Lawyers…. and then we pay them for this

I am always surpised at how many legal experts and lawyers get things spectacularly wrong when they write for newspapers or comment on current affairs matters. Don’t they read the relevant sections of the Constitution, the applicable Acts and the case law on those texts? If they do, are they willfully misleading the public or merely intellectually a bit slow?

A case in point is the lawyer for Judge President John Hlophe,Vuyani Ngalwana, (whom I praised last week but really now am deeply disappointed with, given the fact that he has shown himself so unaware of the basic legal and constitutional issues surrouding the Zuma matter and seems to have insulted my professional integrity as well).

Ngalwana, who is allegedly an advocate, argues in an article in Sunday Tribune and again in the Cape Times today that the decision of the NPA to drop charges against Zuma cannot be set aside by a court.

He says that in a case concerning a bid to stop Parliament from passing legislation dismantling the Scorpions, the Constitutional Court ruled it could not interfere with the constitutional function of Parliament. Now, he says, the main opposition party runs to a lower court asking it to interfere with a constitutional function of the prosecuting authority.

That could be dismissed as a stunt to be expected from an opposition political party during the election season. But senior members of the Bar have now appeared on television encouraging this stunt, thus raising questions of political embedded-ness.

He says they know that a decision by the prosecuting authority to prosecute or not does not constitute administrative action and so cannot lawfully be taken on judicial review, and adds:

So why, against their better judgment, do they give this stunt a semblance of legitimacy? Opposition political embedded-ness would seem to be the only reasonable explanation. While nothing is wrong with that, they must tell the public so that it does not wallow in the false belief that theirs is an objective professional opinion when it may well not be.

Well, this is so spectacularly and embarrassingly uninformed that if I was Hlophe I would refuse to pay the legal fees for the work already done in that sad and hopeless matter before the JSC. Did Ngalwana even read the Constitution, the relevant case law or the relevant sections of the Promotion of Administrative Justice Act (PAJA) before putting pen to paper? If he read them, why did he not understand them? 

So, a quick lesson for Advocate Ngalwana is in order. (I take the time to assist Comrade Ngalwana because I assume his utter lack of understanding of the law is genuine and is not disguising a burning ambition to serve in a high position in a Zuma government or the judiciary).

First, section 1(b)(ff) of PAJA states that “a decision to institute or continue a prosecution” is not administrative action. In the Nicholson judgment this was interpreted to mean that while PAJA excludes a decision by the NPA to institute or continue a prosecution from its ambit, it does not exclude a decision to drop charges (in other words, not to continue with a prosecution.) This means a decisision to drop charges may not be excluded from administrative action and can be reviewed.

Now, although this is the most plausible interpretation of the section, one might perhaps argue that a decision “to continue with a prosecution” also includes a decision not to continue with it. I will even concede that it is possible that Nicholson might even have been wrong and that the textually more strained interpretation is better for policy reasons. But at best, this means one cannot categorically state, as Ngalwana does, that a decision to drop charges against an accused is excluded from PAJA.

But that is really not the biggest blunder made by a man who claims that those who hold a different view from his uninformed and embarrasing views are doing so because they are embedded with a political party. (In phsycological terms one would call this transference: see in others what you do not want to admit in yourself.)

He clearly does not understand that the Scorpions case is utterly irrelevant for the present matter and the arguments made by lawyers like myself about why the decision of the NPA may be reviewed. Maybe he should go and read the Doctors for Life, Matatiele and Merafong judgments of the Constitutional Court again. (I say again, because out of the kindness of my heart I assume he has actually read them.) On second thoughts maybe he should read these cases twice each. It might sharpen the mind and stop future public embarrasment and humiliation.

In these cases the Constitutional Court made it very clear that where the Constitution prescribed to Parliament HOW it had to exercise a function or a discretion, the Constitutional Court had every right to “interfere” with the work of Parliament. In such cases the Constitutional Court can declare the Act of Parliament invalid, which they did in Doctors for Life because Parliament had failed to follow the prescribed procedure set out in the Constitution for passing laws because it had not facilitatated public involvement in the lawmnaking process as required by the Constitution.

So, chickens, slowly now (advocate Ngalwana, are you still with me?) remember section 179(5)(a) of the Constitution? It states that the National Director of Public Prosecutions­ must determine, with the concurrence of the Cabinet member responsible for the administration of justice, and after consulting the Directors of Public Prosecutions, prosecution policy, which must be observed in the prosecution process.

So, this is a Constitutional duty placed on the NPA to observe the policy in the prosecution process – very much like the duty placed on Parliament to facilitate public involvement when it makes laws is a constitutional duty. A Court has every right to “interfere” with such a decision if it was not done in accordance with the constitutional prescription set out in section 179(5)(a).

This is – to me at least – so bloody blindingly obvious and the arguments used by Ngalwana so absurd and lazy that (to use a phrase allegedly stolen by Mpshe from a Hong Kong judge) it shocks the conscience.

I dare advocate Ngalwana to a public debate on the legal issues involved. We can also debate who is really embedded with a political party and who is giving bad legal opinions because of such embeddedness. Let us see who is correct in their interpretation of the law and the Constitution. We can even get an independent panel of judges to adjudicate a winner and the loser will have to give one month of his salary to the winner.

As I will win, I hereby promise to donate my winnings to a charity of my choice. Maybe I will start my own charity: “The Vuyani Ngalwana Education Trust”. He sure as hell need some education.

BACK TO TOP