’ or ‘difficulty’ to handle the prosecution was caused by external political ‘criticism’, always saying the NPA should do (have done) this or that, and it should not do (have done) this or that.
One further thing – one must always bear in mind that media reports (unless it has been video- or audiotaped and verified) are always hearsay, and we as lawyers shouldl always remember that the basic reason why hearsay evidence is treated with a measure of scepticism, is because of the inherent unreliability thereof and the fact that it cannot alwasy be verified.
Mouse, thanks – that is why I wanted to see the interview! I can do no better than repeat what I said to Spuy not so long ago:
“Bongs // Nov 18, 2008 at 4:19 pm
Spuy, politics is indeed a dirty game! That is why I am loathe to engage in politicking. Deliberate misquotes and allowing politicians to get away with murder by not answering questions during interviews – just makes me want to vomit!
Last night I listened to Lekota’s interview on MetroFM. He got away with murder! Not so long ago Msholozi had done the same thing on MetroFM. Sometimes I wish they could be subjected to cross-examination proper!”
Spuy // Nov 19, 2008 at 1:19 pm
“Tatera- I did not know that we can still “forcefully transform” people in Democracy, do u mind elaborating how!…Perhaps we might need your skills to forcefully transform the media and some analysts! Though I fear Constitutional Defender T. Lekota might call another convention based on you freedom of speech!”
Lets do politicians and the judiciary firsts and once we have a real democracy, the media and analysts will look after themselves.
Mouse, talking about deliberate misquotes – Lekota is reported to have said:
“If Helen Zille and I agree [on] something, I am ready to go to my grave with her”
Is this too far from Malema’s infamous statement that he was prepared to kill for Zuma?
The ANC leadership is in a fishing expedition. Any ten year old would have understood that he meant that, because of the person involved, the trial was politically charged. A political trial in, in accordance with the ANC (or Congress of the People, as they now claim they are) and general definition, menas a politically motivated prosecution (typically with little if any reasonable grounds). Mpshe certainly did not suggest this, and if Gwede et alle believe he did, then it explains the poor service delivery (i.e. they can’t not interpret simple policy).
Bongs – that’s stretching it a bit. Malema said “‘we’ are willing to kill for Zuma, ‘we’ are willing to die for Zuma.” Lekota said that he is willing to go to his grave WITH Hellen Zille, IF they agree on something. Meaning that, if that which they agree upon leads to their being stoned or crucified, he (and she – wonder whether he checked this with her first?) is willing to die (not kill) for their cause. Nevertheless, as I have once before indicated, due to my experience of Terror Lekota and his past brushings with the law (in which intoxicating liquor played a very big role), I do not have much trust in him as a leader (or in what he says from time to time). Neither would I rely on Shilowa as a leader (though he sings “Hamba kahle, Umhonto we Sizwe” so nicely). However, I still think the breakaway is good for democracy and, even if COPE could only muster a 20% of the support the ANC had before the breakaway, it would be good.
Vuyo – I agree. Quotations of pieces of an answer out of context can lead to such blunders. I must, however say, that I’ve listened to Malema’s speech that day, and even taking into account the whole speech and the quote “We are prepared to (will) kill for Zuma. We are prepared to (will) die for Zuma” is placed within context, his behaviour remains despicable.
Bongs – O yes, I can tell you, in my experience, Lekota would fold under cross examination proper – but so would many other clowns in the past and current ANC (and other political parties’) structures. Problem with these people (politicians generally – white and black) is they think they know the law, and give themselves out as legal experts (hell, they even write laws!), while, mostly, they haven’t got the foggiest idea of what the law says.
Bongs // Nov 19, 2008 at 4:20 pm
Yes of course it is. Because his willing to die for and die with comments all relate to the threats on HIS life, not the contrary. (I heard a Zuma-ite joke today with regard to Terror having his Ministerial protection withdrawn, the suggestion was that he ask Shilowa for protection given his wealth of experience in the matter!)
Here is the NPA’s clarification on the matter which seems plausible to me based on what was written above.
http://www.politicsweb.co.za/politicsweb/view/politicsweb/en/page71656?oid=110276&sn=Detail
Ok so my first post, I’m told it’s awating moderation. So I repost it and take out the dots, but it still says awaiting moderation! What gives?
Mpho // Nov 19, 2008 at 6:25 pm Your comment is awaiting moderation.
Damn this moderation nonsense!
Mpho // Nov 19, 2008 at 6:23 pm Your comment is awaiting moderation.
Bongs // Nov 19, 2008 at 4:20 pm
Yes of course it is. Because his willing to die for and die with comments all relate to the threats on HIS life, not the contrary. (I heard a Zuma-ite joke today with regard to Terror having his Ministerial protection withdrawn, the suggestion was that he ask Shilowa for protection given his wealth of experience in the matter!)
Here is the NPA’s clarification on the matter which seems plausible to me based on what was written above.
http : // www dot politicsweb dot co.za/politicsweb/view/politicsweb/en/page71656?oid=110276&sn=Detail
Your comment is awaiting moderation.
Mantashe’s nose is growing…
Mouse, Prof and others, in order to expose these politicians for what they really are, I think during the electioneering period there should be a 2 hour radio/TV program called “Court of public opinion” where you have a prominent politician grilled (cross-examined) by some of the top advocates in the country on his/her party’s policies/utterances/track record.
I will die for such a programe!
Politics would indeed by nice. Why do you think cross examination is the main stay of Advocates. Why not just a shred law student, uneducated villager on delivery ?
What Mantashe is trying to do to one of our very important democratic institutions is unacceptable. This new ANC really doesn’t give a shit, does it?
Ishmael, they will be compelled to ANSWER questions and CONCEDE contradictions.
Bongs – Yes such a program would be something “to die for” – metaphorically speaking though, because I’m not willing to kill or die for any political ideology or icon.
Bongs – Whether they will readily “CONCEDE” contradictions might be nothing but a little far-fetched dream in the case of some of them though. In my experioence they normally just go on and come out with a newly adapted version of what they have said earlier, but which makes it sound less like a contradiction.
Bongs // Nov 19, 2008 at 11:00 pm
Bongs, I like your suggestion. It would certainly separate the wheat from the chaff and probably be very entertaining.
I think some machine-guns might jam
I miss Lindelani’s stupid chirps – for extra entertainment I’d like to recommend him as one of those cross-questioning litigators.
Retsrov // Nov 20, 2008 at 8:57 am
“I miss Lindelani’s stupid chirps – for extra entertainment I’d like to recommend him as one of those cross-questioning litigators.”
Lindelani has been quite. I suspect they have taken him away for reorientation/transformation/reconstruction.
Restrov, one of the cardinal rules of cross examination is that harassing a witness or name calling is not allowed. I doubt if my brother Lindelani will resist the temptation of calling some witnesses counter-revolutionaries (LOL). The producer may be forced to cut to commercial breaks now and again sothat behind the scenes “Adv Maseko SC” may be reminded of the rules of the game!
The Society for the Protection of our Constitution’s application to the Cape High Court to have the date of the NPA appeal moved from November 28, 2008 to sometime after the elections raises some pertinent questions:
• What exactly is their interest in the Zuma presidency?
• Can a President Zuma pardon Schabir Schaik?
• Will Zuma oppose the application given that Zuma and his supporters have been complaining about Zuma being investigated for a long time? They have made claims that ‘justice delayed, is justice denied’ and the postponement will further delay justice.
• What are the chances of this application succeeding?
Bongs // Nov 19, 2008 at 11:00 pm
…I think during the electioneering period there should be a 2 hour radio/TV program called “Court of public opinion” where you have a prominent politician grilled (cross-examined) by some of the top advocates in the country on his/her party’s policies/utterances/track record.
I’ve never seen it, but what does Dennis Davis programme consist of? Isn’t he into this sort of thing? If not, Bongs why don’t you put a proposal forward? You could ask Kriegler to conduct the cross-examination!
Actually the format would be quite good if there was examination in chief (Kemp J Kemp could lead Zuma say) and then after that be cross-examined on what he said. That would be quite a cool programme.
Dumisani Mkhize // Nov 20, 2008 at 1:42 pm
They have a history
—————————————————————–
An organisation calling itself the Society for the Protection of our Constitution has applied to intervene on Zuma’s behalf. The society has links to Gauteng-based attorney Zehir Omar. He signed the notice of motion, although affidavits in support of the application to be admitted as amicus curiae were made by William Mahlangu and Yasmin Naidoo. Mahlangu describes himself as a clerk from Delmas, Mpumalanga, and Naidoo works at Omar’s law firm. Omar, on behalf of the society, has reportedly also written to President Thabo Mbeki asking that Zuma’s former financial adviser, Schabir Shaik, who is serving 15 years in jail for his corrupt relationship with Zuma, be given a presidential pardon. In essence, the society says it wants to support Zuma in his bid to have the decision to prosecute him set aside, says a report in The Mercury. But it goes further, also asking for the charges to be quashed or for the prosecution to be stayed until after his term of office as president, should he be elected. The state, however, is asking the judge to throw it out. In his affidavit, Scorpions senior special investigator Johan du Plooy described it as a ‘misguided attempt to lend support to Zuma’.
From Legal Brief
Has Omar paid the costs of his failed bid in the Nicholson application?
Dumisani, Mpho et Bongs – “The Society for the Protection of our Constitution’s application to the Cape High Court to have the date of the NPA appeal moved from November 28, 2008 to sometime after the elections raises some pertinent questions:”
That Joker Omar again!! How can the High Court order the SCA when to hear an appeal? Shit!! I must say that, having had experience of Zehir Omar’s antics and histrionics in the past, and having seen what he did before Nicholson J in a bid to be allowed as amicus, I feel very, very, sorry for the judge or judges that will have to listen to this application.